| People v Darpino |
| 2008 NY Slip Op 04003 [51 AD3d 1059] |
| May 1, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Edward F.Darpino, Appellant. |
—[*1] James E. Conboy, District Attorney, Fonda (William J. Mycek of counsel), forrespondent.
Stein, J. Appeal from a judgment of the County Court of Montgomery County (Catena, J.),rendered February 26, 2007, upon a verdict convicting defendant of the crime of criminalcontempt in the first degree.
An order of protection was issued against defendant in favor of the victim, the mother of twoof defendant's children,[FN1]on April 25, 2006 and was served on defendant in court that day. The order of protection requireddefendant to stay away from the victim including, but not limited to, her place of employment.The order expired on May 30, 2006. On May 7, 2006, defendant went with his wife (thengirlfriend) and the two children to the Wal-Mart where the victim had been employed for over ayear to purchase a fishing license and a lure. Defendant's wife approached the sporting goodscounter and the victim waited on her. Defendant's wife then went to get defendant, as she did nothave the money to pay for the license. Defendant's wife testified that she told defendant that thevictim was there working at the counter. Defendant went [*2]tothe counter, paid the victim for the license and left the store.[FN2]
After a jury trial, defendant was convicted of criminal contempt in the first degree(see Penal Law § 215.51 [c]) for violating an order of protection issued againstdefendant in favor of the victim. Defendant was sentenced as a second felony offender to a prisonterm of 1½ to 3 years and ordered to pay certain surcharges and fees. Defendant nowappeals. We affirm.
A defendant is guilty of criminal contempt in the first degree when he or she "commits thecrime of criminal contempt in the second degree as defined in [Penal Law § 215.50 (3)] byviolating that part of a duly served order of protection, or such order of which the defendant hasactual knowledge because he or she was present in court when such order was issued,. . . which requires the . . . defendant to stay away from the person. . . on whose behalf the order was issued, and where the defendant has beenpreviously convicted of the crime of aggravated criminal contempt or criminal contempt in thefirst or second degree for violating an order of protection as described herein within thepreceding five years" (Penal Law § 215.51 [c]). Here, defendant admitted to having actualknowledge of the order of protection as he was in court when it was issued and he signed theorder. Defendant also admitted to three prior convictions of criminal contempt in the seconddegree for violating prior orders of protection which were also issued in favor of the victimwithin the past five years. Defendant knew that this particular Wal-Mart was the victim's place ofemployment, there was some evidence that he knew she was working that day and his wifetestified that he knew the victim was at the sporting goods counter when he approached thecounter.
"Viewing this evidence in the light most favorable to the People, and according the Peoplethe benefit of every reasonable inference" (People v McCowan, 45 AD3d 888, 889 [2007], lv denied 9NY3d 1007 [2007] [citations omitted]), we determine that the evidence was legally sufficient tosupport defendant's conviction (see People v Thompson, 72 NY2d 410, 413 [1988];People v Contes, 60 NY2d 620, 621 [1983]). Likewise, viewing the evidence in a neutrallight and giving appropriate deference to the jury's "superior opportunity to assess the witnesses'credibility" (People v Gilliam, 36AD3d 1151, 1153 [2007], lv denied 8 NY3d 946 [2007]; see People vMcCowan, 45 AD3d at 889; Peoplev Griffin, 26 AD3d 594, 596 [2006], lv denied 7 NY3d 756 [2006]), we do notfind that the verdict was contrary to the weight of the evidence (see People v Bleakley, 69NY2d 490, 495 [1987]; People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]; People v Khuong Dinh Pham, 31AD3d 962, 964 [2006]).
Finally, viewing the totality of the circumstances of this case, we find that defendant receivedmeaningful assistance of counsel (see People v Holland, 279 AD2d 645, 647 [2001],lv denied 96 NY2d 801 [2001]; People v Young, 271 AD2d 751, 752 [2000],lv denied 95 NY2d 859 [2000]). Insofar as defendant complains that defense counselquestioned him in detail regarding two prior criminal contempt convictions,[FN3]the jury had to learn about these convictions, [*3]as they wereelements of the crime charged (see Penal Law § 215.51 [c]), and the mere fact ofthose convictions could have led the jury to question his credibility. Given the overwhelmingevidence of guilt, the failure to obtain a Sandoval ruling on two of defendant's other priorconvictions was harmless error (see People v Young, 271 AD2d at 752; People vLong, 269 AD2d 694, 696 [2000], lv denied 94 NY2d 950 [2000]; People vRodriguez, 111 AD2d 524, 525 [1985]). Furthermore, County Court gave a proper limitinginstruction (see generally People vBarton, 13 AD3d 721, 724 [2004], lv denied 5 NY3d 785 [2005]; comparePeople v Langlois, 265 AD2d 683, 684 [1999]).
Mercure, J.P., Peters, Kane and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: Defendant had physical custodyof these children. The victim had visitation rights with the children on her days off from work.
Footnote 2: The victim testified thatdefendant gave her "the look" while he was at the counter.
Footnote 3: County Court issued aSandoval compromise ruling with respect to the convictions for criminal contempt in thesecond degree which allowed the People to inquire of defendant, in the event that he elected totake the stand, as to the charge and the date only. Defendant elected to testify against hiscounsel's advice.