| People v Cortese |
| 2010 NY Slip Op 09029 [79 AD3d 1281] |
| December 9, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Philip S. Cortese,Appellant. |
—[*1] Nicole M. Duve, District Attorney, Canton (Victoria M. Esposito of counsel), forrespondent.
Spain, J. Appeals (1) from a judgment of the County Court of St. Lawrence County (Richards, J.),rendered December 22, 2008, upon a verdict convicting defendant of the crime of criminal contempt inthe second degree (two counts), and (2) from a judgment of said court, rendered December 17, 2009,which revoked defendant's probation and imposed a sentence of imprisonment.
Defendant and his wife (hereinafter the victim), the parents of two sons, were in the process ofdivorcing when, in January 2008, Family Court, St. Lawrence County issued a stay-away order ofprotection. The order directed defendant to stay away from the victim's home (except when droppingoff the children) and place of employment and, among other things, refrain from "assault, stalking,aggravated harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats orany criminal offense against [the victim]." On March 29, 2008, while that order of protection was ineffect, defendant was arrested following confrontations with the victim inside and then outside of thepolice station in the Village of Massena, St. Lawrence County. After a jury trial, defendant wasconvicted of two counts of criminal contempt in the second degree and sentenced in December 2008 tothree years of probation for each conviction and to time served, to run concurrently. Defendant nowappeals that judgment.[*2]
In June 2009, defendant was charged with violating theconditions of probation by having pleaded guilty to disorderly conduct in May 2009, failing to contactthe local mental health clinic or to attend the local offender accountability program, and othermisconduct. After a hearing, County Court found that defendant had violated two conditions ofprobation, revoked his probation and imposed consecutive one-year jail terms for each of hisunderlying 2008 second degree criminal contempt convictions. Defendant now also appeals from thatjudgment revoking his probation and imposing the jail sentence. We affirm both judgments.
Initially, defendant argues that the weight of the credible evidence failed to establish that he actedwith the requisite intent to disobey the January 2008 order of protection as prescribed in that order andinstead asserts that he engaged in verbal confrontations with the victim in order to protect his childrenand mother from her. As a different verdict would not have been unreasonable, we have weighed theconflicting testimonial accounts of what transpired and independently assess the inferences to be drawn(see People v Bleakley, 69 NY2d 490, 495 [1987]; see also People v Romero, 7 NY3d 633, 643 [2006]).
Viewing the evidence in a neutral light, the testimony of the victim and police officers at the scenefully supports the finding that, having been served with the order of protection, defendant engaged inaggressive conduct and yelled threatening and profane language at the victim, in the police station andthen again outside in the parking lot, requiring police intervention in both incidents. Defendant's intent todisobey that order by intimidating and threatening the victim is readily inferrable from his conduct(see Penal Law § 15.05 [1]; People v Foster, 52 AD3d 957, 958-959 [2008], lv denied 11NY3d 788 [2008]). The victim's account was verified by the police officers, any minor inconsistencieswere not material to the charges and, to a great extent, their account was confirmed by defendant'switnesses. Defendant's contrary testimony suggestive of his innocent intent was neither particularlybelievable nor corroborated by other witnesses. As such, the jury's resolution of the witnesses'respective credibility should be accorded great deference (see People v Portee, 56 AD3d 947, 949 [2008], lv denied 12NY3d 820 [2009]), and we find that its verdict was supported by the weight of the credible evidencethat he intentionally violated the order of protection in both locations (see Penal Law §215.50 [3]).
Defendant's claims of prosecutorial misconduct during the jury trial are unpreserved for our review,as no objections were raised before County Court (see People v Henry, 64 AD3d 804, 806 [2009], lv denied 13NY3d 860 [2009]). Given that a review of the cited errors fails to disclose that any of them operated todeprive defendant of due process or a fair trial, we decline to take corrective action in the interest ofjustice (see CPL 470.15 [3] [c]; seealso People v Weber, 40 AD3d 1267, 1268 [2007], lv denied 9 NY3d 927 [2007]).Likewise, and contrary to his claim, defendant received meaningful representation (see People vHenry, 95 NY2d 563, 565-566 [2000]). The record discloses that counsel made appropriatepretrial motions and objections at trial, vigorously cross-examined witnesses and, despite defendant'sdecision to testify against the advice of counsel, presented a viable defense that resulted in his acquittalof one of the higher counts. To the extent that defendant's contentions are premised on counsel's failureto object to instances of claimed prosecutorial misconduct, we are not persuaded given the lack ofpervasive, flagrant or prejudicial misconduct (see People v Dickson, 58 AD3d 1016, 1018[2009], lv denied 12 NY3d 852 [2009]; People v Weber, 40 AD3d at 1268). Wenote only that the prosecutor properly inquired, in a limited fashion, into defendant's prior relationshipwith the Massena Police Department and any known motive for the officers to provide a false accountof the incidents that would incriminate defendant, given defendant's contrary testimony, and the burden[*3]was never shifted to defendant to explain their possible motive (see People v Allen, 13 AD3d 892,897-898 [2004], lv denied 4 NY3d 883 [2005]; People v Overlee, 236 AD2d 133,138-141 [1997], lv denied 91 NY2d 976 [1998]).
With regard to his sentence upon his convictions, defendant contends that County Court violatedPenal Law § 60.01 (2) (d) by imposing a sentence of probation in addition to and concurrentlywith "time served," which had totaled 86 days of custody prior to sentencing. Defendant is correct thatthis statute authorizes a court to impose a split sentence of up to 60 days in jail for a misdemeanor, ashere (or six months for a felony), together with a term of probation (Penal Law § 60.01 [2] [d];see People v Zephrin, 14 NY3d296, 299-300 [2010]), which together cannot exceed the authorized term ofprobation—here, three years (see Penal Law § 65.00 [3] [b] [i]). We agree withthe reasoning of the Second Department, however, that "the mere fact that [a defendant] had been incustody for a period in excess of 60 days before sentencing did not render the sentence [to time servedplus three years of probation] illegally excessive" (People v Conley, 70 AD3d 961, 962 [2010], lv denied 14NY3d 886 [2010]). In our view, County Court was using the phrase "time served" in its colloquialrather than technical sense, and should more accurately have expressly imposed a sentence of 60 daysof imprisonment which was satisfied by the "time served" by defendant (86 days) while awaitingconviction and sentencing, combined with three years of probation; accordingly, we find that this is thesentence that was effectively imposed (see id.; People v Marinaccio, 297 AD2d 754,755 [2002], lv denied 99 NY2d 560 [2002]). That defendant had served in excess of themaximum 60 days in jail before being convicted did not preclude imposition of the split sentenceauthorized by Penal Law § 60.01 (2) (d) and § 65.00 (3) (b) (i) (i.e., 60 days in prisonand three years of probation, concurrent). Thus, we find that the three-year term of probation imposedwas proper and ran concurrently with the 60-day jail sentence (which was satisfied by defendant's timeserved).[FN*]
Finally, turning to the sentence imposed for violating probation, we are not persuaded that CountyCourt's December 2009 revocation of his probation and sentence of consecutive one-year jail terms isharsh or excessive. The record reflects that when the court imposed probation as part of his sentence inDecember 2008 for his criminal contempt convictions, it took into consideration defendant's mentalhealth problems, efforts to improve his life and desire to resume a relationship with his sons, and took aleap of faith—against the recommendation of the Probation Department—in giving him anopportunity to complete supervised probation in lieu of a lengthy sentence. However, in June 2009,defendant was charged with multiple, serious instances of violating probation and making threats againstseveral individuals and, after a [*4]hearing, the court determined that hehad done so, by (1) his guilty plea to disorderly conduct in satisfaction of charges related to an incidentin January 2009, and (2) his failure to cooperate with a program for domestic violence offendersrecommended by the Probation Department. While defendant was awaiting sentence on theseviolations, he was arrested and charged with violating an order of protection in favor of another womanand threatening a man in her company.
The record as a whole reflects defendant's history of refusing to comply with court orders,probation officers' directions and probation conditions, his ongoing threatening and uncooperativebehavior, and his failure to take responsibility for his actions or to successfully address his underlyingproblems. Thus, we are not convinced that County Court abused its discretion in concluding thatprobation had not and would not work for defendant and in imposing maximum consecutive one-yearjail terms. While closely related in time, the incidents inside the police station and out in the parking lotwere separate and distinct. Accordingly, consecutive sentences were proper (see Penal Law§ 70.25 [2]; People v Parks, 95 NY2d 811, 814-815 [2000]).
Defendant's remaining claims have been reviewed and determined to lack merit.
Peters, J.P., Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgments are affirmed.
Footnote *: We note that defendant's concurrentsentence was imposed on December 22, 2008 and both the jail sentence (60 days) and theprobationary terms (three years) are reduced by the time served prior to conviction of 60 days,not 86 days as County Court stated, as the term of probation can only be reduced by time-servedcredit equal to the sentence of incarceration (see People v Zephrin, 14 NY3d at 300-301).Thus, defendant's probationary term should have been set to expire on October 23, 2011 (notSeptember 27, 2011). Given defendant's violation of that probation in 2009 and subsequent revocationand resentencing, that issue is moot.