| People v Coston |
| 2008 NY Slip Op 07800 [55 AD3d 943] |
| October 16, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Larry Coston,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Pulver, Jr., J.), rendered July 20, 2005 inUlster County, upon a verdict convicting defendant of the crimes of aggravated criminal contempt andcriminal contempt in the first degree.
In August 2001, an order of protection was entered against defendant relating to his formergirlfriend (hereinafter the victim). In the spring of 2002, the victim received a personal injury settlementcheck in the amount of approximately $8,000. Defendant was aware that the victim was going toreceive the money as he had previously accompanied her to her lawyer's office. In June 2002,defendant went to the victim's apartment and, after arguing with the victim, hit her in the head with ahammer and stole what then remained of the settlement money—approximately $6,800. Thevictim was transported by ambulance to the hospital, where she was treated for a head abrasion.
A warrant was issued for defendant's arrest; however, he was not apprehended until approximatelytwo years later. Defendant was charged by grand jury indictment with the crimes of robbery in the firstdegree, robbery in the second degree, assault in the second degree, aggravated criminal contempt,grand larceny in the third degree, criminal contempt in the first [*2]degree, forgery in the second degree and falsifying business records in thefirst degree.[FN*]After a jury trial, defendant was convicted of the crimes of aggravated criminal contempt and criminalcontempt in the first degree. He was acquitted of all other charges. Defendant was sentenced toconcurrent prison terms of 2
Initially, we find that, inasmuch as defendant failed to make a " 'detailed, specific motion addressedto the claimed deficiencies in the evidence' " (People v Craft, 36 AD3d 1145, 1146 [2007], lv denied 8NY3d 945 [2007], quoting People vRiddick, 34 AD3d 923, 924 [2006], lv denied 9 NY3d 868 [2007]), his contentionthat the evidence is legally insufficient to establish that the victim sustained a physical injury as requiredto support a conviction of aggravated criminal contempt under Penal Law § 215.52 isunpreserved for our review. Next, we reject defendant's contention that his conviction was against theweight of the evidence. Where, "based on all the credible evidence a different finding would not havebeen unreasonable" (People v Bleakley, 69 NY2d 490, 495 [1987]), "the court must [then]weigh conflicting testimony, review any rational inferences that may [have been] drawn from theevidence and evaluate the strength of such conclusions. Based on the weight of the credible evidence,the court then decides whether the jury was justified in finding the defendant guilty beyond a reasonabledoubt" (People v Danielson, 9 NY3d342, 348 [2007] [citation omitted]; seePeople v Romero, 7 NY3d 633, 636 [2006]; People v Bleakley, 69 NY2d at 495;People v Khuong Dinh Pham, 31 AD3d962, 964 [2006]). If the appellate court concludes that " 'the trier of fact . . . failed togive the evidence the weight it should be accorded, then the . . . court may set aside theverdict' " (People v Romero, 7 NY3d at 643-644, quoting People v Bleakley, 69NY2d at 495).
In order to prove that defendant committed the crime of criminal contempt in the first degree, thePeople were required to establish that, in violating the order of protection, defendant, with the intent tothreaten the person for whom the order was issued, subjected such person to physical contact(see Penal Law § 215.51 [b] [v]). To prove that defendant committed the crime ofaggravated criminal contempt, the People must establish that, in violation of an order of protection,defendant intentionally or recklessly caused physical injury to the person for whom the order wasentered (see Penal Law § 215.52 [1]). For purposes of Penal Law § 215.52,"physical injury" is defined as "impairment of physical condition or substantial pain" (Penal Law §10.00 [9]).
Here, a different finding would not have been unreasonable given the inconsistencies between thevictim's testimony and her prior statements and the lack of physical evidence linking defendant to thevictim's home. However, there was record evidence that an order of protection was issued for thevictim directing defendant to stay away from her. The victim testified that defendant went to herapartment while the order was in place and that he hit her in the head with a hammer, causing her tolose consciousness and to suffer an abrasion and substantial bleeding. She further testified that the blowto her head was very painful. The victim's neighbor testified that he heard a commotion upstairs andcalled the police. The neighbor also testified that he saw defendant leave the victim's apartment and heobserved the victim in a "semiconscious" state and bleeding. In addition, a police officer who respondedto the scene testified that he found the [*3]victim covered in bloodemanating from a head wound. Similarly, the detective who interviewed the victim at the hospital notedthat he observed abrasions on the back of her head, and the emergency room administrator testifiedthat the lab work indicated that the victim sustained trauma to her head. Viewing the evidence in aneutral light and giving "appropriate deference to the jury's superior opportunity to assess the witnesses'credibility" (People v Gilliam, 36 AD3d1151, 1152-1153 [2007], lv denied 8 NY3d 946 [2007]; see People v Griffin, 26 AD3d 594,596 [2006], lv denied 7 NY3d 756 [2006]), we conclude that the verdict was in accord withthe weight of the evidence (see People v Bleakley, 69 NY2d at 495).
Finally, regarding defendant's challenge to the restitution order, since defendant failed to request ahearing to determine the amount of restitution or to otherwise object to the amount of the award, hiscontention that the award was not supported by sufficient evidence is not preserved for our review(see People v Horne, 97 NY2d 404, 414 n 3 [2002]). We may, however, review defendant'scontention that the imposition of restitution was illegal regardless of whether defendant objected at trial(see CPL 470.15 [4] [c]).
Defendant argues that the convictions for aggravated criminal contempt and criminal contempt inthe first degree (hereinafter the contempt convictions) did not constitute offenses under Penal Law§ 60.27 because there were no out-of-pocket losses occasioned by those offenses anddefendant was acquitted of the robbery and grand larceny charges (hereinafter the theft charges).However, pursuant to Penal Law § 60.27 (4) (a), "the term 'offense' shall include the offense forwhich a defendant was convicted, as well as any other offense that is part of the same criminaltransaction." A "criminal transaction" consists of "conduct which establishes at least one offense, andwhich is comprised of two or more or a group of acts . . . so closely related andconnected in point of time and circumstance of commission as to constitute a single criminal incident"(CPL 40.10 [2]).
Under the circumstances here, we find that the contempt convictions were part of the same criminaltransaction as the theft of the victim's money, having occurred simultaneously thereto (see PenalLaw § 60.27 [4] [a]; CPL 40.10 [2]). The fact that the jury did not convict defendant of the theftcharges does not mean that he is innocent of those charges. Rather, the lack of a conviction merely"stands for the proposition that a jury was not convinced of defendant's guilt beyond a reasonabledoubt" (People v Horne, 97 NY2d at 413).
Nonetheless, the matter must be remitted with regard to the manner of payment of the restitutionaward, as there is no evidence in the record that Supreme Court considered defendant's ability to pay,as it is bound to do (see People v Chiera, 255 AD2d 685, 685 [1998]; People vDominique, 229 AD2d 719, 720-721 [1996], affd 90 NY2d 880 [1997]; People vMonette, 199 AD2d 589 [1993]; People v Robinson, 174 AD2d 779 [1991]; seealso Penal Law § 65.10 [2] [g]).
Spain, J.P., Lahtinen, Kane and Malone Jr., JJ., concur. Ordered that the judgment is modified, onthe law, by reversing the order of restitution; matter remitted to the Supreme Court for furtherproceedings not inconsistent with this Court's decision; and, as so modified, affirmed.
Footnote *: When defendant was beingprocessed in the county jail, he signed the required documents with the name "Larry McCullough."