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People v. Johnson

Appellate Division of the Supreme Court of New York, Third Department
Oct 20, 1994
208 A.D.2d 1051 (N.Y. App. Div. 1994)

Summary

In People v Johnson (208 AD2d 1051 [3d Dept 1994]), the People established that the defendant violated probation by committing aggravated harassment in the second degree when he wrote and signed a letter with the victim's name, and sent it to a post office box in response to a personal advertisement in a newspaper.

Summary of this case from People v. Fernino

Opinion

October 20, 1994

Appeal from the County Court of Broome County (Mathews, J.).


For a period of time defendant has engaged in a pattern of harassment of the female victim, which has led to several convictions and jail time. While on probation for one of the convictions, defendant authored a letter which he signed with the victim's name and sent to a post office box in response to a personal advertisement in a newspaper. The victim thereafter received an unsolicited communication from the person who placed the personal advertisement. As a result of defendant's conduct, a petition was filed which alleged that defendant had been charged with a new crime and had violated other conditions of probation. In particular, defendant was alleged to have been charged with forgery in the third degree and aggravated harassment in the second degree and to have violated an order of protection which he had been directed to comply with as a condition of probation. After a hearing, County Court found the People had met their burden of establishing that defendant violated probation. Probation was revoked and a sentence of imprisonment of 2 1/3 to 7 years was imposed.

Defendant contends that there is insufficient evidence to support a finding of a violation of probation. There is, however, abundant uncontradicted evidence that defendant wrote the letter, and his intent to harass or annoy is readily inferable from his pattern of conduct toward the victim. Despite the absence of any direct testimony that the letter and resulting communication from the person who placed the personal advertisement actually annoyed or alarmed the victim, the trier of fact could reasonably conclude that the communication was likely to cause annoyance or alarm in the circumstances. Accordingly, the proof was sufficient to establish that defendant committed the crime of aggravated harassment in the second degree. The People were only required to establish a violation by a preponderance of the evidence (CPL 410.70), and the commission of an additional offense constitutes a ground for revocation (CPL 410.10; see, People v. Britton, 158 A.D.2d 932, lv. dismissed 76 N.Y.2d 785).

Having concluded that the evidence is sufficient to support a finding of aggravated harassment in the second degree, which is a ground for revocation, we see no need to pass on the question of whether defendant's conduct also constituted forgery in the third degree. Inasmuch as the revocation need not be based on defendant's violation of the order of protection, which was incorporated into the conditions of probation pursuant to Penal Law § 65.10 (2) (k) (see also, CPL 530.13), we see no need to address defendant's claims concerning the order of protection. Finally, we see no abuse of discretion in County Court's imposition of the harshest possible sentence upon revocation of probation. Despite having received a measure of leniency upon his prior convictions, defendant continued his unlawful pattern of harassment.

Cardona, P.J., Mikoll, Mercure and White, JJ., concur. Ordered that the judgment is affirmed.


Summaries of

People v. Johnson

Appellate Division of the Supreme Court of New York, Third Department
Oct 20, 1994
208 A.D.2d 1051 (N.Y. App. Div. 1994)

In People v Johnson (208 AD2d 1051 [3d Dept 1994]), the People established that the defendant violated probation by committing aggravated harassment in the second degree when he wrote and signed a letter with the victim's name, and sent it to a post office box in response to a personal advertisement in a newspaper.

Summary of this case from People v. Fernino

In People v Johnson (208 AD2d 1051, 1052, lv denied 85 NY2d 910), the Court observed that aggravated harassment in the second degree was established by evidence showing that the defendant wrote a letter which he signed with the victim's name, that he sent it to a post office box in response to a personal ad in a newspaper, and that the victim received an unsolicited communication from the person who had placed the personal ad.

Summary of this case from People v. Kochanowski

In People v. Johnson (208 A.D.2d 1051, 1052, lv denied 85 N.Y.2d 910), the court observed that aggravated harassment in the second degree was established by evidence showing that the defendant wrote a letter which he signed with the victim's name, that he sent it to a post office box in response to a personal ad in a newspaper, and that the victim received an unsolicited communication from the person who had placed the personal ad.

Summary of this case from People v. Kochanowski
Case details for

People v. Johnson

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. MARK R. JOHNSON…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Oct 20, 1994

Citations

208 A.D.2d 1051 (N.Y. App. Div. 1994)
617 N.Y.S.2d 577

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