| People v Wertman |
| 2014 NY Slip Op 01074 [114 AD3d 1279] |
| February 14, 2014 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Adam M. Wertman, Appellant. |
—[*1] Jon E. Budelmann, District Attorney, Auburn (Heather M. Destefano of counsel), forrespondent.
Appeal from a judgment of the Cayuga County Court (Thomas G. Leone, J.),rendered June 28, 2012. The judgment convicted defendant, after a nonjury trial, ofaggravated criminal contempt (five counts), criminal obstruction of breathing or bloodcirculation (three counts) and harassment in the second 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 nonjuryverdict of, inter alia, five counts of aggravated criminal contempt (Penal Law §215.52 [3]) and three counts of criminal obstruction of breathing or blood circulation(§ 121.11 [a]). Defendant failed to preserve for our review his challenge to thelegal sufficiency of the evidence inasmuch as he failed to renew his motion for a trialorder of dismissal after presenting evidence (see People v Hines, 97 NY2d 56, 61[2001], rearg denied 97 NY2d 678 [2001]). In any event, defendant's challenge iswithout merit. "[T]he victim's testimony constituted 'competent evidence which, ifaccepted as true, would establish every element of [the] offense[s] charged' " (People v Smith, 41 AD3d1093, 1094 [2007], lv denied 9 NY3d 1039 [2008], quoting CPL 70.10 [1];see People v Pettengill, 36AD3d 1070, 1071 [2007], lv denied 8 NY3d 948 [2007]; People v Liggins, 2 AD3d1325, 1326 [2003]). Contrary to defendant's contention, it cannot be said that thevictim's testimony was "manifestly untrue, physically impossible, contrary to experience,or self-contradictory" (People vHarris, 56 AD3d 1267, 1268 [2008], lv denied 11 NY3d 925 [2009]; see People v Latorre, 94 AD3d1429, 1430 [2012], lv denied 19 NY3d 998 [2012], reconsiderationdenied 20 NY3d 987 [2012]).
Viewing the evidence in light of the elements of the crimes in this bench trial (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that the verdict is not against the weight of theevidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]). Althougha different verdict would not have been unreasonable (see Danielson, 9 NY3d at348), we conclude that, "[b]ased on the weight of the credible evidence, [County][C]ourt . . . was justified in finding the defendant guilty beyond areasonable doubt" (id.; see People v Romero, 7 NY3d 633, 642-643 [2006]). "'Great deference is to be accorded to the fact[ ]finder's resolution of credibility issuesbased upon its superior vantage point and its opportunity to view witnesses, observedemeanor and hear the testimony' " (People v Gritzke, 292 AD2d 805, 805-806[2002], lv denied 98 NY2d 697 [2002]), and we perceive no reason to disturb thecourt's credibility determinations.
Contrary to the further contention of defendant, we conclude that the court did noterr in its Molineux ruling in allowing the People to introduce testimonyconcerning defendant's prior acts of domestic violence against the victim. That testimonywas "relevant to provide background information concerning the context and history ofdefendant's relationship with the victim" (People v Wolff, 103 AD3d 1264, 1265 [2013], lvdenied 21 NY3d 948 [2013]; see People v Meseck, 52 AD3d 948, 950 [2008], lvdenied 11 NY3d 739 [2008]; People v Nunez, 51 AD3d 1398, 1399-1400 [2008], lvdenied 11 NY3d 792 [2008]), and it was also relevant to the issue of defendant'sintent (see People v Crump,77 AD3d 1335, 1336 [2010], lv denied 16 NY3d 857 [2011]; People v Williams, 29 AD3d1217, 1219 [2006], lv denied 7 [*2]NY3d797 [2006]). Further, the probative value of such testimony exceeded its potential forprejudice (see Wolff, 103 AD3d at 1266; Crump, 77 AD3d at 1336;Nunez, 51 AD3d at 1399-1400).
We reject defendant's further contention that the court's Sandoval rulingconstituted an abuse of discretion (see People v Sandoval, 34 NY2d 371, 374[1974]). Defendant's "intentional violation of prior court orders bore on his honesty,truthfulness and willingness to advance his own interests at the expense of society, allbearing on his testimonial credibility" (People v Olson, 110 AD3d 1373, 1375 [2013]; see People v Salsbery, 78AD3d 1624, 1626 [2010], lv denied 16 NY3d 836 [2011]; People v Foster, 52 AD3d957, 960-961 [2008], lv denied 11 NY3d 788 [2008]), and "[t]he similaritybetween the prior convictions and the instant crimes does not by itself precludecross-examination concerning those prior convictions" (People v Hammond, 84 AD3d1726, 1726-1727 [2011], lv denied 17 NY3d 816 [2011]; see People vHayes, 97 NY2d 203, 208 [2002]; People v Paige, 88 AD3d 912, 912 [2011], lvdenied 18 NY3d 885 [2012]). Although defendant contends that the record does notestablish that the court properly balanced the probative value of his prior convictionsagainst their potential for undue prejudice, "it is well settled that 'an exercise of a trialcourt's Sandoval discretion should not be disturbed merely because the court didnot provide a detailed recitation of its underlying reasoning . . . ,particularly where, as here, the basis of the court's decision may be inferred from theparties' arguments' " (People vMull, 89 AD3d 1445, 1445 [2011], lv denied 19 NY3d 965 [2012],quoting People v Walker, 83 NY2d 455, 459 [1994]).
Defendant further contends that the court abused its discretion in denying his laterequest to call a particular individual as an alibi witness. We note, however, thatdefendant waived that contention because, prior to jury selection, defense counseladvised the court that he did not intend to call that individual as a witness and thus thatthe court "[did not] need to address any issues" with respect to such individual (see generally People v Harris,97 AD3d 1111, 1112 [2012], lv denied 19 NY3d 1026 [2012]; People v Hamilton, 96 AD3d1518, 1519 [2012], lv denied 19 NY3d 997 [2012]).
Finally, we reject defendant's challenge to the severity of the sentence. The courtimposed the minimum term of incarceration allowed on defendant's conviction, as asecond felony offender, of aggravated criminal contempt, and the terms of incarcerationimposed on the remaining convictions were directed to run concurrently thereto.Present—Centra, J.P., Peradotto, Lindley, Sconiers and Whalen, JJ.