| People v Barrios-Rodriguez |
| 2013 NY Slip Op 04467 [107 AD3d 1533] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v NoelBarrios-Rodriguez, Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Thomas P. Franczyk, J.),rendered April 25, 2011. The judgment convicted defendant, upon a nonjury verdict, ofcriminal contempt in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trialof criminal contempt in the first degree (Penal Law § 215.51 [c]), defendantcontends that the evidence is legally insufficient to establish that he intended to violatethe no-contact order of protection that had been issued in favor of the victim, and that theverdict is against the weight of the evidence in that regard. We reject those contentions.Even assuming, arguendo, that the victim initiated the contact with defendant on the dayin question, as defendant contends, we note that the People presented evidenceestablishing that defendant followed the victim outside the house in which he waslocated and, after speaking to her briefly, he then followed her to a nearby restaurant. Thevictim entered the restaurant, where she telephoned the police. Shortly thereafter, thepolice located defendant in a parking lot that was approximately a quarter of a mile fromthe restaurant. Viewing the evidence in the light most favorable to the People (seePeople v Contes, 60 NY2d 620, 621 [1983]), we conclude that the evidence islegally sufficient to establish that defendant intentionally violated the order of protection(see generally People v Bleakley, 69 NY2d 490, 495 [1987]). We furtherconclude that, viewing the evidence in light of the elements of the crime in this nonjurytrial (see People vDanielson, 9 NY3d 342, 349 [2007]), and affording great deference to CountyCourt's credibility determinations (see People v White, 43 AD3d 1407, 1408 [2007], lvdenied 9 NY3d 1010 [2007]), the verdict is not against the weight of the evidence(see generally Bleakley, 69 NY2d at 495).
There is no merit to defendant's additional contention that the court erred in denyinghis motion to set aside the verdict pursuant to CPL 330.30. Even assuming, arguendo,that the victim's testimony at the persistent felony offender hearing constitutes newlydiscovered evidence as defendant suggests, we conclude that the testimony is not "ofsuch character as to create a probability that had such evidence been received at the trialthe verdict would have been more favorable to the defendant" (CPL 330.30 [3]). Finally,given defendant's significant [*2]criminal history, whichincludes five prior felony convictions and multiple convictions based on his violation ofcourt orders, we perceive no basis to modify his sentence as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [b]). Present—Smith, J.P.,Peradotto, Lindley, Valentino and Whalen, JJ.