| People v Ubbink |
| 2014 NY Slip Op 06429 [120 AD3d 1574] |
| September 26, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vDaniel Ubbink, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Christine M. Cook of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Maria Maldonado of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered April 21, 2011. The judgment convicted defendant upon a jury verdict, ofcriminal contempt in the first degree, stalking in the third degree and resisting arrest.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by reducing the conviction of criminal contempt in the first degree (Penal Law§ 215.51 [b] [ii]) to criminal contempt in the second degree(§ 215.50 [3]) and vacating the sentence imposed on count one of theindictment and as modified the judgment is affirmed, and the matter is remitted toSupreme Court, Onondaga County, for sentencing on the conviction of criminalcontempt in the second degree.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, criminal contempt in the first degree (Penal Law§ 215.51 [b] [ii]) and stalking in the third degree (§ 120.50[4]). Contrary to the contention of the People, we conclude that defendant's challenge tothe legal sufficiency of the evidence with respect to those crimes is preserved for ourreview (see People v Payne,3 NY3d 266, 273 [2004]), and we further conclude that the evidence is legallyinsufficient to support the conviction of criminal contempt in the first degree (seegenerally People v Bleakley, 69 NY2d 490, 495 [1987]). The evidence presented attrial does not establish that defendant intentionally placed or attempted to place thevictim in reasonable fear of physical injury, "let alone 'serious physical injury ordeath' " (see People vDemisse, 24 AD3d 118, 119 [2005], lv denied 6 NY3d 833 [2006]).Defendant went to the victim's residence, but the evidence does not establish that hiswords or actions while he was there constituted an actual or implied threat of physicalharm to the victim. "While defendant should have known that the victim did not want tohave any contact with him and that the [visit] could well be upsetting to her, it does notnecessarily follow that defendant, when he made the [visit], intended to place the victimin reasonable fear for her physical safety. Without such evidence, the evidence is legallyinsufficient and his conviction for criminal contempt in the first degree cannot stand" (People v Brown, 61 AD3d1007, 1010 [2009]).
We further conclude, however, that there is legally sufficient evidence to sustain aconviction of the lesser included offense of criminal contempt in the second degree(Penal Law § 215.50 [3]) inasmuch as the evidence established that, despitehaving knowledge of the order of protection, defendant intentionally disobeyed it (seeBrown, 61 AD3d at 1010). We therefore modify the judgment by reducingdefendant's conviction of criminal contempt in the first degree to criminal contempt inthe second degree and vacating the sentence imposed on count one of the indictment(see CPL 470.15 [2] [a]), and we remit the matter to Supreme Court forsentencing on the conviction of criminal contempt in the second degree (see CPL470.20 [4]).
We reject defendant's contention that the evidence is not legally sufficient to supportthe conviction of stalking in the third degree. The evidence submitted in support of thatcrime "must [*2]be viewed in the context of the priorrelationship that existed between defendant and the victim" (Brown, 61 AD3d at1009). Here, defendant had been previously convicted of stalking as a result of hisfixation with the victim such that he "had to have known that any attempt on his part tocontact [her] would have no legitimate purpose and, at the very minimum, would serve toharass and annoy her[,] . . . [and that,] even absent some express threatdirected at her, she [would have] legitimate and well-founded fears for her physicalsafety" if he visited her residence (id.). Contrary to defendant's contention, wefurther conclude that the evidence established the necessary element of a course ofconduct, i.e., a series of acts "evidencing a continuity of purpose" (People vPayton, 161 Misc 2d 170, 174 [1994]), for stalking in the third degree. Thus,viewing the evidence in the light most favorable to the People, we conclude that theevidence demonstrates a valid line of reasoning and permissible inferences that couldlead a rational person to the conclusion reached by the jury with respect to that crime(see Bleakley, 69 NY2d at 495).
Finally, viewing the evidence in light of the elements of the crime of stalking in thethird degree as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), wereject defendant's further contention that the verdict is against the weight of the evidencewith respect to that crime (see generally Bleakley, 69 NY2d at 495).Present—Centra, J.P., Carni, Valentino and Whalen, JJ.