| People v Young |
| 2016 NY Slip Op 05395 [141 AD3d 551] |
| July 6, 2016 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Scott Young, Appellant. |
Lynn W. L. Fahey, New York, NY (Jonathan M. Kratter of counsel), forappellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and DianeR. Eisner of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Kings County(Leventhal, J.), rendered November 13, 2007, convicting him of stalking in the thirddegree, criminal contempt in the first degree (22 counts), stalking in the second degree,criminal possession of a weapon in the fourth degree, menacing in the second degree,criminal trespass in the second degree, endangering the welfare of a child, aggravatedharassment in the second degree (two counts), and criminal mischief in the third degree(two counts), upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the convictions ofcriminal contempt in the first degree under counts 4, 5, 6, 7, 8, 9, 10 and 11 of theindictment, vacating the sentences imposed thereon, and dismissing those counts of theindictment; as so modified, the judgment is affirmed.
The defendant's challenges to the prosecutor's remarks during her opening statementand summation are unpreserved for appellate review, since he either failed to object tothe remarks at issue, or made only general objections and failed to request furthercurative relief when his objections were sustained (see CPL 470.05 [2]; People v Romero, 7 NY3d911, 912 [2006]). In any event, the defendant's contention is without merit, as thechallenged remarks were either within the broad bounds of permissible rhetoricalcomment, fair comment on the evidence and the reasonable inferences to be drawntherefrom, or responsive to arguments presented in the defense summation (see People v Blue, 136 AD3d840, 840 [2016]; People vBarber, 133 AD3d 868, 871 [2015]; People v Lenihan, 125 AD3d 788, 789 [2015]; People v Williams, 123 AD3d1152, 1153 [2014]). Contrary to the defendant's contention, the prosecutor askingthe jury to "send this defendant a message that he cannot ignore and find him guilty of allcounts," did not constitute a "safe streets" argument (see People v Caba, 101 AD3d 896, 896 [2012]; People v Ramos, 92 AD3d445, 446 [2012]; People vLopez, 69 AD3d 958, 958 [2010]; People v Clark, 52 AD3d 860, 863 [2008]). In addition, theprosecutor's remarks in summation could not have been interpreted by the jury as aninstruction on the law, since the prosecutor had previously stated that the court wouldinstruct them on the law, and because the court repeatedly advised the jurors that it wouldinstruct them on the law (seePeople v Din, 62 AD3d 1023, 1024 [2009]; People v Giuca, 58 AD3d 750, 751 [2009]; People v Delphin, 26 AD3d343, 343 [2006]; People v Rosenblitt, 198 AD2d 382, 383[1993]).
[*2] The defendant's contention thathis convictions of criminal contempt in the first degree under Penal Law§ 215.51 (b) (iii) were not supported by legally sufficient evidence isunpreserved for appellate review (see CPL 470.05 [2]; People v Hawkins, 11 NY3d484, 492 [2008]). In any event, viewing the evidence in the light most favorable tothe prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), we find that itwas legally sufficient to establish the defendant's guilt of those crimes beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independentreview of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d342, 348-349 [2007]), we accord great deference to the factfinder's opportunity toview the witnesses, hear the testimony, and observe demeanor (see People vMateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495[1987]). Upon reviewing the record here, we find that the verdict of guilt of those crimeswas not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]). The criminalcontempt convictions were based on letters the defendant sent from prison to the victim.Although most of those letters did not contain explicit threats, the inherent menace in theletters becomes apparent when viewed in the broader context of the proof in this case (see People v Clark, 65 AD3d755, 758 [2009]; People vMcCowan, 45 AD3d 888, 889 [2007]). In particular, the evidence presented attrial established that the defendant repeatedly harassed and threatened the victimfollowing their breakup, and, on one occasion, held a knife to her throat and threatenedto kill her. Based on the foregoing, the jury's conclusion that the defendant intended toplace the victim "in reasonable fear of physical injury, serious physical injury or death"(Penal Law § 215.51 [b] [iii]) was not against the weight of the evidence(see People v Roblee, 122AD3d 1261, 1262-1263 [2014]; People v Clark, 65 AD3d at 758; Peoplev McCowan, 45 AD3d at 889; People v Tomasky, 36 AD3d 1025, 1026 [2007]).
Contrary to the People's contention, the defendant preserved for appellate review hisassertion that eight of the nine counts charging him with criminal contempt in the firstdegree under Penal Law § 215.51 (b) (iv) were multiplicitous (see People v Jagdharry, 118AD3d 722, 723 [2014]). An indictment is multiplicitous " 'when a singleoffense is charged in more than one count' " (People v Barber, 133 AD3dat 869, quoting People vAlonzo, 16 NY3d 267, 269 [2011]). In addition, "[a]n indictment cannot chargea defendant with more than one count of a crime that can be characterized as acontinuing offense unless there has been an interruption in the course of conduct" (People v Quinones, 8 AD3d589, 589-590 [2004]; seePeople v Hoffman, 130 AD3d 1152, 1153 [2015]; People v Atta, 126 AD3d713, 715-716 [2015]). Here, counts 4, 5, 6, 7, 8, 9, 10 and 11 of the indictment aremultiplicitous of count three since those counts allege a continuous offense consisting ofthe defendant's repeated telephone calls, over a nine-month period, with the intent toharass, annoy, threaten, or alarm the victim (see Penal Law § 215.51[b] [iv]). The dates used by the prosecution to divide the counts did not establish thatthere was an interruption in the course of conduct (see People v Beltran, 110 AD3d 153, 163 [2013];People v Quinones, 8 AD3d at 590). Although the People are correct thatdismissal of the multiplicitous counts would have no effect on the length of thedefendant's incarceration since the defendant received concurrent sentences on the countsat issue, those convictions were " 'an impermissible punishment' " (People v Campbell, 120 AD3d827, 828 [2014], quoting Ball v United States, 470 US 856, 865 [1985]), andtherefore, must be vacated.
Finally, the sentence imposed was not excessive (see People v Suitte, 90AD2d 80 [1982]). Balkin, J.P., Miller, Hinds-Radix and Brathwaite Nelson, JJ.,concur.