| People v Brown |
| 2009 NY Slip Op 02485 [61 AD3d 1007] |
| April 2, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Gregory V.Brown, Appellant. |
—[*1] Richard J. McNally Jr., District Attorney, Troy (Kelly L. Egan of counsel), forrespondent.
Kavanagh, J. Appeal from a judgment of the County Court of Rensselaer County (Nichols,J.), rendered February 21, 2008, upon a verdict convicting defendant of the crimes of stalking inthe second degree, criminal contempt in the first degree and aggravated harassment in the seconddegree (two counts).
In August 2002, defendant was convicted after trial of numerous crimes, including stalkingin the second degree, in connection with allegations that he had engaged in a repeated course ofconduct that placed the victim in fear for her physical safety. He was later sentenced toconcurrent prison terms totaling 2 to 4 years and an order of protection was issued directing thathe have no direct or indirect contact with the victim for a period of seven years.[FN*]Five years later, after he had been released from prison, defendant ascertained the location of thevictim's residence and used a nearby pay phone to place a telephone call to the unlistedtelephone number at that residence. When the victim's husband answered, defendant identifiedhimself as a former classmate of the victim named "Thomas" and asked to speak to her. Uponhearing the victim tell [*2]her husband that she did not knowsomeone by that name, defendant immediately hung up the phone and left the area. Using callerID, the victim's husband was able to locate the pay phone from which the call had been made andfound that it was monitored by a surveillance camera. The police were contacted and, uponviewing the tape from the camera, determined that defendant had made the telephone call. Hewas subsequently arrested and, while in custody, admitted placing the call to the victim'sresidence.
An indictment was subsequently filed charging defendant with the crimes of stalking in thesecond degree, criminal contempt in the first degree and two counts of aggravated harassment inthe second degree. Following a jury trial, defendant was convicted as charged and sentenced toprison terms of 2 to 4 years on the stalking and contempt convictions, and one year for eachaggravated harassment conviction, all of which were ordered to run concurrently. Defendant nowappeals.
Defendant initially contends that the convictions for stalking and aggravated harassmentwere not supported by legally sufficient evidence. We disagree. "When considering a challengeto the legal sufficiency of the evidence, we view the evidence in the light most favorable to thePeople and will not disturb the verdict if the evidence demonstrates a valid line of reasoning andpermissible inferences that could lead a rational person to the conclusion reached by the jury"(People v Maricevic, 52 AD3d1043, 1044 [2008], lv denied 11 NY3d 790 [2008] [citations omitted]; seePeople v Thompson, 72 NY2d 410, 413 [1988]; People v Bleakley, 69 NY2d 490,495 [1987]; People v Hall, 57AD3d 1222, 1225 [2008]; People vMcCowan, 45 AD3d 888, 889 [2007], lv denied 9 NY3d 1007 [2007]).Obviously, the evidence submitted in support of each charge must be viewed in the context ofthe prior relationship that existed between defendant and the victim and the fact that, at the timehe made the telephone call, defendant had been convicted of a serious crime as a result of hisongoing obsession with the victim. Here, given this history, defendant had to have known thatany attempt on his part to contact the victim would have no legitimate purpose and, at the veryminimum, would serve to harass and annoy her. This conclusion is reinforced by how defendantidentified himself at the outset of the call, as well as the manner in which he abruptly ended theconversation and left the scene before ever talking to the victim. Moreover, there can be nodoubt that once the victim realized that it was defendant who placed the call, even absent someexpress threat directed at her, she had legitimate and well-founded fears for her physical safety.As such, the convictions for stalking and aggravated harassment were supported by legallysufficient evidence and do not, contrary to defendant's claim, impact any constitutional right thathe might otherwise have had under the First Amendment (see generally People v Shack,86 NY2d 529, 535 [1995]; People vBrown, 13 AD3d 667, 668 [2004], lv denied 4 NY3d 742 [2004]).
We do not, however, arrive at the same conclusion as to the legal sufficiency of the evidencesubmitted in support of defendant's conviction for criminal contempt in the first degree. Toobtain a conviction for this crime, the People were required to present evidence that defendant,when he made this telephone call, did so with the intent to place the victim "in reasonable fear ofphysical injury, serious physical injury or death" (Penal Law § 215.51 [b] [ii], [iii]). Here,while there is no doubt that defendant telephoned the victim's residence, there was nothing inwhat he said or did when making that telephone call that carried with it an actual or impliedthreat that he would physically harm her. While defendant should have known that the victim didnot want to have any contact with him and that the call could well be upsetting to her, it does notnecessarily follow that defendant, when he made the call, intended to place the victim inreasonable fear for her physical safety. Without such evidence, the evidence is legally [*3]insufficient and his conviction for criminal contempt in the firstdegree cannot stand (see People vVanDeWalle, 46 AD3d 1351, 1353 [2007], lv denied 10 NY3d 845 [2008]; People v Demisse, 24 AD3d 118,119 [2005], lv denied 6 NY3d 833 [2006]). We are, however, empowered with theauthority to reduce the conviction to criminal contempt in the second degree (see CPL470.15 [2] [a]), as the evidence is legally sufficient to show that, despite having knowledge ofthe order of protection, he engaged in an intentional disobedience to that lawful mandate(see Penal Law § 215.50).
We also find that County Court committed reversible error when it refused defendant'srequest that the jury be instructed that to convict him of the crime of stalking in the seconddegree, it must be proven beyond a reasonable doubt that defendant, within five years, had beenpreviously convicted of stalking in the second degree involving the same victim (seePenal Law § 120.55 [2]). Clearly, "all the elements of an indicted crime which are notconceded by defendant or defendant's counsel must be charged" (People v Flynn, 79NY2d 879, 881 [1992]). Here, even though the proof submitted by the People undoubtedlyestablished the existence of this prior conviction, defendant had the right to refuse to stipulate toit and, therefore, it was an element of the crime that the jury had to be satisfied was provenbeyond a reasonable doubt for there to be a valid conviction. County Court's ruling that theexistence of the prior conviction was "not an element for [the jury] to determine" and the court'srefusal to submit it to the jury as part of its deliberations constituted reversible error and requiresthat a new trial be conducted on this charge (see People v Haddock, 48 AD3d 969, 971 [2008]; People v Cotterell, 7 AD3d 807,808 [2004]).
Even if we were to conclude that defendant's remaining contentions had merit, they wouldnot constitute reversible error (seePeople v Daniels, 36 AD3d 502, 503 [2007], lv denied 9 NY3d 842 [2007]).
Cardona, P.J., Rose, Kane and Stein, JJ., concur. Ordered that the judgment is modified, onthe law, by reversing defendant's conviction of stalking in the second degree under count one ofthe indictment and by reducing defendant's conviction of criminal contempt in the first degreeunder count two of the indictment to criminal contempt in the second degree; vacate thesentences imposed on said convictions and matter remitted to the County Court of RensselaerCounty for a new trial on count one and resentencing on count two; and, as so modified,affirmed.
Footnote *: The judgment of conviction forthose prior charges was affirmed (People v Brown, 13 AD3d 667 [2004], lv denied 4 NY3d742 [2004]).