Opinion
KA 02-01961.
Decided June 14, 2004.
Appeal from a judgment of the Supreme Court, Monroe County (Donald J. Mark, J.), rendered November 9, 2000. The judgment convicted defendant, upon a jury verdict, of absconding from temporary release in the first degree.
EDWARD J. NOWAK, PUBLIC DEFENDER, ROCHESTER (DREW R. DU BRIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (STEPHEN X. O'BRIEN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: PRESENT: PIGOTT, JR., P.J., PINE, WISNER, SCUDDER, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of absconding from temporary release in the first degree (Penal Law § 205.17). The evidence establishes that defendant failed to return to the Rochester Correctional Facility after his temporary release from custody pursuant to a work release program. Although defendant contends that Supreme Court erred in refusing to redact an entry in a logbook received in evidence as People's exhibit No. 6, we note that the court minimized any prejudice arising from the entry by issuing a limiting instruction ( see People v. Carrion, 1 A.D.3d 109, lv denied 1 N.Y.3d 596), which the jury is presumed to have followed ( see People v. Owens, 214 A.D.2d 480, 481, lv denied 86 N.Y.2d 799) . Defendant's challenge to the sufficiency of the limiting instruction is not preserved for our review ( see CPL 470.05; People v. Santiago, 52 N.Y.2d 865, 866), and we decline to exercise our power to review it as a matter of discretion in the interest of justice ( see 470.15 [6] [a]). Certain of defendant's further contentions regarding the receipt of allegedly inadmissible hearsay testimony are not preserved for our review ( see 470.05 [2]) and, in any event, any alleged error arising from the admission of that testimony is harmless ( see People v. Kello, 96 N.Y.2d 740, 744). Finally, the sentence is not unduly harsh or severe.