| People v Dixon |
| 2014 NY Slip Op 04530 [118 AD3d 1188] |
| June 19, 2014 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vJason Dixon, Appellant. |
Andrew Kossover, Public Defender, Kingston (Michael K. Gould of counsel), forappellant.
D. Holley Carnright, District Attorney, Kingston (Joan Gudesblatt Lamb of counsel),for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Ulster County(Williams, J.), rendered April 3, 2012, upon a verdict convicting defendant of the crimeof criminal contempt in the first degree.
Police officers arrested defendant based upon a report by the victim that he assaultedher at their residence. During his arraignment, City Court issued and had defendantserved with an order of protection prohibiting him from having any contact with thevictim or going to her residence. Later that day, police received another call from thevictim's residence regarding a second incident and, in responding to that call, founddefendant standing in a parking lot adjacent to her residence. Defendant wassubsequently charged with strangulation in the second degree and assault in the seconddegree (two counts) with respect to the first report and criminal contempt in the firstdegree with respect to the later report. Following a trial, the jury convicted defendant ofcriminal contempt in the first degree and acquitted him of the other counts. County Courtsentenced defendant, as a second felony offender, to a term of 2 to 4 years in prison.Defendant appeals.
The verdict convicting defendant of criminal contempt in the first degree was notagainst the weight of the evidence. The People were required to prove that defendant"ha[d] [*2]actual knowledge [of an order of protection]because he . . . was present in court when such order was issued" and that,in violation of that order, defendant, "with intent to harass, annoy, threaten or alarm [thevictim], str[uck], shove[d], kick[ed] or otherwise subject[ed the victim] to physicalcontact or attempt[ed] or threaten[ed] to do the same" (Penal Law § 215.51[b] [v]). A police officer testified that City Court informed defendant that he was not tohave contact with the victim and that he was not to go to her residence, except whileaccompanied by law enforcement and for the limited purpose of retrieving his property.The officer also testified that defendant signed the order of protection and was servedwith a copy of it, as well as a notice of property retrieval, both of which containedlanguage consistent with the court's instructions. A second police officer testified that sheseparately explained to defendant that he would need police assistance if he wished toretrieve his property from the victim's residence and that he indicated that he understoodthis requirement. The victim and her friend both testified that, later that day, defendantreturned to and entered the victim's residence. The friend also testified that, afterdefendant's arrival and while he was arguing with the victim, defendant "cocked his armback," prompting the friend to physically intervene and, with the help of the victim, pushdefendant out of the residence. Giving deference to the jury's credibility determinationsthat defendant was informed of the order of protection while in court, that he proceededto violate the order by having contact with the victim and entering her home withoutpolice accompaniment, and that he either attempted to or threatened to strike the victim,we find that the weight of the evidence supports the conviction (see People v Audi, 88 AD3d1070, 1072-1073 [2011], lv denied 18 NY3d 856 [2011]; People v McCowan, 45 AD3d888, 889-890 [2007], lv denied 9 NY3d 1007 [2007]).
Defendant's additional contention that he was improperly sentenced as a secondfelony offender is not preserved for this Court's review due to his failure to object in thisregard at sentencing (see Peoplev Gathers, 106 AD3d 1333, 1333-1334 [2013], lv denied 21 NY3d 1073[2013]; People v Walton,101 AD3d 1489, 1490 [2012], lv denied 20 NY3d 1105 [2013]; see generally People v Nieves,2 NY3d 310, 315-316 [2004]). In any event, a predicate felony statement wasprovided to defendant prior to sentencing, he admitted that he had been convicted of theprior felony and he declined the opportunity to controvert any aspect of the priorconviction. Contrary to defendant's contention, "County Court was not obligated toexpressly advise defendant of his right to contest the constitutionality of the priorconviction" (People v Smith, 121 AD2d 771, 772 [1986] [citations omitted]; accord People v Wood, 108AD3d 932, 932-933 [2013]). Under these circumstances, the court substantiallycomplied with CPL 400.21 (3) (see People v Wood, 108 AD3d at 933; Peoplev Gathers, 106 AD3d at 1334).
Lahtinen, J.P., Rose, Egan Jr. and Lynch, JJ., concur. Ordered that the judgment isaffirmed.