| People v Richardson |
| 2017 NY Slip Op 07640 [155 AD3d 1099] |
| November 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v George Richardson, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Theresa M. Suozzi of counsel), forappellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Peters, P.J. Appeal from a judgment of the County Court of Albany County (Ceresia, J.),rendered November 24, 2014, upon a verdict convicting defendant of the crimes of criminalcontempt in the first degree (two counts) and criminal contempt in the second degree.
Defendant was charged by two indictments with criminal obstruction of breathing or bloodcirculation, assault in the third degree, criminal contempt in the second degree and two counts ofcriminal contempt in the first degree. The charges stem from an incident in which defendantallegedly strangled his former paramour (hereinafter the victim) and then repeatedly violated ano-contact order of protection entered in her favor while incarcerated on the underlying charges.Following a jury trial, defendant was convicted of the criminal contempt counts, acquitted of theremaining charges and sentenced, as a second felony offender, to an aggregate prison term of 2 to4 years. He appeals.
We reject defendant's contention that County Court erred in finding that he was competent tostand trial. "The key inquiry in determining whether a criminal defendant is fit for trial is whetherhe or she has sufficient present ability to consult with his or her lawyer with a reasonable degreeof rational understanding—and whether he or she has a rational as well as factualunderstanding of the proceedings against him or her" (People v Phillips, 16 NY3d 510, 516 [2011] [internal quotationmarks, brackets and citation omitted]; see CPL 730.10 [1]; People v Kendall, 91 AD3d 1191,1192 [2012]). In undertaking this task, "a court may take into account the findings of anycompetency examination as well as its own observations of [the] defendant" (People v Passaro, 86 AD3d 717,718 [2011]; see People v Phillips, 16 NY3d at 517; People v Gensler, 72 NY2d239, 244 [1988], cert denied 488 US 932 [1988]). Upon review, we accord substantialdeference to the trial court's determination (see People v Phillips, 16 NY3d at 517; People v Hadfield, 119 AD3d1217, 1219 [2014], lv denied 25 NY3d 989 [2015]; People v Surdis, 77 AD3d 1018,1018-1019 [2010], lv denied 16 NY3d 800 [2011]).
Defendant was examined by two psychologists, each of whom found that he was competentto stand trial. Although one of the psychologists noted that defendant appeared irrational at timesand opined that defendant suffered from some form of psychotic disorder, both ultimatelyconcluded that defendant understood the judicial process, the charges against him and the roles ofthe various participants, and that he was capable of assisting in his own defense. Indeed,defendant's own testimony at the hearing confirmed his understanding and appreciation of thelegal proceedings and the nature of the offenses with which he was charged. County Court "fullycredit[ed]" the testimony and opinions of the examining psychologists and, having observeddefendant during the several court appearances on the two indictments, further noted thatdefendant "listen[ed] attentively" and interacted in a cooperative manner with his attorney duringthe competency hearing and characterized his behavior as similarly appropriate during all of theprior appearances. Upon the record before us, we discern no basis upon which to disturb CountyCourt's ruling that defendant was competent to stand trial (see People v Wright, 107 AD3d 1398, 1399 [2013], lvdenied 23 NY3d 1026 [2014]; People v Kendall, 91 AD3d at 1192-1193; Peoplev Passaro, 86 AD3d at 718-719; People v Terry, 85 AD3d 1485, 1486 [2011], lv denied 17NY3d 862 [2011]; People v Dewey,18 AD3d 894, 895 [2005]).
Defendant also asserts that the verdict is against the weight of the evidence, specificallyclaiming that the evidence failed to establish the element of intent necessary to sustain thecontempt charges. To convict defendant of criminal contempt in the first degree under Penal Law§ 215.51 (b) (ii), the People were required to prove that, "in violation of a dulyserved order of protection, or such order of which the defendant has actual knowledge because heor she was present in court when such order was issued," defendant "intentionally place[d] orattempt[ed] to place [the victim] in reasonable fear of physical injury, serious physical injury ordeath by . . . engaging in a course of conduct or repeatedly committing acts over aperiod of time." To convict defendant of criminal contempt in the first degree under Penal Law§ 215.51 (b) (iv), the People were required to prove that defendant, in violation ofsuch an order of protection, "repeatedly ma[de] telephone calls to [the victim], whether or not aconversation ensue[d], with no purpose of legitimate communication," and did so with the "intentto harass, annoy, threaten or alarm [the victim]." To secure a conviction of criminal contempt inthe second degree, the People were required to prove that defendant intentionally disobeyed orresisted the lawful process or other mandate of a court in a case other than one involving orgrowing out of a labor dispute (see Penal Law § 215.50 [3]).
The proof at trial established that, in response to the alleged incident of domestic abuse thatformed the basis for the assault and criminal obstruction of breathing or blood circulationcharges, an order of protection was issued in January 2013 that prohibited defendant fromcontacting or communicating with the victim by any means. Such order was issued in court andwas signed by defendant, indicating his receipt thereof. The People introduced jail call recordsand recordings demonstrating that defendant attempted to call the victim multiple times inFebruary and March 2013, while the order of protection was in place, and actually spoke to thevictim on three such occasions. During those phone calls, defendant made references to theunderlying charges, ordered the victim to recant her statements to police, stated that a warranthad been issued for her arrest and made various express and implied threats towards the victimand her daughter. The victim explained that, although she initially wanted to speak withdefendant, she subsequently felt scared and upset due to the statements that he made during thosephone calls and requested that defendant not contact her anymore. Despite this request, thevictim testified that she received numerous letters in defendant's handwriting that contained areturn address listing defendant's name, prison identification number and the address of thedetention facility where he was being held. Over a dozen such letters were admitted intoevidence, all of which are postmarked on dates during which the no-contact order of protectionwas in place. Many of the letters contained explicit or implicit threats of violence against thevictim. In one such letter, defendant warned, "don't get no funny ideas bitch[,] I'm gonna bewatching you real close[.] Start talking stupid again and you know what I mean and it's [a] rap foryou." In another, defendant stated, "I ain't gonna kill you"—while highlighting the words"kill you"—and threatened an "ass whooping" upon his release from confinement. In yetanother, defendant advised the victim that she "f . . . ed with the wrong n. . . a" and that he was "gonna get [her] back regardless," cautioning her "not [to]underestimate [his] ability and capabilities."
At trial, defendant testified to his awareness that an order of protection was in effectprohibiting him from having contact with the victim, but claimed that the victim initiated thecontact by providing him with her phone number and that he did not intend to threaten or harassthe victim when he communicated with her. He presented the testimony of a psychiatric nursewho opined that defendant suffers from a "major psychiatric illness," and now contends that, inlight of this impairment, he lacked the requisite intent necessary to be convicted of the chargedcrimes.[FN*] It is settled,however, that "defendant's intent may be inferred from the surrounding circumstances, including[his] words or conduct, and [any] 'competing inferences to be drawn regarding defendant's intent,if not unreasonable, are the exclusive domain of the finders of fact, not to be disturbed by thisCourt' " (People v McLean,128 AD3d 1106, 1108 [2015] [citation, brackets and ellipsis omitted], lv denied 25NY3d 1204 [2015], quoting People vGordon, 23 NY3d 643, 650 [2014]; see People v Davis, 133 AD3d 911, 913-914 [2015]; People v Gordon, 119 AD3d 1284,1286 [2014], lv denied 24 NY3d 1002 [2014]). Considering the content of the phonecalls and letters and the reasonable inferences that may be drawn therefrom, a jury couldrationally conclude that defendant possessed the requisite intent to commit the charged crimes.Accordingly, although a different verdict would not have been unreasonable, after viewing theevidence in a neutral light and according due deference to the jury's factual assessments andcredibility determinations (see People vGarcia, 141 AD3d 861, 863 [2016], lv denied 28 NY3d 929 [2016]; People vGordon, 119 AD3d at 1286), we are satisfied that defendant's convictions are supported bythe weight of the evidence (see People vPham, 118 AD3d 1159, 1160 [2014], lv denied 24 NY3d 1087 [2014]; People v Audi, 88 AD3d 1070,1072-1073 [2011], lv denied 18 NY3d 856 [2011]; People v Jordan, 77 AD3d 406, 407 [2010], lv denied 15NY3d 953 [2010]).
Finally, we are unpersuaded that defendant's sentence is harsh and excessive. Given hisextensive criminal record, his repeated willingness to violate a court order and his refusal toshow remorse or accept responsibility for his actions, we find no abuse of discretion orextraordinary circumstances warranting a modification of the sentence in the interest of justice(see People v Hill, 148 AD3d1469, 1471 [2017], lv denied 29 NY3d 1080 [2017]; People v Lawing, 110 AD3d 1354,1355 [2013], lv denied 22 NY3d 1200 [2014]; People v White, 23 AD3d 764, 765 [2005]). Nor is there anyevidence in the record to support defendant's claim that the sentence was imposed as a penalty forexercising his constitutional right to a jury trial (see People v Watson, 150 AD3d 1384, 1387 [2017], lvdenied 29 NY3d 1135 [2017]; People v Williams, 138 AD3d 1233, 1238 [2016], lv denied28 NY3d 939 [2016]; People vScaringe, 137 AD3d 1409, 1419 [2016], lv denied 28 NY3d 936 [2016]).
Garry, Rose, Aarons and Rumsey, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:Notably, defendant did not assertthe affirmative defense of a mental disease or defect at trial (see People v McLean, 128 AD3d 1106, 1110 [2015], lvdenied 25 NY3d 1204 [2015]; People v Foster, 52 AD3d 957, 959 n [2008], lv denied 11NY3d 788 [2008]).