Opinion
2017–10963 Ind.No. 16–00629
02-28-2020
The PEOPLE, etc., respondent, v. Garfield BENTLEY, appellant.
Warren S. Hecht, Forest Hills, NY, for appellant. David M. Hoovler, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel), for respondent.
Warren S. Hecht, Forest Hills, NY, for appellant.
David M. Hoovler, District Attorney, Goshen, N.Y. (Robert H. Middlemiss of counsel), for respondent.
WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.
DECISION & ORDER Appeal by the defendant from a judgment of the County Court, Orange County (Nicholas De Rosa, J.), rendered October 5, 2017, convicting him of burglary in the second degree, criminal contempt 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 third degree, 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 criminal contempt in the second degree under count 11 of the indictment, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
The defendant contends that the evidence was legally insufficient to support the verdict as to all counts because the testimony of the People's witnesses was incredible as a matter of law. He also contends that the People failed to prove the elements of criminal contempt in the second degree as charged in count 9 of the indictment and falsely reporting an incident in the third degree. These contentions are unpreserved for appellate review, as the defendant's motion for a trial order of dismissal was not specifically directed at the errors being urged on appeal (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of each count beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5] ; People v. Danielson, 9 N.Y.3d 342, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ).
The defendant's contention that count 12 of the indictment, charging criminal contempt in the first degree, and count 13 of the indictment, charging stalking in the third degree, are each duplicitous is unpreserved for appellate review (see CPL 470.05[2] ; People v. Becoats, 17 N.Y.3d 643, 650–651, 934 N.Y.S.2d 737, 958 N.E.2d 865 ; People v. Johnson, 83 A.D.3d 1094, 1095, 922 N.Y.S.2d 455 ), and, in any event, without merit, as each of the challenged counts alleged a single uninterrupted course of conduct, directed at a single victim, constituting a single crime (see CPL 200.30 ; People v. Alonzo, 16 N.Y.3d 267, 270, 920 N.Y.S.2d 302, 945 N.E.2d 495 ; People v. Maldonado, 177 A.D.3d 554, 114 N.Y.S.3d 354 ).
The defendant's contention that count 12 of the indictment and counts 3 and 10, which also charged criminal contempt in the first degree, were multiplicitous is unpreserved for appellate review (see CPL 470.05[2] ; People v. Cruz, 96 N.Y.2d 857, 858, 730 N.Y.S.2d 29, 754 N.E.2d 1112 ; People v. Sukhu, 157 A.D.3d 973, 974, 69 N.Y.S.3d 697 ) and, in any event, without merit, because the subject counts were clearly distinct from one another and each count required proof of at least one fact that the others did not (see People v. Gordon–Patterson, 170 A.D.3d 1037, 1038, 94 N.Y.S.3d 614 ; People v. Kindlon, 217 A.D.2d 793, 795, 629 N.Y.S.2d 827 ).
As the People concede, under the facts of this case, the defendant could not have committed the crime of criminal contempt in the first degree as charged in count 10 of the indictment ( Penal Law § 215.51[b][i] ) without also having committed the crime of criminal contempt 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 by CPL 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 subject counts be charged in the alternative, the conviction of the lesser count must be dismissed (see People v. Lee, 39 N.Y.2d 388, 390, 384 N.Y.S.2d 123, 348 N.E.2d 579 ; People v. Grier, 37 N.Y.2d 847, 848, 378 N.Y.S.2d 37, 340 N.E.2d 471 ; People v. Anderson, 91 A.D.3d 789, 790, 937 N.Y.S.2d 109 ).
The defendant's remaining contentions are without merit.
MASTRO, J.P., MALTESE, BRATHWAITE NELSON and WOOTEN, JJ., concur.