| People v Cung |
| 2013 NY Slip Op 08687 [112 AD3d 1307] |
| December 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v VanT. Cung, Appellant. (Appeal No. 1.) |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges,J.), rendered September 21, 2011. The judgment convicted defendant, upon a juryverdict, of criminal contempt in the first degree and endangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: In appeal No. 1, defendant appeals from a judgment convicting himupon a jury verdict of criminal contempt in the first degree (Penal Law § 215.51[b] [i]) and endangering the welfare of a child (§ 260.10 [1]) and, in appeal No. 2,he appeals from a judgment convicting him upon the same jury verdict of criminalcontempt in the second degree (§ 215.50 [3]) as a lesser included offense ofcriminal contempt in the first degree (§ 215.51 [b] [ii]). In both appeals, defendantcontends that the evidence is legally insufficient to support his conviction of the crimesof criminal contempt in the first and second degrees, and that the verdict with respect tothose crimes is against the weight of the evidence. We affirm.
As defendant correctly concedes, his challenge to the legal sufficiency of theevidence is unpreserved for our review inasmuch as "his motion for a trial order ofdismissal was not specifically directed at the grounds advanced on appeal" (People v Wright, 107 AD3d1398, 1401 [2013]; see People v Gray, 86 NY2d 10, 19 [1995]). In anyevent, we reject defendant's challenge.
With respect to appeal No. 1, defendant contends that the evidence is legallyinsufficient to establish that he knowingly and intentionally violated the June 2010no-contact order of protection issued in favor of the victim (hereafter, first order ofprotection), and that the verdict is against the weight of the evidence in that regard. Wereject those contentions. It is undisputed that defendant was present in court andrepresented by an attorney when the first order of protection was issued, that he signedthe order, and that he received a copy thereof. Although defendant claimed that he didnot fully understand the order of protection because he speaks only Chin, a Burmesedialect, the People introduced evidence that the order of protection was explained todefendant in Burmese, and that defendant understood that he had to stay away from, andcould not contact, the victim. A Burmese interpreter testified that, on the date the firstorder [*2]of protection was issued, he translated the orderof protection from English to Burmese and explained it to defendant (see People vWilmore, 305 AD2d 117, 118 [2003], lv denied 100 NY2d 589 [2003]).Further, a caseworker testified that, after the incident underlying defendant's convictionof criminal contempt in the first degree, defendant admitted to her that he knew there wasan order of protection in place at the time of the incident and that he understood itsmeaning. We thus conclude that "[t]he evidence is legally sufficient . . . toestablish defendant's knowledge of the existence and contents of [the first] order ofprotection [and] . . . the conduct prohibited thereby" (People v Roman, 13 AD3d1115, 1115 [2004], lv denied 4 NY3d 802 [2005]; see Wilmore, 305AD2d at 118).
Contrary to the further contention of defendant in appeal No. 1, the evidence islegally sufficient to establish that he intentionally placed or attempted to place the victimin reasonable fear of physical injury (see Penal Law § 215.51 [b] [i];see also People v Harrison, 270 AD2d 876, 876 [2000], lv denied 95NY2d 797 [2000]). "It is well established that a defendant may be presumed to intend thenatural and probable consequences of his [or her] actions" (Roman, 13 AD3d at1116 [internal quotation marks omitted]), and that "[i]ntent may be inferred from conductas well as the surrounding circumstances" (People v Steinberg, 79 NY2d 673,682 [1992]; see People vKelly, 79 AD3d 1642, 1642 [2010], lv denied 16 NY3d 832 [2011]).Here, the People established that, after calling the victim 23 times, defendant knocked onthe door to the victim's apartment and, when she did not answer, he entered the apartmentthrough an upstairs door or window. The victim called 911 and then fled through awindow onto the roof of the porch with the parties' infant daughter strapped to her backbecause, according to the victim, she was afraid defendant would kill her. Defendant thenpicked up a knife and, according to several police officers who responded to the scene,waved the knife at the victim and shouted at her through the window. A neighbortestified that the victim was "crying" and "screaming" on the roof of the porch, and thatshe "sounded terrified." We thus conclude that the evidence is legally sufficient toestablish that defendant intentionally placed the victim in reasonable fear of physicalinjury (see Harrison, 270 AD2d at 876; see also People v Crump, 77 AD3d 1335, 1335-1336[2010], lv denied 16 NY3d 857 [2011]). Indeed, defendant himself testified thatthe victim was afraid of him and that she was going to jump off the roof to get away fromhim.
With respect to appeal No. 2, we likewise conclude that the evidence is legallysufficient to establish that defendant intentionally violated the order of protection (seePenal Law § 215.50 [3]; Roman, 13 AD3d at 1115). Althoughdefendant again contends that he did not fully understand the October 2010 order ofprotection issued in favor of the victim (hereafter, second order of protection), heconcedes that the order "was served at a court proceeding at which [he] was assisted bycounsel and an interpreter" (People v Pichardo, 298 AD2d 150, 151 [2002],lv denied 99 NY2d 562 [2002]). With respect to defendant's claim that he did notthink that it was a violation of the second order of protection if the victim "accept[ed][him]," the victim testified that she permitted defendant into her home in December 2010only because he threatened her (see generally People v Barrios-Rodriguez, 107 AD3d 1533,1534 [2013]).
Because the evidence is legally sufficient to support the conviction of criminalcontempt in the first and second degrees, there is no merit to defendant's furthercontention that defense counsel's failure to make a specific motion for a trial order ofdismissal relative to those crimes constitutes ineffective assistance of counsel (see People v Pytlak, 99 AD3d1242, 1243 [2012], lv denied 20 NY3d 988 [2012]). Further, viewing theevidence in light of the elements of criminal contempt in the first and second degrees ascharged to the jury (see Peoplev Danielson, 9 NY3d 342, 349 [2007]), we reject defendant's contention that theverdict is against the weight of the evidence with respect to those crimes (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]).
Contrary to the further contention of defendant in both appeals, we conclude thatSupreme Court did not err in its Molineux ruling in allowing the People tointroduce testimony [*3]regarding defendant's prior actsof domestic violence against the victim inasmuch as that testimony was "relevant toprovide background information concerning the context and history of defendant'srelationship with the victim" (People v Wolff, 103 AD3d 1264, 1265 [2013], lvdenied 21 NY3d 948 [2013]; see People v Dennis, 91 AD3d 1277, 1279 [2012], lvdenied 19 NY3d 995 [2012]), and was also relevant to the issue whether defendantintended to place or to attempt to place the victim in reasonable fear of physical injury(see People v Garvin, 37AD3d 372, 372-373 [2007], lv denied 8 NY3d 984 [2007]; see also People v Thomas, 85AD3d 1572, 1572 [2011], affd 21 NY3d 226 [2013]; People v McCowan, 45 AD3d888, 890 [2007], lv denied 9 NY3d 1007 [2007]). Further, the probativevalue of such testimony exceeded its potential for prejudice (see Wolff, 103AD3d at 1266; Crump, 77 AD3d at 1336; Garvin, 37 AD3d at 372-373),and the court's limiting instructions minimized any prejudicial impact (see People v Rogers, 103AD3d 1150, 1152-1153 [2013], lv denied 21 NY3d 946 [2013]).
The court likewise did not err in its Molineux ruling in allowing the victim totestify that defendant forced her to engage in sexual intercourse during the time periodcharged in the indictment in appeal No. 2. That testimony was relevant to an element ofthe charged crime, i.e., whether defendant "intentionally place[d] or attempt[ed] to place[the victim] . . . in reasonable fear of physical injury . . . by. . . engaging in a course of conduct or repeatedly committing acts over[that] period of time" (Penal Law § 215.51 [b] [ii]; see People v Ray, 63 AD3d1705, 1706 [2009], lv denied 13 NY3d 838 [2009]).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Peradotto, Lindley, Valentino and Whalen, JJ.