Opinion
481 KA 13–00469
04-27-2018
The PEOPLE of the State of New York, Respondent, v. Benjamin D. POHL, Defendant–Appellant.
FRANK M. BOGULSKI, BUFFALO, FOR DEFENDANT–APPELLANT. CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF COUNSEL), FOR RESPONDENT.
FRANK M. BOGULSKI, BUFFALO, FOR DEFENDANT–APPELLANT.
CAROLINE A. WOJTASZEK, DISTRICT ATTORNEY, LOCKPORT (LAURA T. BITTNER OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
Memorandum: Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, four counts of aggravated criminal contempt ( Penal Law § 215.52[1] ) arising from his violation of two orders of protection. With respect to three of those four counts, defendant contends that the conviction is not supported by legally sufficient evidence that he caused physical injury to the complainant for whose protection the orders of protection were issued. That contention is not preserved for our review because defendant failed to raise it in his motion for a trial order of dismissal (see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). In any event, it lacks merit. With respect to count two, the complainant's testimony that defendant choked her into unconsciousness is legally sufficient to establish that he caused her physical injury (see People v. Ryder, 146 A.D.3d 1022, 1025, 44 N.Y.S.3d 598 [3d Dept. 2017], lv denied 29 N.Y.3d 1086, 64 N.Y.S.3d 176, 86 N.E.3d 263 [2017] ; see also People v. Suyoung Yun, 140 A.D.3d 402, 403, 33 N.Y.S.3d 216 [1st Dept. 2016], lv denied 28 N.Y.3d 937, 40 N.Y.S.3d 365, 63 N.E.3d 85 [2016] ). With respect to count nine, her testimony that defendant punched and kicked her already broken ribs while screaming that he would be "more than happy" to break her ribs further, and that her ribs caused her so much pain the following night that she could not sleep, is legally sufficient to establish that he caused her physical injury (see generally People v. Chiddick, 8 N.Y.3d 445, 447–448, 834 N.Y.S.2d 710, 866 N.E.2d 1039 [2007] ). With respect to count 12, her testimony that defendant punched her in the face until she lost consciousness is legally sufficient to establish that he caused her physical injury (see People v. Wise, 99 A.D.3d 584, 584–585, 952 N.Y.S.2d 196 [1st Dept. 2012], lv. denied 21 N.Y.3d 1011, 971 N.Y.S.2d 263, 993 N.E.2d 1287 [2013] ). Viewing the evidence in light of the elements of the crime of aggravated criminal contempt as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we conclude that the verdict is not against the weight of the evidence with respect to those three counts (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ).
We reject defendant's contention that Supreme Court committed reversible error when it failed to conduct an inquiry pursuant to People v. Gomberg , 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550 (1975) upon learning that defense counsel had represented the complainant in a prior case. Defendant "failed to meet his burden of establishing that ‘the conduct of his defense was in fact affected by the operation of the conflict of interest’ " ( People v. Smart, 96 N.Y.2d 793, 795, 726 N.Y.S.2d 343, 750 N.E.2d 45 [2001] ; see People v. Pandajis, 147 A.D.3d 1469, 1470, 47 N.Y.S.3d 588 [4th Dept. 2017], lv denied 29 N.Y.3d 1084, 64 N.Y.S.3d 174, 86 N.E.3d 261 [2017] ). Here, defense counsel's prior representation of the complainant involved an entirely different incident that bore no relation to this case.
" ‘By failing to move to dismiss the indictment within the five-day statutory period on the ground that he was denied his right to testify before the grand jury, defendant ... waived his right to testify before the grand jury and his contention that the indictment should have been dismissed based on the denial of his right to testify before the grand jury lacks merit’ " ( People v. Hirsh, 106 A.D.3d 1546, 1547, 965 N.Y.S.2d 266 [4th Dept. 2013], lv denied 22 N.Y.3d 1088, 981 N.Y.S.2d 674, 4 N.E.3d 976 [2014] ; see People v. Cherry, 149 A.D.3d 1346, 1346, 52 N.Y.S.3d 567 [3d Dept. 2017], lv denied 29 N.Y.3d 1124, 64 N.Y.S.3d 674, 86 N.E.3d 566 [2017] ). Furthermore, defendant failed to preserve for our review his contention that the indictment should be dismissed on speedy trial grounds (see People v. Tirado, 109 A.D.3d 688, 690, 970 N.Y.S.2d 342 [4th Dept. 2013], lv denied 22 N.Y.3d 959, 977 N.Y.S.2d 190, 999 N.E.2d 555 [2013], reconsideration denied 22 N.Y.3d 1091, 981 N.Y.S.2d 676, 4 N.E.3d 978 [2014], cert denied ––– U.S. ––––, 135 S.Ct. 183, 190 L.Ed.2d 143 [2014] ), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).
Contrary to defendant's further contention, the court lawfully sentenced him consecutively on counts seven and nine inasmuch as defendant committed the conduct charged in those counts through "separate and distinct acts" ( People v. Brahney, 29 N.Y.3d 10, 15, 51 N.Y.S.3d 9, 73 N.E.3d 349 [2017], rearg. denied 29 N.Y.3d 1046, 56 N.Y.S.3d 507, 78 N.E.3d 1192 [2017] ). Indeed, the complainant left the house, went to the hospital, and returned from the hospital during the period of time between the commission of those acts. Finally, the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.