| People v Williams |
| 2014 NY Slip Op 04308 [118 AD3d 1295] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vShuvon J. Williams, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
Lawrence Friedman, District Attorney, Batavia (William G. Zickl of counsel), forrespondent.
Appeal from a judgment of the Genesee County Court (Robert C. Noonan, J.),rendered October 3, 2012. The judgment convicted defendant, upon a jury verdict, ofcriminal contempt in the first degree, criminal contempt in the second degree andendangering the welfare of a child.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reversing that part convicting defendant of criminal contempt in the seconddegree and dismissing count two of the indictment and as modified the judgment isaffirmed.
Memorandum: Defendant appeals from a judgment convicting her upon a juryverdict of criminal contempt in the first degree (Penal Law § 215.51 [b][v]), criminal contempt in the second degree (§ 215.50 [3]), andendangering the welfare of a child (§ 260.10 [1]). We agree with defendantthat her conviction under count two of the indictment, charging criminal contempt in thesecond degree, must be reversed and that count dismissed as a lesser inclusory concurrentcount of count one, charging criminal contempt in the first degree (see People v Mingo, 66 AD3d1043, 1044-1045 [2009], lv denied 14 NY3d 843 [2010]; see also People v Duperroy, 88AD3d 606, 607 [2011], lv denied 18 NY3d 957 [2012]). We thereforemodify the judgment accordingly.
We reject defendant's contention that the testimony of the police officer at theWade hearing was incredible as a matter of law (see generally People v Spann,82 AD3d 1013, 1014 [2011]; People v Donaldson, 35 AD3d 1242, 1243 [2006], lvdenied 8 NY3d 984 [2007]). Defendant preserved for our review her contention thatthe evidence is legally insufficient only to the extent that she contends that she did nothave knowledge of the order of protection and its terms (see generally People vGray, 86 NY2d 10, 19 [1995]). We reject that contention inasmuch as "defendant'ssignature acknowledging receipt of the order of protection establishes that it was servedand that [s]he was on notice as to its contents" (People v Soler, 52 AD3d 938, 940 [2008], lvdenied 11 NY3d 741 [2008]; cf. People v Bulgin, 105 AD3d 551, 551 [2013], lvdenied 21 NY3d 1002 [2013]). Defendant's contention that the order of protectionwas improperly admitted in evidence is not preserved for our review (see People v Huntsman, 96AD3d 1387, 1388-1389 [2012], lv denied 20 NY3d 1099 [2013]), and wedecline to exercise our power to review that contention as a matter of discretion in theinterest of justice (see CPL 470.15 [6] [a]). Contrary to defendant's furthercontention, the verdict is not against [*2]the weight of theevidence. The minor inconsistencies in the testimony of two prosecution witnesses didnot render their testimony incredible as a matter of law (see People v Smith, 73 AD3d1469, 1470 [2010], lv denied 15 NY3d 778 [2010]; People v McAvoy, 70 AD3d1467, 1468 [2010], lv denied 14 NY3d 890 [2010]). Viewing the evidencein light of the elements of the crimes as charged to the jury (see People v Danielson, 9NY3d 342, 349 [2007]), we conclude that "the jury was justified in finding. . . defendant guilty beyond a reasonable doubt" (id. at 348).
Defendant contends that the conviction of criminal contempt in the first degree mustbe reversed because she may have been convicted of an act for which she was notindicted (see generally People v McNab, 167 AD2d 858, 858 [1990]).Specifically, defendant contends that the grand jury may have indicted her based on herconduct toward one of the prosecution witnesses, rather than that witness's son. We rejectthat contention. Although the indictment did not name the victim, the order of protectionwas issued in favor of the son and not his mother, and the grand jury therefore could nothave indicted defendant for her conduct toward the mother.
Defendant failed to preserve for our review her contention that she was denied a fairtrial based on prosecutorial misconduct during summation (see People v Smith, 32 AD3d1291, 1292 [2006], lv denied 8 NY3d 849 [2007]). In any event, to theextent that the prosecutor's remarks were improper, we conclude that they were not sopervasive or egregious as to deprive defendant of a fair trial (see People v Heck, 103 AD3d1140, 1143 [2013], lv denied 21 NY3d 1074 [2013]). Defendant also failedto preserve for our review her contentions that County Court gave a misleading juryinstruction regarding a confession that was never made by defendant (see People v Long, 100 AD3d1343, 1345 [2012], lv denied 20 NY3d 1063 [2013]), and that the courterred in failing to give a missing witness charge (see People v Merrill, 60 AD3d 1376, 1376 [2009], lvdenied 12 NY3d 856 [2009]). We decline to exercise our power to review thosecontentions as a matter of discretion in the interest of justice (see CPL 470.15 [6][a]).
Defendant further contends that she was denied effective assistance of counsel basedon various errors made by defense counsel. We conclude that defendant failed to meether burden of demonstrating the absence of strategic or other legitimate explanations formany of defense counsel's alleged errors (see People v Benevento, 91 NY2d 708,712 [1998]). In addition, defendant was "not denied effective assistance of. . . counsel merely because counsel [failed to] make a motion or argumentthat ha[d] little or no chance of success" (People v Stultz, 2 NY3d 277, 287 [2004], reargdenied 3 NY3d 702 [2004]). Viewing the evidence, the law, and the circumstancesof this case in totality and as of the time of the representation, we conclude thatdefendant received effective assistance of counsel (see generally People v Baldi,54 NY2d 137, 147 [1981]).
In light of defendant's lengthy criminal history, we conclude that the sentence is notunduly harsh or severe. Defendant failed to preserve for our review her contention thatthe court erred in failing to take into account three days of jail time credit to which she isentitled in determining the duration of the order of protection, and we decline to exerciseour power to review that contention as a matter of discretion in the interest of justice (see People v Hoyt, 107 AD3d1426, 1426 [2013], lv denied 21 NY3d 1042 [2013]; People v Owens, 66 AD3d1428, 1428-1429 [2009], lv denied 14 NY3d 772 [2010]). We haveconsidered defendant's remaining contentions and conclude that they are without merit.Present—Centra, J.P., Fahey, Peradotto, Lindley and Valentino, JJ.