| People v VanDeWalle |
| 2007 NY Slip Op 10210 [46 AD3d 1351] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DanielVanDeWalle, Jr., Appellant. |
—[*1] R. Michael Tantillo, District Attorney, Canandaigua (Brian D. Dennis of counsel), forrespondent.
Appeal from a judgment of the Ontario County Court (Craig J. Doran, J.), renderedSeptember 13, 2005. The judgment convicted defendant, upon a jury verdict, of burglary in thesecond degree, criminal trespass in the second degree (15 counts), criminal contempt in thesecond degree (two counts), criminal contempt in the first degree, and aggravated harassment inthe second degree (three counts).
It is hereby ordered that the judgment so appealed from be and the same hereby isunanimously modified on the law by reducing the conviction of burglary in the second degree(Penal Law § 140.25 [2]) to criminal trespass in the second degree (§ 140.15) andreducing the conviction of criminal contempt in the first degree (§ 215.51 [b] [iv]) tocriminal contempt in the second degree (§ 215.50 [3]) and vacating the sentences imposedon counts 16 and 20 of the indictment and as modified the judgment is affirmed, and the matter isremitted to Ontario County Court for sentencing on criminal trespass in the second degree andcriminal contempt in the second degree.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of onecount each of burglary in the second degree (Penal Law § 140.25 [2]) and criminalcontempt in the first degree (§ 215.51 [b] [iv]), two counts of criminal contempt in thesecond degree (§ 215.50 [3]), three counts of aggravated harassment in the second degree(§ 240.30 [1] [b]), and 15 counts of criminal trespass in the second degree (§140.15), arising from defendant's repeated violations of orders of protection requiring defendantto stay away from his girlfriend and her home, to avoid any contact or communication with her,and to refrain from any offensive conduct with respect to her.
We agree with defendant that the evidence with respect to the burglary conviction is legallyinsufficient to establish that, upon his entry into the trailer, he intended to commit a crime in thetrailer beyond the crime of criminal contempt, based on his violation of the order of protection,i.e., his unlawful proximity, contact, or communication with the girlfriend, that had made theentry into the trailer unlawful in the first instance (cf. People v Lewis, 5 NY3d 546, 551-553 [2005]; People vPolanco, 279 AD2d 307 [2001], lv denied 96 NY2d 833 [2001]; People vFolsom, 252 AD2d 834 [1998], lv denied 92 NY2d 981 [1998]; People vClemins, 158 AD2d 854, 855 [1990], lv denied 76 NY2d 732 [1990]; seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). Indeed, we conclude that there canbe [*2]no conviction of burglary in this case unless it can bereasonably inferred that defendant, at the time of the unlawful entry, intended to engage inoffensive conduct against his girlfriend, the occupant of the trailer, in violation of the order ofprotection. We further conclude that the "intent to commit a crime therein" element of burglarycannot be satisfied by intended conduct that would be innocuous if the order of protection did notprohibit it, and that such insufficient intended conduct would include the defendant's mere"contact" or "communication" with—or proximity to—the occupant of the buildingnamed in the order of protection. Unlike the situation in Lewis, the evidence in this casedoes not permit the inference that, at the time of his entry, defendant intended to harass, menace,intimidate, threaten or interfere with his girlfriend. Rather, the evidence established only that heintended to embrace his girlfriend, profess his love for her, and essentially say goodbye to herand that his girlfriend did not find his actions unwelcome since she hugged defendant, kissed himand told him goodbye. Although defendant seeks reversal of the conviction of burglary in thesecond degree, we conclude that the conviction must be reduced to criminal trespass in thesecond degree under Penal Law § 140.15 (see generally CPL 470.15 [2] [a]). Wetherefore modify the judgment accordingly, and we remit the matter to County Court forsentencing on criminal trespass in the second degree.
We further agree with defendant with respect to the conviction of criminal contempt in thefirst degree that the evidence is legally insufficient to establish that he intended by his voicemails to harass, annoy, threaten, or alarm his girlfriend and that he lacked any purpose oflegitimate communication (see Penal Law § 215.51 [b] [iv]; see also People v Summons, 12 Misc3d 131[A], 2006 NY Slip Op 51078[U] [2006]; People v Webers, 9 Misc 3d 135[A],2005 NY Slip Op 51673[U] [2005]; cf.People v Roman, 13 AD3d 1115, 1116 [2004], lv denied 4 NY3d 802 [2005];People v Little, 14 Misc 3d 70,72 [2006], lv denied 8 NY3d 924 [2007], cert denied — US —, 128S Ct 200 [2007]; see generally Bleakley, 69 NY2d at 495). The only inference to bedrawn from the evidence is that defendant left the voice mails with the intent to continue orfurther the couple's relationship, and no inference may be drawn that he intended to harass,annoy, threaten, or alarm his girlfriend. Thus, we conclude that the conviction of criminalcontempt in the first degree must be reduced to criminal contempt in the second degree underPenal Law § 215.50 (3) (see generally CPL 470.15 [2] [a]; People v Demisse, 24 AD3d 118[2005], lv denied 6 NY3d 833 [2006]; People v Dewall, 15 AD3d 498, 501 [2005], lv denied 5NY3d 787 [2005]). We therefore further modify the judgment accordingly, and we further remitthe matter to County Court for sentencing on criminal contempt in the second degree.
We have considered defendant's remaining contentions and conclude that they are withoutmerit. Finally, we note that the certificate of conviction incorrectly reflects that defendant wasconvicted of three counts of aggravated harassment in the second degree under Penal Law§ 240.30 (1) (a), and it must therefore be amended to reflect that he was convicted underPenal Law § 240.30 (1) (b) (seePeople v Saxton, 32 AD3d 1286 [2006]). Present—Hurlbutt, J.P., Gorski,Martoche, Lunn and Peradotto, JJ.