| People v James |
| 2016 NY Slip Op 00212 [135 AD3d 787] |
| January 13, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Travis James, Appellant. |
Robert C. Mitchell, Riverhead, NY (Louis E. Mazzola of counsel), forappellant.
Thomas J. Spota, District Attorney, Riverhead, NY (Grazia DiVincenzo of counsel),for respondent.
Appeal by the defendant from a judgment of the County Court, Suffolk County(Condon, J.), rendered January 6, 2014, convicting him of aggravated criminal contempt(two counts), criminal contempt in the first degree (four counts), criminal contempt in thesecond degree (three counts), criminal obstruction of breathing or blood circulation, andharassment in the second degree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, as a matter of discretion in the interest ofjustice, by vacating the conviction of aggravated criminal contempt under count one ofthe indictment, vacating the sentence imposed thereon, and dismissing that count of theindictment; as so modified, the judgment is affirmed.
The defendant's contention that the evidence was legally insufficient to support hisconvictions of aggravated criminal contempt, criminal contempt in the first degree, andcriminal contempt in the second degree, on the ground that the People failed to prove,beyond a reasonable doubt, that he had actual knowledge of the contents of the subjectorder of protection, is unpreserved for appellate review, as defense counsel made only ageneral motion to dismiss at the close of the People's case (see CPL 470.05 [2];People v Hawkins, 11NY3d 484, 491-492 [2008]). In any event, this contention is without merit, as theevidence established that the defendant was present at the proceeding where the order ofprotection was issued, his attention was drawn to the issuance of the order by the court,and a copy of the order was provided to him. Based on this evidence, the trier of factcould have reasonably inferred the defendant's actual knowledge of the existence of theorder of protection and its contents (see People v Clark, 95 NY2d 773, 775[2000]; People v Aveni, 100AD3d 228, 241 [2012]).
The defendant's contention that the evidence was legally insufficient to support hisconviction of aggravated criminal contempt with respect to the necessary element of"physical injury," as charged in count one of the indictment (see Penal Law§ 215.52 [1]), is unpreserved for appellate review (see CPL 470.05[2]; People v Hawkins, 11 NY3d at 491-492). Nonetheless, we reach the issue inthe exercise of our interest of justice jurisdiction (see CPL 470.15 [3] [c]). Countone of the indictment charged the defendant with committing aggravated criminalcontempt pursuant [*2]to Penal Law§ 215.52 (1). In pertinent part, Penal Law § 215.52 (1)provides that a person is guilty of aggravated criminal contempt when, in violation of aduly served order of protection, he or she "intentionally or recklessly causes physicalinjury . . . to a person for whose protection such order was issued." Asrelevant here, physical injury consists of "substantial pain" (Penal Law§ 10.00 [9]), meaning pain that is "more than slight or trivial. . . [but] need not . . . be severe or intense" (People v Chiddick, 8 NY3d445, 447 [2007]). Here, the evidence was legally insufficient to establish that thecomplainant, for whose protection the subject order of protection was issued, sufferedsubstantial pain. Accordingly, the defendant's conviction of aggravated criminalcontempt under count one of the indictment must be vacated, and that count of theindictment must be dismissed.
Upon the exercise of our independent factual review power pursuant to CPL 470.15(5), we are satisfied that the verdict of guilt on the count of aggravated criminal contemptunder count 11 of the indictment, as well as all counts of criminal contempt in the firstdegree and criminal contempt in the second degree, was not against the weight of theevidence (see People vRomero, 7 NY3d 633 [2006]).
The sentences imposed upon the convictions of aggravated criminal contempt undercount 11 of the indictment and all convictions of criminal contempt in the first degree,criminal contempt in the second degree, criminal obstruction of breathing or bloodcirculation, and harassment in the second degree, were not excessive (see People vSuitte, 90 AD2d 80 [1982]). Balkin, J.P., Hall, Cohen and Hinds-Radix, JJ.,concur.