| People v Curry |
| 2011 NY Slip Op 02226 [82 AD3d 1650] |
| March 25, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v BrianCurry, Appellant. |
—[*1]
Appeal from a judgment of the Erie County Court (Matthew J. Murphy, III, A.J.), renderedJanuary 14, 2009. The judgment convicted defendant, upon a nonjury verdict, of aggravatedcriminal contempt (three counts) and aggravated harassment in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a bench trial, ofthree counts of aggravated criminal contempt (Penal Law § 215.52 [3]) and one count ofaggravated harassment in the second degree (§ 240.30 [1] [a]), based upon evidence thathe wrote a series of threatening letters to his ex-girlfriend, her mother, and his teenaged daughter.Contrary to the contention of defendant, County Court properly admitted in evidence additionalletters to establish his identity as the author of the letters at issue (see generally People vMolineux, 168 NY 264, 293-294 [1901]). Defendant had previously pleaded guilty tocriminal contempt on two occasions, admitting that he sent letters threatening one of the victimsin this case. The People established the similarities between the letters in those cases and theones at issue here, including their content, writing style, paper, and envelopes, and they alsoestablished that in all cases defendant had sent multiple, nearly identical letters on the same day.Thus, the People presented clear and convincing evidence that defendant committed the priorcrimes by using a distinctive and unique modus operandi, which was sufficiently similar to themanner in which the crimes herein were committed to be probative of defendant's identity as theperpetrator (see generally People v Mateo, 93 NY2d 327, 332 [1999]; People vAlvino, 71 NY2d 233, 242 [1987]; People v Robinson, 68 NY2d 541, 549-550[1986]). Consequently, the court properly concluded that " 'the mere proof that the defendant hadcommitted [the prior] similar act[s was] highly probative of the fact that he committed the onecharged' " (People v Allweiss, 48 NY2d 40, 47-48 [1979], quoting People vCondon, 26 NY2d 139, 144 [1970]).
Viewing the evidence in light of the elements of the crimes in this bench trial (see People v Danielson, 9 NY3d342, 349 [2007]), we conclude that the verdict is not against the weight of the evidence(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Although there wasconflicting testimony with respect to whether the handwriting on the letters at issue matched thatof defendant, and thus "an acquittal would not have been unreasonable" (Danielson, 9NY3d at 348), we conclude that, "[b]ased on the weight of the credible evidence, the court. . . was justified in finding the defendant guilty beyond a reasonable doubt"(id.; see People v Romero, 7NY3d 633, 642-643 [2006]). " 'Great deference is to be accorded to the fact[ ]finder'sresolution of credibility issues based upon its superior vantage point and its opportunity to viewwitnesses, observe demeanor and hear the testimony' " (People v Gritzke, 292 AD2d 805,805-806 [2002], lv denied 98 NY2d 697 [2002]; see People v Mosley, 59 AD3d 961 [2009], lv denied 12NY3d 918 [2009], reconsideration denied 13 NY3d 861 [2009]), and we perceive noreason to disturb the court's credibility determinations.
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P., Fahey, Carni,Lindley and Gorski, JJ.