| People v Kelly |
| 2010 NY Slip Op 09652 [79 AD3d 1642] |
| December 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Shawn A. Kelly, Appellant. |
—[*1] Scott D. McNamara, District Attorney, Utica (Steven G. Cox of counsel), forrespondent.
Appeal from a judgment of the Oneida County Court (Barry M. Donalty, J.), rendered July27, 2007. The judgment convicted defendant, upon a jury verdict, of criminal contempt in thefirst degree (two counts).
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 of twocounts of criminal contempt in the first degree (Penal Law § 215.51 [b] [iv]; [c]).Defendant contends that the evidence is legally insufficient to support the conviction under bothcounts. With respect to the first count, defendant contends that there was no evidence that heintended to harass, annoy, threaten or alarm the victim (see § 215.51 [b] [iv]).Viewing the evidence in the light most favorable to the prosecution, as we must (see People vContes, 60 NY2d 620, 621 [1983]), we conclude that the evidence is legally sufficient withrespect to that count (see § 215.51 [b] [iv]; People v Alexander, 50 AD3d 816, 817-818 [2008], lvdenied 10 NY3d 955 [2008]). It is well established that "[i]ntent may be inferred fromconduct as well as the surrounding circumstances" (People v Steinberg, 79 NY2d 673,682 [1992]), and the evidence presented at trial established that defendant repeatedly andcontinuously telephoned the victim as well as her friends over a period of six hours despite beingrepeatedly told that the victim did not wish to speak with him. With respect to the second count,defendant contends that the People failed to present the evidence required by the statute, i.e., thatthe predicate conviction arose from the violation of a "stay away" provision of an order ofprotection (see Penal Law § 215.51 [c]). Defendant failed to preserve thatcontention for our review, however, inasmuch as his motion for a trial order of dismissal was notspecifically directed at that alleged deficiency in the evidence (see People v Gray, 86NY2d 10, 19 [1995]).
Contrary to defendant's further contention, County Court's "Sandoval compromise. . . reflects a proper exercise of the court's discretion" (People v Thomas,305 AD2d 1099 [2003], lv denied 100 NY2d 600 [2003]). In any event, any alleged errorin the court's Sandoval compromise is harmless. The evidence of defendant's guilt isoverwhelming, and there is no significant probability that defendant would have been acquittedbut for the alleged error (see People vSingleton, 66 AD3d 1444, 1445 [2009], lv denied 13 NY3d 862 [2009]; seegenerally People v Crimmins, 36 NY2d 230, 241-242 [1975]). The sentence is not undulyharsh or severe. We have considered defendant's remaining contentions and conclude that theyare without merit. Present—Centra, J.P., Carni, Sconiers and Pine, JJ.