| People v Pytlak |
| 2012 NY Slip Op 06707 [99 AD3d 1242] |
| October 5, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Paul Pytlak,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.), renderedOctober 19, 2010. The judgment convicted defendant, upon a jury verdict, of aggravated criminalcontempt (three counts) and stalking in the fourth 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 ofthree counts of aggravated criminal contempt (Penal Law § 215.52 [3]) and two counts ofstalking in the fourth degree (§ 120.45 [2]). We reject defendant's contention that CountyCourt erred in admitting testimony concerning defendant's prior conduct toward the victim. Thattestimony was relevant to establish defendant's motive and intent in committing the crimescharged (see People v Long, 96AD3d 1492, 1493 [2012]; People vPerez, 67 AD3d 1324, 1325-1326 [2009], lv denied 13 NY3d 941 [2010]; People v Freece, 46 AD3d 1428,1428-1429 [2007], lv denied 10 NY3d 811 [2008]); to establish that the victim had areasonable fear of physical injury (see § 215.51 [b] [iii]; People v Crump, 77 AD3d 1335,1336 [2010], lv denied 16 NY3d 857 [2011]); and to establish that defendant's violationof the order of protection was neither innocent nor inadvertent (see People v Perez, 49 AD3d 903,903 [2008], lv denied 10 NY3d 938 [2008]; see also People v Guiteau, 267 AD2d1094 [1999], lv denied 94 NY2d 920 [2000]). Moreover, the court properly determinedthat the probative value of that testimony outweighed its potential for prejudice (see People v Dizak, 93 AD3d1182, 1184 [2012], lv denied 19 NY3d 972 [2012]; People v DiTucci, 81 AD3d 1249,1250 [2011], lv denied 17 NY3d 794 [2011]; see generally People v Alvino, 71NY2d 233, 241-242 [1987]).
Defendant's challenge to the legal sufficiency of the evidence with respect to the convictionof aggravated criminal contempt is not preserved for our review because he failed to renew hismotion for a trial order of dismissal after presenting proof (see People v Hines, 97 NY2d56, 61 [2001], rearg denied 97 NY2d 678 [2001]). In any event, defendant's challengelacks merit (see generally People v Bleakley, 69 NY2d 490, 495 [1987]) and, viewing theevidence in light of the elements of the crime of aggravated criminal contempt as charged to thejury (see People v Danielson, 9NY3d 342, 349 [2007]), we reject defendant's further contention that the verdict is againstthe weight of the evidence with respect to that crime (see People v Curry, 82 AD3d 1650, 1650-1651 [2011], lvdenied 17 NY3d 805 [2011]; People v Van Duser [appeal No. 2], 277 AD2d 1034,1035 [2000], lv [*2]denied 96 NY2d 739 [2001]; seegenerally Bleakley, 69 NY2d at 495). "[T]he jury was in the best position to assess thecredibility of the witnesses and, on this record, it cannot be said that the jury failed to give theevidence the weight it should be accorded" (People v Orta, 12 AD3d 1147, 1147 [2004], lv denied 4NY3d 801 [2005]).
Finally, we reject defendant's contention that he was denied effective assistance of counsel.Because the evidence is legally sufficient to support defendant's conviction of aggravatedcriminal contempt, it cannot be said that defense counsel's failure to renew the motion for a trialorder of dismissal constitutes ineffective assistance of counsel (see People v Holt, 93 AD3d 1304,1305 [2012]; People v Washington,60 AD3d 1454, 1455 [2009], lv denied 12 NY3d 922 [2009]; see generallyPeople v Baldi, 54 NY2d 137, 147 [1981]). Also, defendant has failed to "demonstrate theabsence of strategic or other legitimate explanations" for defense counsel's failure to obtain thevictim's mental health records (People v Rivera, 71 NY2d 705, 709 [1988]; seePeople v Castleberry, 265 AD2d 921, 921-922 [1999], lv denied 94 NY2d 902[2000]). Based on the record before us, we conclude that defendant received meaningfulrepresentation (see generally People v Benevento, 91 NY2d 708, 712-713 [1998];Baldi, 54 NY2d at 147). Present—Fahey, J.P., Peradotto, Carni and Sconiers, JJ.