| People v Delaney |
| 2016 NY Slip Op 03307 [138 AD3d 1420] |
| April 29, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vSean Delaney, Also Known as Sean M. Delaney, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Kimberly F. Duguay of counsel),for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.),rendered October 9, 2012. The judgment convicted defendant, upon a jury verdict, ofaggravated criminal contempt.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a jury trial ofaggravated criminal contempt (Penal Law § 215.52 [1]), defendantcontends that County Court abused its discretion in permitting the victim to testify that anorder of protection was issued on her behalf, following an incident in which defendantpunched through a window in her vehicle. According to defendant, the prejudicial effectof the testimony outweighed its probative value. Defendant failed to preserve thatcontention for our review (see CPL 470.05 [2]; People v Laracuente, 21 AD3d1389, 1390 [2005], lv denied 6 NY3d 777 [2006]). In any event, defendant'scontention is without merit. The evidence was relevant as "background material to enablethe jury to understand the defendant's relationship with the [victim] and to explain theissuance of an order of protection" (People v Walters, 127 AD3d 889, 889 [2015], lvdenied 25 NY3d 1209 [2015]).
We reject defendant's further contention that the conviction is not supported bylegally sufficient evidence with respect to the element of physical injury, i.e.,"impairment of physical condition or substantial pain" (Penal Law § 10.00[9]). The victim, who was just over five feet, testified that defendant, who was over sixfeet, knocked her head into a wall, causing several large "very painful" lumps to form onher head to the right of the crown; that he wrapped his hands around her neck and liftedher; that he threw her to the floor, sat on top of her and forced his fingers into her mouth,causing pain in three of her lower teeth; and that he kicked her. The victim testified thatshe had abrasions on her lip; that her lower teeth moved when she pushed them and werestill loose at the time of trial; and that she had bruising on her neck, knees and ankles.She described the pain level as a "4" for her arms; a "4 to 6" for her legs; a "9" for herneck and back; and a "5 to 6" for her mouth generally, but a "9" when she ate. The victimaltered her diet for approximately one month because of the pain. She sought medicaltreatment the day after the incident and was prescribed, inter alia, pain medication.Viewing the evidence in the light most favorable to the People, as we must (see People v Gordon, 23 NY3d643, 649 [2014]), we conclude that the evidence is legally sufficient to establish thatthe injuries caused the victim substantial pain (see People v Chiddick, 8 NY3d 445, 447-448 [2007]; People v Stillwagon, 101AD3d 1629, 1630 [2012], lv denied 21 NY3d 1020 [2013]; cf. People v Haynes, 104AD3d 1142, 1142-1144 [2013], lv denied 22 NY3d 1156 [2014]).
Defendant further contends that the verdict is against the weight of the evidence withrespect to the element of physical injury. Even assuming, arguendo, that a differentverdict would not have been unreasonable based upon the acquittal of defendant withrespect to the other [*2]counts charged in the indictment(see generally People v Bleakley, 69 NY2d 490, 495 [1987]), we rejectdefendant's contention. Viewing the evidence in light of the elements of the crime ascharged to the jury (see People vDanielson, 9 NY3d 342, 349 [2007]), we conclude that there is no basis uponwhich to determine that the jury failed to give the evidence the weight it should beaccorded (see Bleakley, 69 NY2d at 495; cf. People v Cooney, 137 AD3d 1665, 1668 [2016]).Present—Whalen, P.J., Peradotto, Lindley, NeMoyer and Scudder, JJ.