| People v Bentley |
| 2020 NY Slip Op 04753 [186 AD3d 844] |
| August 26, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Garfield Bentley, Appellant. |
Warren S. Hecht, Forest Hills, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, NY (Robert H. Middlemiss of counsel), forrespondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas DeRosa, J.), rendered October 5, 2017, convicting him of burglary in the second degree, criminalcontempt in the first degree (three counts), criminal contempt in the second degree (five counts),criminal obstruction of breathing or blood circulation, falsely reporting an incident in the thirddegree, and stalking in the third degree, upon a jury verdict, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of criminalcontempt in the second degree under count 11 of the indictment, vacating the sentence imposedthereon, and dismissing that count of the indictment; as so modified, the judgment isaffirmed.
The defendant contends that the evidence was legally insufficient to support the verdict as toall counts because the testimony of the People's witnesses was incredible as a matter of law. Healso contends that the People failed to prove the elements of criminal contempt in the seconddegree as charged in count 9 of the indictment and falsely reporting an incident in the thirddegree. These contentions are unpreserved for appellate review, as the defendant's motion for atrial order of dismissal was not specifically directed at the errors being urged on appeal(see CPL 470.05 [2]; People vHawkins, 11 NY3d 484, 492 [2008]). In any event, viewing the evidence in the lightmost favorable to the prosecution (see People v Contes, 60 NY2d 620, 621 [1983]), wefind that it was legally sufficient to establish the defendant's guilt of each count beyond areasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review ofthe weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342, 348-349 [2007]), we neverthelessaccord great deference to the jury's opportunity to view the witnesses, hear the testimony, andobserve demeanor (see People v Mateo, 2 NY3d 383, 410 [2004]; People vBleakley, 69 NY2d 490, 495 [1987]). Upon reviewing the record here, we are satisfied thatthe verdict of guilt was not against the weight of the evidence (see People v Romero, 7 NY3d 633[2006]).
The defendant's contention that count 12 of the indictment, charging criminal contempt in thefirst degree, and count 13 of the indictment, charging stalking in the third degree, are eachduplicitous is unpreserved for appellate review (see CPL 470.05 [2]; People v Becoats, 17 NY3d 643,650-651 [2011]; People v Johnson,83 AD3d 1094, 1095 [2011]), and, in any event, without merit, as each of the challengedcounts alleged a single uninterrupted course of conduct, directed at a single victim, constituting asingle crime (see CPL 200.30; People v Alonzo, 16 NY3d 267, 270 [2011]; People v Maldonado, 177 AD3d554 [2019]).
The defendant's contention that count 12 of the indictment and counts 3 and 10, which alsocharged criminal contempt in the first degree, were multiplicitous is unpreserved for appellatereview (see CPL 470.05 [2]; People v Cruz, 96 NY2d 857, 858 [2001]; People v Sukhu, 157 AD3d 973,974 [2018]) and, in any event, without merit, because the subject counts were clearly distinctfrom one another and each count required proof of at least one fact that the others did not (see People v Gordon-Patterson, 170AD3d 1037, 1038 [2019]; People v Kindlon, 217 AD2d 793, 795 [1995]).
As the People concede, under the facts of this case, the defendant could not have committedthe crime of criminal contempt in the first degree as charged in count 10 of the indictment (PenalLaw § 215.51 [b] [i]) without also having committed the crime of criminalcontempt in the second degree as charged in count 11 of the indictment (Penal Law§ 215.50 [3]). As these counts were "inclusory concurrent counts" as defined byCPL 300.30 (4), a verdict of guilty upon the greater is deemed a dismissal of every lesser(see CPL 300.40 [3] [b]). Thus, although the defendant did not request that the subjectcounts be charged in the alternative, the conviction of the lesser count must be dismissed (seePeople v Lee, 39 NY2d 388, 390 [1976]; People v Grier, 37 NY2d 847, 848[1975]; People v Anderson, 91AD3d 789, 790 [2012]).
The defendant's remaining contentions are without merit. Mastro, J.P., Maltese, BrathwaiteNelson and Wooten, JJ., concur.