| People v Clark |
| 2009 NY Slip Op 06197 [65 AD3d 755] |
| August 13, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v William J.Clark, Jr., Appellant. |
—[*1] James A. Murphy III, District Attorney, Ballston Spa (Nicholas E. Tishler of counsel), forrespondent.
Mercure, J. Appeal from a judgment of the County Court of Saratoga County (Scarano, J.),rendered March 27, 2008, upon a verdict convicting defendant of the crimes of criminalcontempt in the first degree (six counts), stalking in the second degree and criminal contempt inthe second degree (six counts).
In October 2006, defendant was convicted of numerous crimes, including stalking in thethird degree, arising out of his harassment of the victim, his former girlfriend (People v Clark, 52 AD3d 860[2008], lv denied 11 NY3d 831 [2008]). Thereafter, County Court issued an order ofprotection directing defendant to stay away from her home and place of employment, and refrainfrom all contact with her. The present case involves defendant's almost immediate disregard ofthat order and his ongoing campaign of harassment and intimidation of the victim.
According to the victim, on December 8, 2006, defendant—acting in violation of theorder of protection—placed a letter on her car windshield while she was at work andtelephoned her six times, with one conversation ensuing. On December 11, 2006, defendantreached the victim twice by telephone, during which time he related details of the victim's recentactivities and demanded intimate information about her relationship with another man. The firsttelephone call ended when the victim hung up and, during the second call, defendant warned thevictim not [*2]to hang up on him again. Nevertheless, the victimadvised defendant in no uncertain terms that she wanted to be left alone and that he was violatingthe order of protection, and she promptly reported the contact to law enforcement officials.
Defendant next accosted the victim at a gas station four days later, on December 15, 2006.The victim agreed to speak to him in order to tell him face-to-face that she wanted to be leftalone. As the victim sat in her locked car with her window cracked open, defendant indicatedagain that he was aware of the details of her recent activities, as well as the activities of herfamily, revealing that he had improperly obtained private and confidential information about herfather's finances.[FN1]The victim reported the incident to law enforcement officials on the following business day.
On December 26, 2006, defendant made two more telephone calls to the victim, who againtold him that he was violating the order of protection and that she wanted to be left alone. Moredisturbingly, when the victim arrived at work that same night, defendant ran up to her car andbegan screaming and pounding on the driver's side window, demanding to know how she could"do this to" him. It was dark outside at the time, and defendant was wearing dark clothes and adark hat. The victim called 911 on her cell phone and frantically shouted to a coworker for help,and defendant fled before police arrived.
A few days after that encounter, the victim entered a locked house into which she wasplanning to move and discovered various items allegedly left by defendant for her in the kitchen.Among other things, defendant had allegedly left a gift card purchased in the store where thevictim worked—the same store at which he had pounded on her car window on December26, 2006, as she arrived for work. Subsequently, a number of documents were discovered indefendant's residence that belonged to the victim or her family, and were obtained either frominside the victim's home and workplace or from the garbage outside of those locations.Defendant also had a list of the names, addresses and telephone numbers of the victim and herfamily members, as well as photographs of the victim in which her head had been cut out.
Defendant was thereafter charged in an indictment with numerous counts relating to theabove incidents. Following a jury trial, during which defendant represented himself, he wasconvicted of six counts of criminal contempt in the first degree, one count of stalking in thesecond degree and six counts of criminal contempt in the second degree. Defendant wassentenced as a second felony offender to an aggregate prison term of 8 to 16 years. He appeals,and we now affirm.
Initially, we reject defendant's argument that the proof presented at trial was legallyinsufficient to support his convictions of criminal contempt in the first degree.[FN2]In reviewing [*3]whether a jury verdict is supported by sufficientevidence, we "must determine whether there is any valid line of reasoning and permissibleinferences which could lead a rational person to the conclusion reached by the jury on the basisof the evidence at trial" (People v Bleakley, 69 NY2d 490, 495 [1987]; see People v Brown, 61 AD3d1007, 1009 [2009]). Four of the six counts arose out of the individual telephoneconversations of December 8, December 11 (the two calls on that date constituting separatecounts) and December 26, 2006. On those charges, the People were required to demonstrate thatdefendant "intentionally place[d] or attempt[ed] to place [the victim] in reasonable fear ofphysical injury, serious physical injury or death" through the calls (Penal Law § 215.51 [b][iii]). Thus, although the victim testified that she found the telephone calls threatening anddisturbing, the People were required to demonstrate that her fear was "objectively reasonable"through, for example, evidence that defendant's course of conduct carried "an express or impliedthreat of violence" (People vDemisse, 24 AD3d 118, 119 [2005], lv denied 6 NY3d 833 [2006]).
In that regard, while defendant did not expressly threaten the victim in any of the telephonecalls, the inherent menace in the calls becomes apparent when viewed in the broader context ofthe proof in this case. A review of the record reveals that, among other things, defendantengaged in threatening actions toward the victim during the period when the telephone calls weremade, most notably when he ran up to her car at night and proceeded to scream and pound on thewindow. Furthermore, he revealed to the victim, through his repeated detailed descriptions of herrecent activities, that he was following and surveilling her. Notably, the jury was made awarethat defendant's earlier interactions with the victim led to his conviction on charges of criminalcontempt in the second degree, attempted criminal contempt in the second degree and stalking inthe third degree. In addition, there was evidence that defendant routinely disregarded previoustemporary orders of protection in favor of the victim and that a separate order of protectionprevented him from having contact with the victim's father, with whom the victim lived and whohad been threatened by defendant.
Given these facts, the jury could rationally conclude that the victim's fear of injury or deathwas objectively reasonable (see e.g.People v McCowan, 45 AD3d 888, 889-890 [2007], lv denied 9 NY3d 1007[2007]; Matter of Ivan F., 233 AD2d 210, 210-211 [1996]; People v Henderson, 12 Misc 3d60, 61 [App Term 2006], lv denied 7 NY3d 902 [2006]). In particular, the jury couldreasonably infer, based upon this evidence when viewed in conjunction with defendant'spossession of personal information about the victim and headless photographs of her, thatdefendant intended to, and did, produce a reasonable fear in the victim regarding her physicalsafety (see People v Malave, 60AD3d 410, 410-411 [2009], lv denied 12 NY3d 855 [2009]; cf. People vBrown, 61 AD3d at 1009-1010). That evidence is also legally sufficient to support theconvictions upon the remaining two counts of first degree criminal contempt, which allege thatdefendant repeatedly followed the victim or otherwise engaged in a course of conduct with theintent of causing her to have a reasonable fear of injury or death (see Penal Law §215.51 [b] [ii]), and that he repeatedly telephoned her with the sole intention of harassing orthreatening her (see Penal Law § 215.51 [b] [iv]). Nor are we persuaded, afterreviewing the evidence in a neutral light and deferring to the jury's determinations of credibility,that the verdict was against the weight of the evidence (see People v McCowan, 45AD3d at 889-890). The jury properly credited the victim's testimony, notwithstandingdefendant's prolonged efforts to call her version [*4]of eventsinto question.[FN3]
Defendant next argues that he was deprived of a fair trial by the prosecutor's summationcomments that he disliked "individuals who attempt to testify without taking that witness stand"and that, if an individual was "not willing to take that witness stand and be cross-examined, thenthey shouldn't be testifying." Contrary to defendant's assertion, those comments did not call thejury's attention to defendant's failure to testify; rather, the comments refer to defendant's conductin making numerous improper factual assertions while questioning witnesses-despite beingrepeatedly instructed not to do so-and his subsequent attempts to cite his own assertions asevidence in his summation. Under these circumstances, the comments could not "naturally andreasonably be interpreted by the jury as adverse comment on defendant's failure to take thestand" (People v Burke, 72 NY2d 833, 836 [1988]; see People v Reyes, 239AD2d 306 [1997], lv denied 90 NY2d 909 [1997]).
Finally, there is no merit to defendant's contention that his sentence was harsh and excessive,particularly in light of his extensive and violent criminal history, disturbing attern of conducttowards the victim and wholesale disregard for orders of protection.
Cardona, P.J., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed.
Footnote 1: We note that the victim's fathertestified that defendant had obtained this information from his payroll stub, which was mostlikely taken from the inside of his home.
Footnote 2: Defendant suggests that hisother convictions are similarly deficient, but he makes no arguments regarding the remainingcharges and, in any event, we perceive no merit in such claims.
Footnote 3: Defendant, who representedhimself as noted above, engaged in a repetitive and harassing cross-examination of the victimwhich took the better part of four days to complete. The cross-examination was so punishing thatone juror had to be excused after she found it too "hard to take."