| People v Jones |
| 2010 NY Slip Op 09016 [79 AD3d 1244] |
| December 9, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York, Respondent, v Octavious Jones,Appellant. |
—[*1] Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Ulster County (Czajka, J.), renderedNovember 17, 2006, upon a verdict convicting defendant of the crimes of burglary in the seconddegree, aggravated criminal contempt and criminal contempt in the first degree (two counts).
In January 2006, defendant entered a second-floor apartment in the City of Kingston, UlsterCounty, where the victim lived with her mother and several other people. At that time, defendant wasprohibited from having contact with the victim by a three-year order of protection previously entered byKingston City Court upon his conviction of criminal contempt in the second degree. After a brief verbalaltercation with the victim, defendant left. The victim's roommate sought to lock the door but, beforeshe could do so, defendant reentered and struck the victim in the face. The victim called for her motherand told her that defendant had entered the apartment through the window and had hit her. The mothersaw defendant descend the stairs, exit the building, and run toward a house where police found himsoon thereafter.
Defendant was charged with burglary in the second degree (two counts), criminal contempt in thefirst degree (two counts), and aggravated criminal contempt. Following a jury trial, he was acquitted ofone of the burglary counts and convicted of the four other charges. County Court sentenced defendantas a second felony offender to an aggregate prison term of 15 years plus five years of postreleasesupervision. Defendant appeals.[*2]
Initially, defendant contends that his burglary and aggravatedcriminal contempt convictions were not based on legally sufficient evidence and were against the weightof the evidence. As to aggravated criminal contempt, defendant asserts that the People did notdemonstrate that he caused physical injury to the victim (see Penal Law § 215.52[1]).[FN*]As pertinent here, physical injury consists of "substantial pain" (Penal Law § 10.00 [9]), meaningpain that is "more than slight or trivial . . . [but] need not . . . be severe orintense" (People v Chiddick, 8 NY3d445, 447 [2007]; see People vRivera, 42 AD3d 587, 588 [2007], lv denied 9 NY3d 880 [2007]). "A variety offactors are relevant in determining whether physical injury has been established, including the injuryviewed objectively, the victim's subjective description of the injury and [his or] her pain, and whetherthe victim sought medical treatment" (Peoplev Dixon, 62 AD3d 1036, 1039 [2009], lv denied 12 NY3d 912 [2009] [internalquotation marks and citations omitted]; accord People v Stearns, 72 AD3d 1214, 1217 [2010], lvdenied 15 NY3d 778 [2010]). The victim did not testify, but the roommate testified that she sawdefendant strike the victim in the mouth, the mother and the roommate testified that the victim bledsignificantly, and the roommate described "rush[ing] her to the hospital." The treating physician testifiedthat the victim's mouth suffered several lacerations, one of which required five sutures, and that heprescribed two different medications to control her pain. Viewed in the light most favorable to thePeople, this evidence was legally sufficient to support the conclusion that the victim suffered a physicalinjury (see People v Foster, 52 AD3d957, 959-960 [2008], lv denied 11 NY3d 788 [2008]; People v Porter, 305AD2d 933, 933-934 [2003], lv denied 100 NY2d 586 [2003]). Further, considering theevidence in a neutral light and according deference to the jury's opportunity to view the witnesses (see People v Romero, 7 NY3d 633,644 [2006]), the conviction was not against the weight of the evidence (see People v Perser, 67 AD3d 1048,1049-1050 [2009], lv denied 13 NY3d 941 [2010]; People v Foster, 52 AD3d at960).
Defendant's challenge to the legal sufficiency of the evidence supporting the burglary conviction wasnot fully preserved, as the contentions he now raises were, in part, presented for the first time in hispresentencing motion after trial (see People v Hines, 97 NY2d 56, 61 [2001]; People v Gonzalez, 64 AD3d 1038,1039 [2009], lv denied 13 NY3d 796 [2009]). " 'However, we necessarily review theevidence adduced as to each of the elements of the crimes in the context of our review of defendant'schallenge regarding the weight of the evidence' " (People v Gonzalez, 64 AD3d at 1040,quoting People v Caston, 60 AD3d1147, 1148-1149 [2009]). Defendant's contention that the People failed to demonstrate that heentered the apartment unlawfully (see Penal Law § 140.25) is without merit, as the orderof protection explicitly required him to stay away from the victim's home (see Penal Law§§ 215.50, 215.51). Further, his violation of the protective order did not, as he contends,serve both as the basis for the illegality of his entry and as the crime that he intended to commit when heentered the [*3]apartment (see Penal Law § 140.25).Neither the indictment nor the jury charge required the People to limit their case to proving thatdefendant intended to commit a particular crime (see People v Lewis, 5 NY3d 546, 552 n 7 [2005]), and the jury was notprecluded from considering defendant's intent to commit a further violation of the order of protectiononce he had entered the apartment "in a manner that went beyond trespass" (id. at 552; see People v Dombrowski, 55 AD3d1358, 1359 [2008], lv denied 11 NY3d 924 [2009]). Insofar as defendant's challengeswere preserved, the evidence—including, among other things, the roommate's testimony thatdefendant struck the victim after calling her a "liar"—was legally sufficient to support theconviction (see People v Lewis, 5 NY3d at 552-553). In addition, the conviction was notagainst the weight of the evidence (see People v Dombrowski, 55 AD3d at 1359; compare People v VanDeWalle, 46 AD3d1351, 1352 [2007], lv denied 10 NY3d 845 [2008]).
Defendant was not, as he contends, deprived of a fair trial by County Court's evidentiary rulings.The court correctly permitted the mother to testify about the victim's statements immediately after theincident, as these statements were classic examples of the excited utterance exception to the hearsayrule (see People v Fratello, 92 NY2d 565, 570 [1998], cert denied 526 US 1068[1999]). Moreover, the statements were not, as defendant claims, precluded as testimonial (seegenerally Crawford v Washington, 541 US 36 [2004]; see People v Nieves-Andino, 9 NY3d 12, 14-15 [2007]), since theywere not made to police or their agents, but to the victim's mother in the immediate aftermath of aviolent confrontation (see People vBradley, 8 NY3d 124, 126-127 [2006]). The court did not deprive defendant of the right topresent a defense by cautioning his counsel that asking the victim's roommate about prior occasionswhen defendant had been allowed to enter the apartment might open the door to inquiry into previousbad acts. Whether or not defendant was welcome in the apartment, his presence there was prohibitedby the restraining order. Since the line of inquiry would not have given rise to a defense, the court didnot err in warning against it, and defendant's counsel was not ineffective for terminating it (comparePeople v Fleegle, 295 AD2d 760, 762-763 [2002]; People v Hollins, 221 AD2d 863,864 [1995]).
County Court properly interrupted defense counsel's summation to instruct the jury that it was notto consider defendant's potential punishment in its deliberations, after defense counsel asked the jurywhether the evidence justified sending defendant to prison. A curative instruction was proper, as theissue of punishment was an external factor not grounded in the evidence adduced at trial and, in anyevent, the brief interruption was too minor to deprive defendant of a fair trial (see People v Facey, 22 AD3d 765,766 [2005]; see also People v Burdash, 92 AD2d 627, 627 [1983]). Defendant failed topreserve his claim that a missing witness charge should have been issued as to the victim by requestingthe charge at trial (see People v Williams, 132 AD2d 892, 894 [1987]; see also People vBurdick, 266 AD2d 711, 713 [1999]). In any event, defendant was not entitled to the charge.Given the victim's unwillingness to cooperate with the prosecution and defendant's apparent expectationthat she would testify in his favor, she was not in the People's control (see People v Turner, 73 AD3d 1282,1284 [2010]). Accordingly, defense counsel's failure to request the charge did not deprive defendant ofmeaningful representation (see People v Geer, 213 AD2d 764, 764-765 [1995], lvdenied 86 NY2d 781 [1995]).
We disagree with defendant's assertion that the indictment did not provide a "plain and concisefactual statement" (CPL 200.50 [7]) to support each element of the charged crimes. The victim's namewas not required, and defendant was provided with sufficient information to identify her and prepare adefense through the bill of particulars, which provided the address where the charged crimes occurredand a copy of the order of protection (see CPL 200.50; People [*4]v Kossman, 46 AD3d 1104,1105 [2007]; compare People v Sanchez, 84 NY2d 440, 446 [1994]). As to the claim thatCounty Court should have advised prospective jurors during jury selection that they could speakprivately to the court and the attorneys if they wished to do so, defendant does not explain why thefailure to do so was error or how it deprived him of a fair trial, and we perceive no basis for eithercontention.
Defendant's sentence as a second felony offender to the maximum term of 15 years for burglary inthe second degree was not harsh and excessive, given his complete lack of remorse and his history ofprevious crimes, including other offenses involving the same victim (see People v Vanbergen, 68 AD3d 1249, 1251 [2009], lvdenied 14 NY3d 806 [2010]; People vCarter, 50 AD3d 1318, 1323 [2008], lv denied 10 NY3d 957 [2008]). Finally,County Court's order of protection prohibiting defendant from contacting the victim was not overbroad;nothing in the record other than defense counsel's assertions supports the contention that thevictim—who was injured by a crime of violence—did not want an order of protection.Defendant's remaining contentions have been considered and found to be without merit.
Rose, J.P., Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment is affirmed.
Footnote *: To the extent that this argument maybe construed as a claim that the guilty verdict on the aggravated criminal contempt charge wasinconsistent with defendant's acquittal on the charge of burglary in the second degree pursuant to PenalLaw § 140.25 (1) (b), the contention was unpreserved (see People v Satloff, 56 NY2d745, 746 [1982]; People v Dann, 14AD3d 795, 797-798 [2005], lv denied 4 NY3d 885 [2005]), and we decline to exerciseour interest of justice jurisdiction (see Peoplev Johnson, 40 AD3d 1270, 1272-1273 [2007], lv denied 9 NY3d 877 [2007];People v Rust, 233 AD2d 778, 779 [1996], lv denied 89 NY2d 988 [1997]).