| People v Roblee |
| 2014 NY Slip Op 07791 [122 AD3d 1261] |
| November 14, 2014 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJon N. Roblee, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Alan Williams of counsel), fordefendant-appellant.
Jon N. Roblee, defendant-appellant pro se.
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 February 28, 2013. The judgment convicted defendant, upon a jury verdict, ofcriminal contempt in the first degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of criminal contempt in the first degree (Penal Law § 215.51 [b][iii]). The charge stems from defendant's violation of an order of protection in favor ofthe victim. As a preliminary matter, we reject defendant's contention that County Courterred in admitting evidence of an incident of domestic violence that occurred onFebruary 26, 2009. According to defendant, such evidence went beyond the scope of thePeople's pretrial notice. Defendant's contention is without merit inasmuch as the People'spretrial notice concerned evidence of defendant's intent and the victim's reasonable fearunder a Molineux theory (see People v Small, 12 NY3d 732, 733 [2009]; People vTorres, 300 AD2d 46, 46-47 [2002], lv denied 99 NY2d 633 [2003];cf. CPL 240.43). We therefore have considered that evidence as part of ouranalysis of the legal sufficiency and weight of the evidence.
We reject defendant's contention in his main and pro se supplemental briefs that theconviction is not supported by legally sufficient evidence. Initially, we note thatdefendant's contention is preserved only to the extent that he challenged in his motion fora trial order of dismissal the sufficiency of the evidence with respect to his intent to putthe victim in reasonable fear of "physical injury, serious physical injury, or death" (PenalLaw § 215.51 [b] [iii]; see People v Gray, 86 NY2d 10, 19 [1995]).We decline to exercise our power to review defendant's other legal insufficiency claimsas a matter of discretion in the interest of justice (see CPL 470.15 [6] [a]). Withrespect to the element of intent, it is well established that "[i]ntent may be inferred fromconduct as well as the surrounding circumstances" (People v Steinberg, 79 NY2d673, 682 [1992]; see also Peoplev Kelly, 79 AD3d 1642, 1642 [2010], lv denied 16 NY3d 832 [2011]).Here, we conclude that there is a "valid line of reasoning and permissible inferences"from which the jury reasonably could have concluded that defendant had the requisiteintent to commit the crime charged (People v Bleakley, 69 NY2d 490, 495[1987]; see People vTomasky, 36 AD3d 1025, 1026 [2007], lv denied 8 NY3d 927 [2007]).The record establishes that, during the long history between the defendant and victim,defendant has made violent threats against the victim on more than one occasion andeven has thrown a knife at her during one of their altercations. Taking into account thecircumstances surrounding the crime—defendant told the victim over thetelephone that he was going to "get" her and another individual "if it takes the rest of mylife"—we further conclude that the evidence is legally sufficient to establish thatdefendant intended to place the victim "in reasonable fear of physical injury, seriousphysical injury or death" (Penal Law § 215.51 [b] [iii]; seeTomasky, 36 AD3d at 1026).
Furthermore, viewing the evidence in light of the elements of the crime as charged tothe jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict is not againstthe weight of the evidence (see generally Bleakley, 69 NY2d at 495)."[R]esolution of issues of credibility, as well as the weight to be accorded to the evidencepresented, are primarily questions to be determined by the jury" (People v Witherspoon, 66AD3d 1456, 1457 [2009], lv denied 13 NY3d 942 [2010] [internal quotationmarks omitted]) and, here, we see no reason to disturb the jury's resolution of thoseissues. Contrary to defendant's contention, the fact that the victim's testimony regardingthe crime herein varied slightly from her statement to the police does not make hertestimony incredible as a matter of law (see People v Ford, 114 AD3d 1273, 1275 [2014], lvdenied 23 NY3d 962 [2014]).
Defendant contends that the indictment should be dismissed because the grand juryinstructions were improper or incomplete, an insufficient number of grand jurors heardthe evidence presented, and an insufficient number of grand jurors voted to indict. Thosecontentions are not reviewable by this Court inasmuch as defendant has failed to provideus with the entire record of the grand jury proceedings (see People v Hawkins, 113AD3d 1123, 1125 [2014], lv denied 22 NY3d 1156 [2014]; People v Dilbert, 1 AD3d967, 967-968 [2003], lv denied 1 NY3d 626 [2004]).
We reject defendant's further contention that the court failed to comply with its coreresponsibilities under CPL 310.30 by not giving defense counsel meaningful notice ofthe crossed-out portion of a jury note. On the jury note, the words "Grand Jury testimonyand" were crossed out by three lines. Contrary to the People's position, we conclude thatdefendant was not required to preserve his contention inasmuch as there is no evidence inthe record that defense counsel was made aware of the crossed-out portion of the note(see People v Kalinowski,84 AD3d 1739, 1740 [2011]; see also People v Walston, 23 NY3d 986, 989-990 [2014]).We nevertheless conclude that the court provided defense counsel with "meaningfulnotice . . . of the specific content of the jurors' request" (see People v Alcide, 21 NY3d687, 692 [2013] [emphasis added]), and we further conclude that the crossed-outportion of the note cannot be characterized as part of that request.
Defendant further contends that he was deprived of a fair trial by prosecutorialmisconduct based on statements, comments, and objections during voir dire, openingstatements, and summations. Defendant's contention is preserved for our review only inpart inasmuch as he failed to object to several of the prosecutor's alleged improprieties(see People v Jones, 114AD3d 1239, 1241 [2014], lv denied 23 NY3d 1038 [2014]). To the extentthat defendant's contention is preserved, we conclude that it lacks merit. "Reversal basedon prosecutorial misconduct is 'mandated only when the conduct [complained of] hascaused such substantial prejudice to the defendant that he has been denied due process oflaw' " (People vJacobson, 60 AD3d 1326, 1328 [2009], lv denied 12 NY3d 916 [2009])and, here, " '[a]ny improprieties were not so pervasive or egregious as to deprivedefendant of a fair trial' " (Jones, 114 AD3d at 1241; see People v Stanley, 108AD3d 1129, 1131 [2013], lv denied 22 NY3d 959 [2013]; People v Ward, 107 AD3d1605, 1606-1607 [2013], lv denied 21 NY3d 1078 [2013]).
Defendant contends that it was unnecessary for the court to charge the jury withrespect to admissions inasmuch as there were no admissions in the case, but we note thatdefendant failed to preserve that contention for our review (see generally CPL470.05 [2]; People vWilliams, 118 AD3d 1295, 1297 [2014]). In any event, the contention lacksmerit inasmuch as the court's charge on admissions was accurate, itself, and also fitwithin the greater context of the general evidentiary standards that the court wasconveying to the jury (seegenerally People v McCallum, 96 AD3d 1638, 1639 [2012], lv denied19 NY3d 1103 [2012]), and we therefore conclude that the charge could not have led tojury confusion (see generally People v Bridenbaker, 266 AD2d 875, 875 [1999],lv denied 94 NY2d 917 [2000]). Defendant concedes that his contentionregarding the court's alleged failure to instruct the jury on how to evaluate certaintestimony regarding an altercation between defendant and the victim's husband inFebruary or March 2011 is not preserved for our review (see generally People v Madera,103 AD3d 1197, 1199 [2013], lv denied 21 NY3d 1006 [2013]), and wedecline to exercise our power to review that contention as a matter of discretion in theinterest of justice.
We reject defendant's further contention in his main and pro se supplemental briefsthat he was denied effective assistance of counsel, which is premised on defendant'sclaims that counsel allegedly failed to make certain motions or arguments. We conclude,however, that such motions or arguments would not have been successful, and it is wellsettled that a defendant "is not denied effective assistance of trial counsel merely becausecounsel does not make a motion or argument that has little or no chance of success" (People v Stultz, 2 NY3d277, 287 [2004], rearg denied 3 NY3d 702 [2004]).
Defendant's contention that the court failed to substitute counsel in a timely fashionis also without merit. At a court appearance on August 28, 2012, the purpose of whichwas to afford the parties an opportunity to address defendant's refusal to undergo arequired CPL article 730 psychiatric examination, defendant told the court that he had"fired" his first attorney, and he stated that he wanted new counsel. Given defendant'srefusal and the timing of his request for new counsel, we conclude that the court did noterr in adjourning the proceeding for two months, ordering defendant to undergo twopsychiatric examinations during that time, and reviewing the results of those psychiatricexaminations before determining at the next court appearance that the appointment ofnew counsel was appropriate (see People v Linares, 2 NY3d 507, 511 [2004]).
Contrary to defendant's further contention, the court did not err in designating thevictim's husband—a member of the victim's household and a witness todefendant's behavior towards the victim—an appropriate person to be covered byan order of protection (see CPL 530.12 [5]; see generally People v Konieczny, 2 NY3d 569, 572[2004]).
Finally, the sentence is not unduly harsh or severe. Present—Smith, J.P.,Fahey, Lindley, Valentino and DeJoseph, JJ.