| People v Creech |
| 2018 NY Slip Op 07201 [165 AD3d 1491] |
| October 25, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v William H. Creech, Appellant. |
Brian M. Quinn, Albany, for appellant.
Karen A. Heggen, District Attorney, Ballston Spa (Gordon W. Eddy of counsel), forrespondent.
Lynch, J. Appeal from a judgment of the County Court of Saratoga County (Murphy III, J.),rendered May 24, 2016, upon a verdict convicting defendant of the crimes of criminal contemptin the second degree, harassment in the first degree and reckless driving.
In April 2015, defendant was arrested for allegedly violating an order of protection in favorof his wife (hereinafter the victim) when he drove his vehicle in a menacing manner near thevehicle that she was driving. Following a jury trial, defendant was convicted of criminalcontempt in the second degree, harassment in the first degree and reckless driving. County Courtimposed a split sentence of time served and three years of probation for his conviction ofcriminal contempt in the second degree and unconditional discharges on his convictions ofharassment in the first degree and reckless driving. County Court also issued full stay-away andno contact orders of protection in favor of the victim and defendant's three children. Defendantnow appeals.
Defendant argues that the verdict was against the weight of the evidence. When undertakinga weight of the evidence review, we must "first determine whether, based on all the credibleevidence, a different finding would not have been unreasonable and then weigh the relativeprobative force of conflicting testimony and the relative strength of conflicting inferences thatmay be drawn from the testimony to determine if the verdict is supported by the weight of theevidence" (People v Cole, 162AD3d 1219, 1223 [2018] [internal quotation marks and citations omitted]). Whenconducting this review, we consider the evidence in a neutral light and defer to the jury'scredibility assessments (see People v Bleakley, 69 NY2d 490, 495 [1987]; People v Cortese, 79 AD3d 1281,1282-1283 [2010], lv denied 16 NY3d 857 [2011]).
To convict defendant of criminal contempt in the second degree, the People were required toprove that defendant intentionally disobeyed or resisted the lawful process or a mandate of acourt that did not involve or grow out of a labor dispute (see Penal Law§ 215.50[*2][3]). To secure a conviction ofharassment in the first degree, the People were required to prove that defendant "intentionallyand repeatedly harasse[d] another person by following such person in or about a public place orplaces or by engaging in a course of conduct or by repeatedly committing acts which place[d]such person in reasonable fear of physical injury" (Penal Law § 240.25). Aconviction for reckless driving requires proof that defendant drove a motor vehicle "in a manner[that] unreasonably interfere[d] with the free and proper use of the public highway, orunreasonably endanger[ed] users of the public highway" (Vehicle and Traffic Law§ 1212).
The evidence at trial established that there was an order of protection issued in January 2013,which remained in effect at the time of the April 2015 incident, that required defendant to refrainfrom, among other things, harassing, intimidating, threatening or committing any criminaloffense against the victim. The testimony at trial by the victim, her daughter and the victim'sboyfriend was that, while the victim was driving, defendant followed closely behind andrepeatedly swerved to both the passenger and driver sides of the victim's car on two separateoccasions during the same day. All three witnesses testified that they were afraid and believedthat defendant's conduct would cause an accident. A police officer testified that the area wherethe witnesses alleged this occurred was heavily trafficked. The victim explained that her fear wasenhanced because defendant had been aggressive and abusive in the past. Although defendant didnot testify, there was testimony that, when asked, he explained that he was simply trying to passthe victim because he was afraid that she would claim that he was following her.
In our view, an acquittal would not have been unreasonable because the jury could havecredited the evidence of defendant's explanation and, as defendant argues, discredited certaininconsistent testimony given by the victim, her boyfriend and her daughter. These inconsistencieswere, however, fully explored during the trial (see People v Richardson, 155 AD3d 1099, 1103 [2017]). When weview the evidence in a neutral light, we find that a rational jury could conclude, based ondefendant's conduct, that he intentionally violated the order of protection by driving so closelyand aggressively near the victim's vehicle on a heavily trafficked road thus constituting criminalcontempt in the second degree (see People v Richardson, 155 AD3d at 1102-1103;People v Cortese, 79 AD3d at 1283). Similarly, and with the requisite deference to thejury's credibility assessments, we are satisfied that the verdict for harassment in the first degreeand for reckless driving was not against the weight of the evidence.
Defendant also challenges County Court's sentencing determination. The maximum term ofincarceration that can be imposed for criminal contempt in the second degree—a class Amisdemeanor—is one year (see Penal Law § 70.15 [1]). The courtwas permitted to impose a split sentence of up to 60 days in jail in addition to a term of probationfor a misdemeanor, provided that, together, the term did not exceed the authorized term ofprobation (see Penal Law § 60.01 [2] [d]; People v Cortese, 79AD3d at 1284). Here, such authorized probation term was three years (see Penal Law§ 65.00 [3] [b] [i]). Although defendant had been in custody for more than 60 daysat sentencing, the court was authorized to impose the split sentence of "time-served" in additionto the term of probation (see People v Cortese, 79 AD3d at 1284; People vMarinaccio, 297 AD2d 754, 755 [2002], lv denied 99 NY2d 560 [2002]). The Peoplecorrectly concede, however, that defendant was entitled to a credit of 60 days against thethree-year term of probation (see Peoplev Zephrin, 14 NY3d 296, 301 [2010]; People v Cortese, 79 AD3d at 1284 n).Defendant's equal protection challenge to the sentence was not preserved for review (see People v Brewster, 161 AD3d1309, 1310 [2018]; People vCesar, 131 AD3d 223, 226-227 [2015]).
Finally, County Court's determination to issue orders of protection in favor of his children,who reside with the victim, was not an abuse of discretion (see CPL 530.12 [5]; People v Yu-Jen Chang, 92 AD3d1132, 1136 [2012]).
McCarthy, J.P., Clark, Mulvey and Rumsey, JJ., concur. Ordered the judgment is modified,on the law, by reducing the term of probation by 60 days, and, as so modified, affirmed.