Opinion
2012-06-8
The PEOPLE of the State of New York, Respondent, v. William LONG, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Susan C. Ministero of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him, after a nonjury trial, of criminal contempt in the second degree (Penal Law § 215.50 [3] ) and stalking in the fourth degree (§ 120.45[2] ). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence supporting the conviction inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). We reject defendant's further contention that the verdict is against the weight of the evidence. Viewing the evidence in light of the elements of the crimes in this nonjury trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), and affording great deference to County Court's credibility determinations ( see People v. White, 43 A.D.3d 1407, 1408, 842 N.Y.S.2d 661,lv. denied9 N.Y.3d 1010, 850 N.Y.S.2d 398, 880 N.E.2d 884), we conclude that the alleged deficiencies in the evidence are not so substantial as to render the verdict against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).
We also reject defendant's contention that the court erred in its Molineux ruling. It is well settled that evidence of a defendant's prior bad acts is admissible “to show (1) intent, (2) motive, (3) knowledge, (4) common scheme or plan, or (5) identity of the defendant,” where, as here, its probative value outweighs its risk of prejudice to defendant ( People v. Alvino, 71 N.Y.2d 233, 242, 525 N.Y.S.2d 7, 519 N.E.2d 808;see People v. Arafet, 13 N.Y.3d 460, 465, 892 N.Y.S.2d 812, 920 N.E.2d 919;People v. Ventimiglia, 52 N.Y.2d 350, 359, 438 N.Y.S.2d 261, 420 N.E.2d 59). Defendant's prior behavior toward the complainant was admissible “to explain the issuance of an order of protection, to establish the defendant's motive and intent in the commission of the crimes, and to establish the complainant's state of mind” ( People v. Melendez, 8 A.D.3d 680, 681, 778 N.Y.S.2d 894,lv. denied3 N.Y.3d 741, 786 N.Y.S.2d 820, 820 N.E.2d 299;see People v. Morris, 82 A.D.3d 908, 908–909, 918 N.Y.S.2d 198,lv. denied17 N.Y.3d 808, 929 N.Y.S.2d 568, 953 N.E.2d 806).
Defendant's contention that he was denied the right to effective assistance of counsel likewise is lacking in merit. Defendant failed to “demonstrate the absence of strategic or other legitimate explanations” for the failure of defense counsel to file a more thorough CPL 250.10 notice of intent to proffer psychiatric evidence ( People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698). Upon our review of the record as a whole, we conclude that defense counsel provided meaningful representation ( see generally People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584; People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).
Contrary to defendant's remaining contention, the sentence is not unduly harsh or severe. We note, however, that the certificate of conviction incorrectly reflects that defendant was sentenced to a three-year term of probation upon the conviction of stalking in the fourth degree, a class B misdemeanor. The sentencing minutes establish that the court imposed a one-year term of probation upon that count, to be served concurrently with the sentence of probation imposed on the remaining charge. The certificate of conviction must therefore be amended accordingly ( see e.g. People v. Carrasquillo, 85 A.D.3d 1618, 1620, 925 N.Y.S.2d 743,lv. denied17 N.Y.3d 814, 929 N.Y.S.2d 803, 954 N.E.2d 94;People v. Afrika, 79 A.D.3d 1678, 1680, 914 N.Y.S.2d 542,lv. denied17 N.Y.3d 791, 929 N.Y.S.2d 99, 952 N.E.2d 1094).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.