| People v Heiserman |
| 2015 NY Slip Op 03203 [127 AD3d 1422] |
| April 16, 2015 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Frederick D. Heiserman, Appellant. |
Cheryl L. Sovern, Clifton Park, for appellant.
Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas J. Evanovich of counsel),for respondent.
McCarthy, J. Appeal from a judgment of the County Court of Franklin County (MainJr., J.), rendered June 23, 2013, upon a verdict convicting defendant of the crime ofcriminal contempt in the first degree.
Amber Montour observed defendant in the front passenger seat of a vehicle drivenby the mother of defendant's infant son (hereinafter the mother). At that time, a stay-awayorder of protection was in place prohibiting defendant from having any contact with themother, which had been entered by County Court upon his prior conviction of criminalcontempt in the second degree. Montour, who knew the vehicle occupants and was awareof the order of protection, contacted the police. A police officer stopped the vehicle, thendriven by the mother's brother, who indicated that he had dropped off the mother atschool, and arrested defendant, a passenger in the vehicle.
At trial, the parties stipulated to the terms of the order of protection and thatdefendant had a prior criminal contempt conviction. Montour testified that as she drovepast the distinct vehicle driven by the mother, with which she was familiar, she saw theoccupants from a "few feet" away and made eye contact with defendant. The mothertestified, under subpoena, acknowledging that she was aware of the terms of the order ofprotection but wanted to see defendant that day and still loved him. She explained thatshe left home for school with her brother in the distinct car and picked up defendant;defendant sat in the front passenger seat, and [*2]she hada discussion with him regarding their child. She recounted that defendant got into hervehicle willingly, remained for 10 to 15 minutes and never asked to get out. Upon hisconviction of criminal contempt in the first degree, County Court sentenced defendant, asa second felony offender, to 2 to 4 years in prison. Defendant appeals.
Defendant challenges County Court's trial ruling regarding his postarrest remarks topolice. This argument centers on the court's ruling permitting a police officer to recountthe substance of defendant's postarrest statements over his objection that the prejudicialeffect of this evidence outweighed its probative value. Specifically, the officer testifiedthat, after defendant was taken to the police station, he stated to an officer, "You're anightmare. You were after me. You're doing this to me. You're harassing me, youf*cking b*tch."
While relevant evidence is generally admissible unless it violates an exclusionaryrule, "relevant evidence . . . may still be excluded by the trial court in theexercise of its discretion if its probative value is substantially outweighed by the dangerthat it will unfairly prejudice the other side or mislead the jury" (People vScarola, 71 NY2d 769, 777 [1988]; see People v Caruso, 6 AD3d 980, 984-985 [2004], lvdenied 3 NY3d 704 [2004]). However, evidence is relevant only "if it tends to provethe existence or non-existence of a material fact, i.e., a fact directly at issue in the case"(People v Primo, 96 NY2d 351, 355 [2001]; see People v Mateo, 2 NY3d383, 424 [2004], cert denied 542 US 946 [2004]), and "[e]vidence of merelyslight, remote or conjectural significance will ordinarily be insufficiently probative tooutweigh [the] countervailing risks [of prejudice]" (People v Primo, 96 NY2d at355 [internal quotation marks and citations omitted]).
Here, the People were required to prove that defendant intentionally disobeyed anorder of protection that was "duly served" or of which he had "actual knowledge"because he was present in court when the order was issued, that the order required him tostay away from the protected party, and that he had been convicted of criminal contemptin the first or second degree in the prior five years (Penal Law § 215.51 [c];see Penal Law § 215.50 [3]). The only disputed issues at trial werewhether defendant had violated the order of protection and had done so intentionally.Defendant's remarks to the police officer were directed at the officer's motives andconduct and reflected defendant's disdain for her or the police, which were not relevantto or probative of any element of the charged crime or any material fact in issue (compare People v Austin, 115AD3d 1063, 1065 [2014], lv denied 23 NY3d 960 [2014]). The remarks donot suggest a motive for defendant's violation of the order of protection and did notconstitute an admission by defendant that he had intentionally violated the order ofprotection. Thus, as defendant's statements are not relevant to or probative of his motiveor any disputed fact or element of the crime charged, they should not have been admittedinto evidence. However, given the overwhelming evidence of defendant'sguilt—including his stipulation that the order of protection was in place,Montour's testimony placing defendant in the vehicle with the mother and the mother'stestimony that they voluntarily remained together in the vehicle for 10 to 15minutes—there is no "significant probability" that he would have been acquittedhad it not been for the admission of his postarrest statements (People v Crimmins,36 NY2d 230, 241-242 [1975]; see People v Byer, 21 NY3d 887, 889 [2013]).
We are unpersuaded by defendant's further contention that the prosecutor's referencesin summation to Montour's lack of a motive to testify against defendant were improperand referred to facts not in evidence. While defense counsel's cross-examination ofMontour did not directly address her motives for testifying, it did question her credibilityand ability to observe the incident. In his opening statement, defense counsel referredgenerally to witness "biases" and asserted, among other things, that "[p]eople sometimesmake things up because they have reasons [*3]to makethings up." Where, as here, defense counsel attacks the credibility and alludes to themotives and biases of prosecution witnesses, the prosecutor is entitled in summation tofairly respond and argue that the witness is not biased and had no motive to lie (see People v Marcus, 112AD3d 652, 653 [2013], lv denied 22 NY3d 1140 [2014]; People v Barber, 13 AD3d898, 900 [2004], lv denied 4 NY3d 796 [2005]; People v Alexander,255 AD2d 708, 710 [1998], lv denied 93 NY2d 897 [1999]; see generallyPeople v Halm, 81 NY2d 819, 821 [1993]). Viewing the prosecutor's remarks in thecontext of the trial and summations as a whole, defendant was not deprived of a fair trial.Even if the prosecutor's remarks were not a fair comment on the evidence or a measuredresponse to defense counsel's arguments, they "did not rise to the flagrant and pervasivelevel of misconduct which would deprive defendant of due process" or a fair trial (People v Robinson, 16 AD3d768, 770 [2005], lv denied 4 NY3d 856 [2005]).
Finally, defendant's contention that County Court's charge was inadequate was notpreserved for appellate review, as he did not make a request for a particular charge onintent and did not object to the charge as given (see CPL 470.05 [2]; People v Green, 119 AD3d23, 30 [2014], lv denied 23 NY3d 1062 [2014]). In any event, as CountyCourt closely followed the model jury charge, explaining clearly that intent means"conscious objective or purpose" (see CJI2d[NY] Penal Law§ 215.51 [c]), no corrective action is warranted in the interest of justice(see CPL 470.15 [6] [a]).
Peters, P.J., Rose and Clark, JJ., concur. Ordered that the judgment is affirmed.