| People v Long |
| 2012 NY Slip Op 04595 [96 AD3d 1492] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v William Long,Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.), renderedSeptember 2, 2010. The judgment convicted defendant, upon a nonjury verdict, of criminalcontempt in the second degree and stalking in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a nonjury trial, ofcriminal contempt in the second degree (Penal Law § 215.50 [3]) and stalking in the fourthdegree (§ 120.45 [2]). Defendant failed to preserve for our review his challenge to the legalsufficiency of the evidence supporting the conviction inasmuch as he failed to renew his motionfor a trial order of dismissal after presenting evidence (see People v Hines, 97 NY2d 56,61 [2001], rearg denied 97 NY2d 678 [2001]). We reject defendant's further contentionthat the verdict is against the weight of the evidence. Viewing the evidence in light of theelements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), and affordinggreat deference to County Court's credibility determinations (see People v White, 43 AD3d 1407, 1408 [2007], lv denied9 NY3d 1010 [2007]), we conclude that the alleged deficiencies in the evidence are not sosubstantial as to render the verdict against the weight of the evidence (see generally People vBleakley, 69 NY2d 490, 495 [1987]).
We also reject defendant's contention that the court erred in its Molineux ruling. It iswell settled that evidence of a defendant's prior bad acts is admissible "to show (1) intent, (2)motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant," where, ashere, its probative value outweighs its risk of prejudice to defendant (People v Alvino, 71NY2d 233, 242 [1987]; see People vArafet, 13 NY3d 460, 465 [2009]; People v Ventimiglia, 52 NY2d 350, 359[1981]). Defendant's prior behavior toward the complainant was admissible "to explain theissuance of an order of protection, to establish the defendant's motive and intent in thecommission of the crimes, and to establish the complainant's state of mind" (People v Melendez, 8 AD3d 680,681 [2004], lv denied 3 NY3d 741 [2004]; see People v Morris, 82 AD3d 908, 908-909 [2011], lvdenied 17 NY3d 808 [2011]).
Defendant's contention that he was denied the right to effective assistance of counsellikewise is lacking in merit. Defendant failed to "demonstrate the absence of strategic or other[*2]legitimate explanations" for the failure of defense counsel tofile a more thorough CPL 250.10 notice of intent to proffer psychiatric evidence (People vRivera, 71 NY2d 705, 709 [1988]). Upon our review of the record as a whole, we concludethat defense counsel provided meaningful representation (see generally People vBenevento, 91 NY2d 708, 712 [1998]; People v Baldi, 54 NY2d 137, 147 [1981]).
Contrary to defendant's remaining contention, the sentence is not unduly harsh or severe. Wenote, however, that the certificate of conviction incorrectly reflects that defendant was sentencedto a three-year term of probation upon the conviction of stalking in the fourth degree, a class Bmisdemeanor. The sentencing minutes establish that the court imposed a one-year term ofprobation upon that count, to be served concurrently with the sentence of probation imposed onthe remaining charge. The certificate of conviction must therefore be amended accordingly (see e.g. People v Carrasquillo, 85AD3d 1618, 1620 [2011], lv denied 17 NY3d 814 [2011]; People v Afrika, 79 AD3d 1678,1680 [2010], lv denied 17 NY3d 791 [2011]). Present—Scudder, P.J., Smith,Fahey, Lindley and Martoche, JJ.