| People v Knox |
| 2018 NY Slip Op 08970 [167 AD3d 1324] |
| December 27, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v William M. Knox, Appellant. |
Terrence M. Kelly, Albany, for appellant.
D. Holley Carnright, District Attorney, Kingston (Paul DerOhannesian of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Ulster County (Williams, J.),rendered November 6, 2015, upon a verdict convicting defendant of the crime of criminalcontempt in the second degree.
Defendant was indicted on charges of assault in the second degree, aggravated criminalcontempt (two counts) and criminal contempt in the first degree following allegations that, ontwo occasions in September 2014 and October 2014, he engaged in conduct that violated anorder of protection that had been issued against him in favor of his ex-fiancé (hereinafterthe victim). After a trial, a jury acquitted defendant of the felony charged crimes, but found himguilty of the misdemeanor charge of criminal contempt in the second degree, which CountyCourt had charged as a lesser included offense of aggravated criminal contempt under count 2 ofthe indictment.[FN*] CountyCourt thereafter sentenced defendant to one year in jail and issued a full stay-away order ofprotection in favor of the victim. Defendant appeals, and we affirm.
Initially, defendant argues that his conviction for criminal contempt in the second degreeshould be reversed because County Court improperly charged that crime as a lesser includedoffense of aggravated criminal contempt. However, defendant specifically requested that CountyCourt charge criminal contempt in the second degree as a lesser included offense of aggravatedcriminal contempt and, with no objection from defendant, County Court so charged the jury.Under these circumstances, defendant waived any challenge that he may have had to such a lesserincluded offense charge, and he may not now be heard to complain (see People v Mills, 1 NY3d 269,274 [2003]; People v Richardson, 88 NY2d 1049, 1051 [1996]; People v Roman, 13 AD3d 1115,1115 [2004], lv denied 4 NY3d 802 [2005]).
Defendant further argues that County Court's Molineux ruling, which allowed thePeople to present evidence of certain prior acts of domestic violence that he had allegedlyperpetrated against the victim, deprived him of a fair trial. Although evidence of prior unchargedcrimes or bad acts may never be presented for the sole purpose of establishing a defendant'scriminal propensity or bad character, such evidence may be admissible if it is probative of someother material issue or fact in the case and its probative value outweighs any undue prejudice (see People v Leonard, 29 NY3d 1,7-8 [2017]; People v Blair, 90 NY2d 1003, 1004-1005 [1997]; People v Alvino,71 NY2d 233, 242-243 [1987]). Prior instances of violent, controlling and abusive behavior inrelationships plagued by domestic violence "are more likely to be considered relevant andprobative evidence because the aggression and bad acts are focused on one particular person,[thereby] demonstrating the defendant's intent, motive, identity and absence of mistake oraccident" (People v Westerling, 48AD3d 965, 966 [2008]; accordPeople v Colbert, 60 AD3d 1209, 1212 [2009]), as well as providing relevantbackground information and context as to the setting in which the underlying crimes occurredand an explanation for the victim's behavior (see People v Womack, 143 AD3d 1171, 1173 [2016], lvdenied 28 NY3d 1151 [2017]; People v Burkett, 101 AD3d 1468, 1470 [2012], lv denied20 NY3d 1096 [2013]; People vGorham, 17 AD3d 858, 860-861 [2005]).
The evidence offered by the People regarding defendant's prior violent and abusive actsagainst the victim—as limited by County Court—were material to several issues inthe case, including defendant's motive and intent to commit the charged crimes and the absenceof mistake or accident, and also provided background information and context regarding thenature of defendant's relationship with the victim (see People v Pham, 118 AD3d 1159, 1160-1161 [2014], lvdenied 24 NY3d 1087 [2014]; People v Doyle, 48 AD3d 961, 963-964 [2008], lv denied10 NY3d 862 [2008]; People vWilliams, 29 AD3d 1217, 1219 [2006], lv denied 7 NY3d 797 [2006]).Additionally, the court's ruling reflected a careful and thoughtful balancing of the probative valueof the proffered evidence against its prejudicial impact. Indeed, County Court parsed out andprecluded certain aspects of the People's Molineux proffer that it found to be prejudicial.Moreover, County Court gave timely and appropriate limiting instructions regarding the properuse of the challenged evidence, thereby limiting any prejudicial impact (see People v Babcock, 152 AD3d962, 965 [2017], lv denied 30 NY3d 947 [2017]; People v Betters, 41 AD3d 1040, 1042 [2007]). Accordingly, wediscern no error or abuse of discretion in County Court's Molineux ruling.
McCarthy, J.P., Egan Jr., Lynch and Devine, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:County Court also gave lesserincluded offense charges for the remaining counts in the indictment.