| People v Nuffer |
| 2010 NY Slip Op 01068 [70 AD3d 1299] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Royal D.Nuffer, Appellant. |
—[*1] Leanne K. Moser, District Attorney, Lowville (John A. Cirando of counsel), forrespondent.
Appeal from a judgment of the Lewis County Court (Charles C. Merrell, J.), rendered March13, 2009. The judgment convicted defendant, upon a jury verdict, of criminal contempt in thesecond degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict ofcriminal contempt in the second degree (Penal Law § 215.50 [3]) arising from hisviolation of an order of protection issued by Family Court following defendant's divorce fromthe victim. We note at the outset that defendant's trial order of dismissal did not raise the groundsnow advanced on appeal, and defendant thus failed to preserve for our review his contention thatthe conviction is not supported by legally sufficient evidence (see People v Gray, 86NY2d 10, 19 [1995]). Viewing the evidence in light of the elements of the crime as charged tothe jury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's contention that the verdict is against theweight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).
Defendant failed to preserve for our review his contentions that County Court erred in failingto include in its jury charge the definition of the term "home" as used in the order of protection(see CPL 470.05 [2]; see generally Family Ct Act § 759 [a]), as well as amistake of fact defense, based on his belief that the residence of the victim was not her "home"because she was absent therefrom (see CPL 470.05 [2]; see generally Penal Law§ 15.20 [1] [a]). In any event, those contentions are without merit. Family Court Act§ 759 does not define the term "home," and the meaning of that term is within the commonunderstanding of the jury. Contrary to defendant's contention, the residence of the victim did notcease to be her "home" merely because she was on an extended vacation at the time of the crime(see People v Dewall, 15 AD3d498, 501 [2005], lv denied 5 NY3d 787 [2005]). Further, defendant's incorrect beliefconcerning the legal status of the home of the victim based on her absence therefrom does notrender the mistake of fact defense applicable.
We agree with defendant, however, that the court erred in reading back to the jury portionsof the victim's testimony that had been stricken or with respect to which the court had sustainedan objection (see People v Porter, 256 AD2d 363, 364 [1998], lv denied 93NY2d 976 [1999]; see [*2]also People v Roman, 149AD2d 305, 307 [1989]; see generally People v McNab, 144 Misc 2d 612, 616-617[1989]). Nevertheless, we conclude that the error is harmless. The evidence of defendant's guiltis overwhelming, and there is no significant probability that defendant would have beenacquitted but for the error (see Porter, 256 AD2d at 364; see generally People vCrimmins, 36 NY2d 230, 241-242 [1975]). Defendant failed to preserve for our review hisfurther contention that the prosecutor's opening statement was insufficient (see People v Murry, 24 AD3d1319 [2005], lv denied 6 NY3d 815 [2006]; People v White, 283 AD2d 964[2001]). In any event, we conclude that it was sufficient to apprise the jury of the nature of thecase (see generally People v Kurtz, 51 NY2d 380, 383-384 [1980], cert denied451 US 911 [1981]).
Finally, we reject the contention of defendant that he was denied his right to effectiveassistance of counsel (see generallyPeople v Turner, 5 NY3d 476, 480 [2005]; People v Baldi, 54 NY2d 137, 147[1981]). The failure to make motions with little or no chance of success does not constituteineffective assistance of counsel (seePeople v Lewis, 67 AD3d 1396 [2009]; People v DeHaney, 66 AD3d 1040 [2009]). Further, defensecounsel's failure to move for an inspection of the grand jury minutes prior to trial does not aloneconstitute ineffective assistance (seePeople v Coleman, 5 AD3d 1070, 1072 [2004], lv denied 3 NY3d 672 [2004]).In any event, we note that, after defense counsel reviewed a portion of the grand jury minutesprovided to him as Rosario material, he successfully obtained a reduction of the firstcount of the indictment, and thereafter successfully obtained an acquittal of that reduced charge.Viewing the evidence, the law and the circumstances of this case in totality and as of the time ofthe representation, we conclude that defense counsel provided meaningful representation (seegenerally Baldi, 54 NY2d at 147). Present—Scudder, P.J., Peradotto, Carni, Greenand Gorski, JJ.