| People v Vega |
| 2012 NY Slip Op 04213 [95 AD3d 773] |
| May 31, 2012 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v EmilyVega, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Allan H. Saperstein of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Colleen Duffy, J.), rendered September 20, 2010,convicting defendant, after a nonjury trial, of attempted criminal contempt in the second degreeand harassment in the second degree, and sentencing her to a conditional discharge and a fine of$125, unanimously affirmed.
The information charging defendant with harassment in the second degree was faciallysufficient (CPL 100.40). The information set out that defendant approached the victim and stated,"[W]hat happened before ain't over and I'm going to finish what I started." The information alsostated that the victim had a valid order of protection against defendant, which provided proof that"tend[ed] to support the charges" (CPL 100.15 [3]; cf. People v Todaro, 26 NY2d 325,329-330 [1970]).
The evidence was legally sufficient to establish defendant's guilt of harassment in the seconddegree. The victim testified that defendant walked "very close" to her face, and threatened that"this wasn't over yet," "that it was going to get worse" and that she "was going to finish off whatshe had started." The victim perceived these statements as a threat because of the way defendantsaid them, and because defendant had hurt her on a prior occasion (see Penal Law§ 240.26 [1]; compare People v Dietze, 75 NY2d 47, 53-54 [1989]). We also findthat the verdict was not against the weight of the evidence (see People v Danielson, 9 NY3d 342, 349 [2007]). There is nobasis for disturbing the credibility determinations of the trial court.
Defendant failed to preserve her constitutional claim that she was denied her right to theassistance of counsel when counsel's request to make a closing argument was denied (see People v Lane, 7 NY3d 888,889 [2006]; People v Kello, 96 NY2d 740, 743 [2001]), and we decline to review it inthe interest of justice. As an alternative holding, we reject it on the merits. While a defendantsentenced to a conditional discharge has the right to assistance of counsel (Alabama vShelton, 535 US 654, 658 [2002]), that right was not infringed in this matter. The recordshows that counsel presented what, in effect, was a summation, in moving to dismiss the chargesat the close of the People's case and again at the close of the evidence. Counsel presented all ofthe arguments ultimately presented on appeal in challenging the weight and sufficiency of the[*2]evidence. The trial court, therefore, received the benefit ofcounsel's distillation of the evidence and highlighting of weaknesses in the prosecution's case(cf. Herring v New York, 422 US 853, 864 [1975]). Concur—Mazzarelli, J.P.,Catterson, DeGrasse, Richter and Manzanet-Daniels, JJ.