| People v Rodriguez |
| 2022 NY Slip Op 05336 |
| Decided on September 28, 2022 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on September 28, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
VALERIE BRATHWAITE NELSON, J.P.
REINALDO E. RIVERA
CHERYL E. CHAMBERS
SHERI S. ROMAN, JJ.
2017-01284
(Ind. No. 2532/15)
v
Luis A. Rodriguez, appellant.
Patricia Pazner, New York, NY (Samuel Barr of counsel), for appellant.
Melinda Katz, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, and Jill A. Gross-Marks of counsel), for respondent.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Ira H. Margulis, J.), rendered January 12, 2017, convicting him of attempted use of a child in a sexual performance, disseminating indecent material to a minor in the first degree, and endangering the welfare of a child, upon a jury verdict, and imposing sentence. By decision and order dated October 21, 2020, this Court reversed the judgment and remitted the matter to the Supreme Court for further proceedings (see People v Rodriguez, 187 AD3d 1063). On May 19, 2022, the Court of Appeals reversed the decision and order of this Court and remitted the matter to this Court for consideration of issues raised but not determined on appeal to this Court (see People v Rodriguez, 38 NY3d 151).
ORDERED that, upon remittitur from the Court of Appeals, the judgment is affirmed.
The defendant's contention that the counts of the indictment charging him with attempted use of a child in a sexual performance and disseminating indecent material to a minor in the first degree were rendered duplicitous by trial testimony is unpreserved for appellate review (see CPL 470.05[2]; People v Becoats, 17 NY3d 643, 650-651; People v Bentley, 186 AD3d 844, 845), and we decline to reach it in the exercise of our interest of justice jurisdiction (see CPL 470.15[6]; People v Craig, 187 AD3d 1039, 1040; People v Adams, 140 AD3d 1179, 1180).
The sentence imposed was not excessive (see People v Suitte, 90 AD2d 80).
BRATHWAITE NELSON, J.P., RIVERA, CHAMBERS and ROMAN, JJ., concur.
ENTER:Maria T. Fasulo
Clerk of the Court