| People v Jasiewicz |
| 2018 NY Slip Op 04782 [162 AD3d 1398] |
| June 28, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Patrick P. Jasiewicz, Appellant. |
Lisa A. Burgess, Indian Lake, for appellant, and appellant pro se.
Andrew J. Wylie, District Attorney, Plattsburgh (Timothy G. Blatchley of counsel), forrespondent.
Lynch, J. Appeals (1) from a judgment of the County Court of Clinton County (McGill, J.),rendered February 10, 2015, upon a verdict convicting defendant of the crimes of criminalcontempt in the first degree, burglary in the second degree, resisting arrest and obstructinggovernmental administration in the second degree, and (2) from a judgment of said court,rendered February 10, 2015, which resentenced defendant.
On January 24, 2014, in violation of an order of protection, defendant entered an enclosedporch at the victim's residence and allegedly kicked and pounded on her door and yelled at her tolet him inside. The police were dispatched due to the victim's 911 call, and, upon arrival, astruggle between them and defendant ensued. The police made several attempts to subduedefendant using a taser and eventually placed defendant under arrest. Defendant was indictedand, following a jury trial, convicted of criminal contempt in the first degree, burglary in thesecond degree, resisting arrest and obstructing governmental administration in the second degree.County Court thereafter sentenced defendant to an aggregate prison term of 15 years followed byfive years of postrelease supervision. Defendant was later resentenced due to an error in thesentence imposed for his criminal contempt conviction, but the aggregate sentence andpostrelease supervision time remained the same. Defendant now appeals from the judgment ofconviction and the resentence.
Initially, defendant appears to make several pro se contentions challenging the verdict asagainst the weight of the evidence. In determining whether defendant's convictions were againstthe weight of the evidence, we first must determine whether a different result would have beenunreasonable; if not, we then "weigh conflicting testimony, review[ing] any rational inferencesthat may be drawn from the evidence and evaluate the strength of such conclusions. Based on theweight of the credible evidence, the [C]ourt then decides whether the jury was justified in findingthe defendant guilty beyond a reasonable doubt" (People v Danielson, 9 NY3d 342, 348 [2007]). As relevant here, aperson is guilty of criminal contempt in the first degree when, "in violation of a duly served orderof protection, . . . he or she . . . by physical menace, intentionallyplaces or attempts to place a person for whose protection such order was issued in reasonablefear of death, imminent serious physical injury or physical injury" (Penal Law§ 215.51 [b] [vi]). "A person is guilty of burglary in the second degree when he [orshe] knowingly enters or remains unlawfully in a [dwelling] with intent to commit a crimetherein" (Penal Law § 140.25 [2]). As for the crime of resisting arrest, the Peoplemust prove that the defendant "intentionally prevent[ed] or attempt[ed] to prevent a police officer. . . from effecting an authorized arrest of himself [or herself]" (Penal Law§ 205.30). Additionally, a person is guilty of obstructing governmentaladministration in the second degree when he or she "intentionally obstructs, impairs or pervertsthe administration of law or other governmental function or prevents or attempts to prevent apublic servant from performing an official function, by means of intimidation, physical force orinterference, or by means of any independently unlawful act" (Penal Law§ 195.05).
Here, the victim testified that she had been romantically involved with defendant and that, inNovember 2013, defendant arrived at her residence and "call[ed] [her] names," "banged on [her]door" and said, "I will kill you." The victim then called 911 and eventually obtained an order ofprotection against defendant. Several months later, on the day in question, the victim heard"banging and crashing" coming from her enclosed porch. Fearing that defendant was going to killher, she called 911. A police officer testified that, when he arrived at the scene, defendant was"punching, kicking and flailing" on the door to the victim's residence, yelling, "let me in the[expletive] house." The police officer noted that defendant's knuckles were "split open" and thathis hands were "covered in blood." When the officer attempted to arrest defendant, defendantphysically attacked him and knocked him to the ground. Another police officer testified that hepulled defendant off of the other officer, while defendant "continu[ed] to resist arrest by throwingfists and kicking." A third officer testified that even after one of the other officers deployed histaser, he deployed two cartridges of his own taser on defendant, which failed to fully subdue him.He testified that only after he touched the taser to the small of defendant's back were the officersable to place defendant in handcuffs.
Defendant acknowledged that he knew that there was an order of protection requiring him tostay away and refrain from contacting the victim. Defendant, however, denied ever threatening tokill the victim and indicated that, on the day in question, he had been drinking alcohol when hedecided that he wanted to see the victim and tell her that he loved her. Defendant testified that hefell a few times on the way to the victim's residence, that he knocked—notpounded—on the victim's door three or four times and that, when the victim opened thedoor, she closed it before he could say anything. Defendant explained that he left the enclosedporch on his own accord and that, as he exited the porch, an officer told him to stop resisting,shot him with a taser and "charged [at him]." Defendant denied ever punching or attempting topunch any of the officers or otherwise resisting arrest.
Defendant concedes that he violated the underlying order of protection by being present atthe victim's residence on the day in question, but contends that he did not have the requisiteintent, as he did not threaten the victim and went there "to declare [his] love for her." Intent maybe inferred from defendant's conduct and the surrounding circumstances (see People vBracey, 41 NY2d 296, 301 [1977]; People v Richardson, 155 AD3d 1099, 1102-1103 [2017]), and, inlight of the victim's testimony, which the jury was entitled to credit, we find that the jury's verdictconvicting defendant of the crime of criminal contempt in the first degree was not contrary to theweight of the evidence (see People vCrippen, 156 AD3d 946, 950-952 [2017]; People v Richardson, 155 AD3d at1101-1103; People v Dixon, 118AD3d 1188, 1188-1189 [2014]). We further find that the verdict as to the remaining chargesis in accord with the weight of the evidence.[FN*]
Defendant next contends that County Court's jury instruction as to the elements of the crimeof burglary in the second degree was improper because, despite the People limiting their theoryof the "intent to commit a crime therein" element to the crime of menacing, it failed to instructthe jury as to those elements. Initially, contrary to the People's contention, defendant's argumentneed not be preserved for our review because he "has a fundamental and nonwaivable right to betried only on the crimes charged" (People v Sanford, 148 AD3d 1580, 1582 [2017] [internal quotationmarks and citation omitted], lv denied 29 NY3d 1133 [2017]). We are, however,unpersuaded by defendant's contention. To secure a burglary conviction, the People need notestablish what the underlying crime was or that it had been committed unless they "expresslylimited their theory of the 'intent to commit a crime therein' element to a particular crime" (People v Lewis, 5 NY3d 546, 552n 7 [2005]; see People v Bess, 107 AD2d 844, 846 [1985]). While the People suggestedin their opening and closing statements that defendant intended to intimidate the victim when hearrived at her residence, that did not constitute a limitation on the theory of the prosecution (see People v Hughes, 154 AD3d468, 469 [2017], lv denied 30 NY3d 1106 [2018]; People v Bess, 107 AD2dat 846). We therefore find that County Court's burglary jury instruction was proper.
The record indicates that following summations, but before the jury began its deliberations,defendant made a timely request for the submission of the lesser included offense of criminaltrespass in the second degree (seePeople v Ryan, 55 AD3d 960, 964 [2008]). In our view, however, there is no reasonableview of the evidence that defendant did not, at least, intend to violate the order of protection,which prohibited communication with the victim (see People v Cajigas, 19 NY3d 697, 701-702 [2012]; People v Womack, 143 AD3d1171, 1172 [2016], lv denied 28 NY3d 1151 [2017]). As such, defendant was notentitled to the submission of the lesser included offense (see People v Green, 141 AD3d 1036, 1042 [2016], lvdenied 28 NY3d 1072 [2016]). Nor do we find reason to disturb the sentences imposed dueto defendant's extensive criminal history, which includes several felonies, the fact that heengaged in a course of conduct that resulted in the emotional terrorization of the victim, hisfailure to accept responsibility for the crimes and the lack of any extraordinary circumstanceswarranting modification of the sentence (see People v Cajigas, 19 NY3d at 702; People v Malloy, 152 AD3d 968,971 [2017], lv denied 30 NY3d 981 [2017]; People v Griffin, 122 AD3d 1068, 1071 [2014], lv denied25 NY3d 1164 [2015]).
We have examined the remaining arguments raised in defendant's pro se supplemental briefand find them to be lacking in merit.
Garry, P.J., Clark, Aarons and Rumsey, JJ., concur. Ordered that the judgments areaffirmed.
Footnote *:To the extent that defendantchallenges his burglary in the second degree conviction by arguing that the enclosed porch inquestion does not constitute a dwelling, it is without merit, as we have held that an enclosedporch constitutes a dwelling for purposes of residential burglary (see People v Prince, 51 AD3d1052, 1054 [2008], lv denied 10 NY3d 938 [2008]; People v Rivera, 301AD2d 787, 788 [2003], lv denied 99 NY2d 631 [2003]).