| People v Lapham |
| 2019 NY Slip Op 03848 [172 AD3d 1634] |
| May 16, 2019 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Christopher Lapham, Appellant. |
Sandra M. Colatosti, Albany, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Jeffrey C. Kehm of counsel), forrespondent.
Egan Jr., J. Appeal from a judgment of the Supreme Court (Lawliss, J.), rendered February14, 2017 in Clinton County, upon a verdict convicting defendant of the crimes of criminalcontempt in the second degree (18 counts) and aggravated family offense (18 counts).
Defendant, having been previously convicted of criminal contempt in the first degree, wassentenced on May 7, 2012 to five years of probation, and an order of protection was issued infavor of the mother of his child (hereinafter the victim), with a scheduled expiration date of May7, 2017.[FN*] In March2016, the victim filed a complaint with the Plattsburgh Police Department alleging, as relevanthere, that defendant had sent her numerous unwanted text messages over the course of 18separate days between September 2015 and February 2016 in violation of the order of protection.Defendant was thereafter arrested and charged by indictment with criminal contempt in thesecond degree (18 counts) and aggravated family offense (18 counts). Following a jury trial,defendant was convicted as charged and thereafter sentenced, as a second felony offender, toconcurrent and consecutive terms, resulting in a maximum prison term of 6 to 12 years.Defendant appeals.
Defendant initially contends that the indictment was jurisdictionally defective because itfailed to allege a material element of the crime of aggravated family offense, namely, thatdefendant and the victim were members of the same family or household. We disagree. Anindictment is jurisdictionally defective where it fails to notify the defendant of the crime chargedby alleging "facts supporting every element of the offense charged and the defendant'scommission thereof with sufficient precision to clearly apprise the defendant of the conductwhich is the subject of the accusation" (People v Morris, 61 NY2d 290, 293 [1984][internal quotation marks, ellipses and citation omitted]; see People v D'Angelo, 98NY2d 733, 735 [2002]; People vDubois, 150 AD3d 1562, 1564 [2017]). An indictment charging a person with anaggravated family offense must provide allegations of fact demonstrating that defendant hascommitted a statutorily enumerated "specified offense" pursuant to Penal Law§ 240.75 (2) and, within the preceding five years, has also been convicted of at leastone other specified offense (see Penal Law § 240.75 [1]). To that end, anindictment charging an aggravated family offense must be accompanied by a special information(see CPL 200.63 [1]), alleging that the defendant was previously convicted of a specifiedoffense as defined in Penal Law § 240.75 (2) and "that at the time of the previousoffense the defendant and the person against whom the offense was committed were members ofthe same family or household as defined in [CPL 530.11]" (CPL 200.63 [1]; see PenalLaw § 240.75).
For each of the 18 counts of aggravated family offense, the indictment indicates the specifiedoffense that defendant is alleged to have committed (i.e., criminal contempt in the seconddegree), and that it is based upon defendant's alleged violation of an order of protection issued onMay 7, 2012. In conjunction with the indictment, the People also filed a special informationalleging that defendant was previously convicted of criminal contempt in the first degree(see Penal Law § 215.51 [b] [iv])—a qualifying specified offense(see Penal Law § 240.75 [2])—within the preceding five years and, atthe time of said conviction, the alleged victim and defendant were members of the samehousehold. Although the special information did not specifically indicate the charges in theindictment to which it pertained, all 18 counts of aggravated family offense charged in theindictment relate to separate and distinct violations of the same May 2012 order of protectionissued in favor of the victim. Although the better practice would have been for the specialinformation to indicate each of the specific counts to which it related, we find that, as filed, thespecial information was sufficient to provide defendant with notice of the charges against him soas to allow him to prepare an adequate defense (cf. People v Feliciano, 150 AD3d 579, 579 [2017], lvdenied 29 NY3d 1126 [2017]). Accordingly, we find that the indictment, as accompanied bythe requisite special information, was not jurisdictionally defective (see id. at 579; People v Parrilla, 145 AD3d 629,629-630 [2016], lv denied 29 NY3d 951 [2017]).
Defendant next contends that the jury's verdict was not supported by legally sufficientevidence and was against the weight evidence as the People failed to prove his intent to violatethe subject order of protection because there was insufficient proof at trial establishing that hewas provided actual knowledge of the order of protection and its contents. "When considering achallenge to the legal sufficiency of the evidence, we view the evidence in the light mostfavorable to the People and will not disturb the verdict if the evidence demonstrates a valid lineof reasoning and permissible inferences that could lead a rational person to the conclusionreached by the jury" (People vBrown, 61 AD3d 1007, 1009 [2009] [internal quotation marks and citations omitted]; see People v Crippen, 156 AD3d946, 950 [2017]). In order to find defendant guilty of criminal contempt in the seconddegree, the People were required to prove that he intentionally disobeyed or resisted the lawfulprocess or a mandate of a court other than one involving or growing out of a labor dispute(see Penal Law § 215.50 [3]). In order to find defendant guilty of anaggravated family offense, the People were required to prove, as relevant here, that he committedthe specified offense of criminal contempt in the second degree (see Penal Law§ 240.75 [1], [2]).
The evidence presented at trial established that, after dating for approximately four years andhaving a child together, defendant and the victim's relationship ended in 2010 as the result of "alot of domestic violence" and, based thereon, an order of protection was issued in favor of thevictim. Defendant was subsequently convicted of criminal contempt in the first degree as a resultof violating this order of protection and, at his May 7, 2012 sentencing, Supreme Court issued anew order of protection. Although defendant did not sign this order of protection, the transcriptof this sentencing—which was received in evidence—establishes that defendantwas present in court and advised as to the issuance of the order and its relevant contents.Moreover, a lieutenant with the Clinton County Sheriff's Department testified that, four dayslater, he personally served defendant with a copy of this order. Recorded telephone calls betweendefendant and his mother while he was incarcerated confirmed defendant's knowledge of thesubject order, and the victim unequivocally testified that the text messages she received duringthe relevant time period all came from defendant. Accordingly, we find that there was legallysufficient evidence presented at trial from which a rational juror could conclude that defendantwas aware of the May 2012 order of protection and intended to violate it. Turning to the weightof the evidence, although a different verdict would not have been unreasonable, viewing theevidence in a neutral light and according due deference to the jury's factual assessments andcredibility determinations, we are satisfied that the verdict was supported by the weight of theevidence (see People v Myers, 160AD3d 1029, 1030-1031 [2018]; People v Richardson, 155 AD3d 1099, 1103 [2017]).
Lastly, we reject defendant's contention that the sentence imposed was harsh and excessive.Given defendant's criminal history—which includes a prior felony conviction for criminalcontempt in the first degree and two convictions for criminal contempt in the second degree allinvolving the same victim—lack of remorse and continued blaming of the victim, he hasdemonstrated a consistent inability to abide by court orders and refrain from contact with thevictim. Accordingly, we find no abuse of discretion or extraordinary circumstances warranting amodification of his sentence in the interest of justice (see People v Crippen, 156 AD3d at953; People v Lawing, 110 AD3d1354, 1356 [2013], lv denied 22 NY3d 1200 [2014]; People v White, 23 AD3d 764,765 [2005]).
Garry, P.J., Lynch, Clark and Aarons, JJ., concur. Ordered that the judgment is affirmed.
Footnote *:This Court previously affirmed ajudgment revoking defendant's probation and sentencing him to 1 to 3 years in prison forwillfully violating both the order of protection and the terms and conditions of his probation (People v Lapham, 117 AD3d 1341[2014], lv denied 23 NY3d 1064 [2014]).