| People v Davis |
| 2015 NY Slip Op 08003 [133 AD3d 911] |
| November 5, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vEric Davis, Appellant. |
Terrence M. Kelly, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the County Court of Albany County (Lynch,J.), rendered March 26, 2013, upon a verdict convicting defendant of the crimes ofcriminal contempt in the first degree and endangering the welfare of a child (threecounts).
Defendant was charged in an eight-count indictment with identity theft in the firstdegree, grand larceny in the third degree, criminal possession of stolen property in thefourth degree (two counts), aggravated criminal contempt and endangering the welfare ofa child (three counts). The charges stemmed from an incident that occurred in June 2012,during the course of which defendant—in violation of an admittedly valid order ofprotection—entered the home of his former girlfriend (hereinafter the victim) andassaulted her in front of her three minor children. Following a jury trial, defendant wasconvicted of criminal contempt in the first degree[FN*] and three counts of endangering thewelfare of a child and was acquitted of the remaining [*2]charges. Defendant thereafter was sentenced to anaggregate prison term of 1
Defendant initially contends that the underlying convictions are not supported bylegally sufficient evidence and, further, are against the weight of the evidence. Inasmuchas defendant's motion for a trial order of dismissal was expressly limited to the threecounts of the indictment charging him with endangering the welfare of a child,defendant's legal sufficiency claim relative to his conviction of criminal contempt in thefirst degree is unpreserved for our review (see People v Simmons, 115 AD3d 1018, 1019 [2014]).That said, our weight of the evidence review "necessarily includes our verification thatthe elements of the crime were established" (People v Wingo, 103 AD3d 1036, 1036 [2013], lvdenied 21 NY3d 1021 [2013]; see People v Pine, 126 AD3d 1112, 1114 [2015]). As isrelevant here, "[a] person is guilty of criminal contempt in the first degree when. . . in violation of a duly served order of protection, or such order of whichthe defendant has actual knowledge because he or she was present in court when suchorder was issued, . . . he or she . . . with intent to harass, annoy,threaten or alarm a person for whose protection such order was issued, strikes, shoves,kicks or otherwise subjects such other person to physical contact or attempts or threatensto do the same" (Penal Law § 215.51 [b] [v]; see People v Dixon, 118 AD3d1188, 1188-1189 [2014]). Additionally, a person is guilty of endangering thewelfare of a child when, among other things, "[h]e or she knowingly acts in a mannerlikely to be injurious to the physical, mental or moral welfare of a child less than [17]years old" (Penal Law § 260.10 [1]).
Preliminarily, defendant does not dispute that he violated a valid no-contact order ofprotection by appearing at the victim's home on the day in question. Rather, defendantargues that the record fails to establish that—with the requisite intent—hesubjected the victim to physical contact or threatened to do the same. We disagree.
The victim testified at length regarding the details of the underlying assault.Specifically, the victim recounted that, on the day in question, she confronted defendantregarding certain moneys that were missing from her bank accounts. As the conversation,which began in the victim's bedroom, progressed, "[t]hings escalated," and defendantslapped the victim in the face. The victim then called 911, in response to whichdefendant slapped her again, grabbed her, threw her on the bed and began hitting andchoking her. The victim's three minor children, who had been watching television in theirbedroom, heard the commotion and began screaming and begging defendant to let go oftheir mother. According to the victim, defendant then dragged her out into the hallway ofthe residence, where he slapped her and slammed her up against the wall. Whendefendant heard the police at the door, he punched the victim's jaw and ear, pushed thevictim's children aside and fled through a bedroom window. The victim's testimony madeclear that each of her children witnessed much of what transpired, including "watchingtheir mother get the life beat out of her" by defendant. The victim's testimony wascorroborated in certain respects by the testimony of the responding police officers, aswell as the victim's medical records.
[*3] Asnoted previously, defendant concedes that he violated the underlying order of protectionby being present in the victim's residence on the day in question. As to the remainingelements, intent may be inferred from the surrounding circumstances (cf. Matter of Vanita UU. vMahender VV., 130 AD3d 1161, 1166 [2015]; see generally People vMcLean, 128 AD3d 1106, 1108 [2015], lv denied 25 NY3d 1204[2015]) and, in light of the victim's testimony as to the manner in which defendantslapped, hit, choked and/or punched her, which the jury was entitled to credit as to thesustained charges (see People vBeliard, 101 AD3d 1236, 1239 [2012], lv denied 20 NY3d 1096 [2013];People v Hoppe, 96 AD3d1157, 1159 [2012], lv denied 19 NY3d 1026 [2012]), we discern no basisupon which to disturb the jury's verdict convicting defendant of the crimes of criminalcontempt in the first degree (see People v Dixon, 118 AD3d at 1188-1189) andendangering the welfare of a child (three counts) (see People v Lawing, 110 AD3d 1354, 1355-1356 [2013],lv denied 22 NY3d 1200 [2014]; People v Bell, 80 AD3d 891, 891 [2011]; People v Bray, 46 AD3d1232, 1234 [2007]).
Finally, to the extent that defendant takes issue with the scope of the missing witnesscharge given by County Court, we need note only that, inasmuch as defendant "did notobject to the charge that was given or request different language," this issue isunpreserved for our review (People v Watkins, 121 AD3d 1425, 1427 [2014], lvdenied 24 NY3d 1124 [2015]; cf. People v Quinones, 41 AD3d 868, 868 [2007], lvdenied 9 NY3d 1008 [2007]), and we decline defendant's invitation to set aside thejury's verdict in the interest of justice. Accordingly, the judgment of conviction isaffirmed.
Lahtinen, J.P., Devine and Clark, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:Although not addressedby the parties, criminal contempt in the first degree is not a lesser included offense ofaggravated criminal contempt in the first degree (see People v Hira, 100 AD3d 922, 924 [2012], lvdenied 21 NY3d 943 [2013]; People v Wilmore, 305 AD2d 117, 118 [2003],lv denied 100 NY2d 589 [2003]) and, therefore, County Court inaccuratelycharacterized the offense as such in its charge to the jury. Defendant, however, failed toobject to the charge as given and, therefore, has waived any issue in this regard (seePeople v Ford, 62 NY2d 275, 282-283 [1984]; see also People v Mitchell, 39 AD3d 357, 358 [2007],affd 10 NY3d 819 [2008]; People v Cuadrado, 37 AD3d 218, 220 [2007], affd9 NY3d 362 [2007]).