Opinion
2016-716 W CR
11-29-2018
The PEOPLE of the State of New York, Respondent, v. Precious SIMPSON, Appellant.
Calhoun & Lawrence, LLP (Clinton W. Calhoun, White Plains, III of counsel), for appellant. Westchester County District Attorney (John Carmody and Steven A. Bender of counsel), for respondent.
Calhoun & Lawrence, LLP (Clinton W. Calhoun, White Plains, III of counsel), for appellant.
Westchester County District Attorney (John Carmody and Steven A. Bender of counsel), for respondent.
PRESENT: : TERRY JANE RUDERMAN, J.P., BRUCE E. TOLBERT, JAMES V. BRANDS, JJ
ORDERED that the judgment of conviction is affirmed.
Defendant was charged with stalking in the fourth degree ( Penal Law § 120.45 [1] ) based on incidents that had occurred in 2011 and 2012 involving the girlfriend (the victim) of defendant's husband. Defendant was also charged with criminal contempt in the second degree ( Penal Law § 215.50 [3] ) based on an incident that had occurred at approximately 11:20 p.m. on October 27, 2013, in which defendant allegedly had violated an order of protection in favor of the victim and against defendant.
Insofar as is relevant to this appeal, the victim testified at a jury trial, among other things, that she had moved in with defendant's husband in 2012. On October 27, 2013, the victim was aware that an order of protection had been issued in her favor and against defendant. At approximately 11:20 p.m. on that date, she was sitting in her vehicle in her driveway in front of her house, located in the City of Mount Vernon, talking on her cell phone, when defendant approached her car and asked her to roll down her window. Defendant asked the victim various questions about the victim's relationship with defendant's husband. Defendant then told the victim that she "will pay." The victim testified that she believed that this statement constituted a threat. On or about November 2, 2013, six days after the alleged incident, the victim signed a deposition at the Mount Vernon Police Department with respect to the October 27, 2013 incident.
After the People rested, when defendant moved for, among other things, a trial order of dismissal on the stalking charge, counsel stated, with respect to the criminal contempt charge, that "the testimony was that my client went by and had a conversation. Clearly, if that happened, then it would be a violation of the court's order. So I can't in good faith make a motion to dismiss that charge for no [prima facie] case." The City Court (Helen M. Blackwood, J.) declined to dismiss the stalking charge.
Defendant testified that she was not at the victim's home at 11:20 p.m. on October 27, 2013. She asserted that her shift at work in Valhalla had ended at 11:00 p.m. and that it was impossible for her to arrive at the victim's house in Mount Vernon by 11:20 p.m.
Prior to summations, the parties entered into the following stipulation:
"A temporary order of protection was issued against Precious Simpson in Mount Vernon City Court on August 6th, 2013 in favor of [the victim] (docket # 12-3240).
The order was valid through February 19th, 2014. Defendant signed said order and received a copy of the same on August 6th, 2013."
The jury thereafter found defendant not guilty of stalking in the fourth degree and guilty of criminal contempt in the second degree. The City Court (Adrian N. Armstrong, J.) sentenced defendant to a term of two years of probation. The court imposed a $200 mandatory surcharge and a $50 DNA fee, and issued a full five-year order of protection in favor of the victim and against defendant.
On appeal, defendant contends, among other things, that the People failed to adduce sufficient proof of her guilt of criminal contempt in the second degree because the People failed to introduce into evidence the order of protection and there was otherwise no proof of the conduct that it prohibited. Defendant's argument is, in essence, that the stipulation failed to include this proof, a necessary element of the charge of criminal contempt in the second degree in violation of Penal Law § 215.50 (3).
Defendant failed to preserve her legal sufficiency claim because she did not move to dismiss the criminal contempt charge at trial (see CPL 470.05 [2] ; People v. Gray , 86 NY2d 10, 19 [1995] ), and we decline to reach the issue as a matter of discretion in the interest of justice.
Defendant further claims that she was not afforded the effective assistance of trial counsel, a claim that need not be preserved for appellate review as it may be raised for the first time on appeal (see People v. Jones , 55 NY2d 771, 773 [1981] ; People v. Jackson , 218 AD2d 556, 558 [1995] ). However, we find that counsel presented a logical, cogent defense and extensively cross-examined the victim at the trial, which raised credibility issues that were considered by the jury. Counsel also secured an acquittal on the charge of stalking in the fourth degree. Thus, viewing counsel's performance in its totality, we find that defendant was afforded the effective assistance of trial counsel, as the evidence, the law, and the circumstances of this case indicate that counsel provided defendant with meaningful representation (see People v. Wragg , 26 NY3d 403, 409 [2015] ; People v. Oathout , 21 NY3d 127, 132 [2013] ; People v. Benevento , 91 NY2d 708, 712 [1998] ).
Accordingly, the judgment of conviction is affirmed.
RUDERMAN, J.P., and TOLBERT, J., concur.
BRANDS, J., dissents and votes to reverse the judgment of conviction and dismiss the accusatory instrument, in the following memorandum:
Defendant's legal sufficiency claim should be reviewed by this court as a matter of discretion in the interest of justice.
"The standard for reviewing legal sufficiency in a criminal case is whether, ‘[v]iewing the evidence ... in a manner most favorable to the prosecution and indulging in all reasonable inferences in the People's favor,’ a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" ( People v. Bueno , 18 NY3d 160, 169 [2011], quoting People v. Ford , 66 NY2d 428, 437 [1985] ).
The essential elements of criminal contempt in the second degree ( Penal Law § 215.50 [3] ) are that a lawful order of the court was in effect and was clearly expressed, that the defendant had knowledge of its provisions, and that the defendant intentionally disobeyed it (see Matter of McCormick v. Axelrod , 59 NY2d 574, 583 [1983] ; People v. Roman , 58 Misc 3d 150[A], 2018 NY Slip Op 50090[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; People v. Spasoff , 52 Misc 3d 134[A], 2016 NY Slip Op 51018[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ).
Here, it was conceded in the stipulation that defendant had been informed of the contents of the order of protection; that defendant had signed the order and received a copy thereof; and that it was in effect on October 27, 2013. However, the stipulation neither contained a copy of the order of protection nor otherwise set forth the contents of the order so as to establish the conduct defendant was prohibited from doing. Thus, there is a lack of proof as to whether defendant disobeyed the order of protection. In the absence of such proof, the evidence was insufficient to establish all of the elements of the charge of criminal contempt in the second degree in violation of Penal Law § 215.50 (3) (see People v. Roman , 13 AD3d 1115 [2004] ).
Even if defendant's unpreserved claim that the evidence was legally insufficient were not reviewed as a matter of discretion, I would find that the judgment of conviction must be reversed and a new trial ordered, as defendant's claim of ineffective assistance of trial counsel, which needs no preservation, has merit. Defendant's trial counsel should have, but failed to, move to dismiss the charge of criminal contempt in the second degree on the ground that the People did not prove beyond a reasonable doubt the conduct prohibited by the order of protection. This case represents a "rare occasion" where a single failing of counsel amounts to ineffective assistance (see People v. Turner , 5 NY3d 476, 480 [2005] ). This "single error" was so clear cut, dispositive, and objectively unreasonable "as to compromise ... defendant's right to a fair trial" ( People v. Caban , 5 NY3d 143, 152 [2005] ; see People v. Harris , 26 NY3d 321, 328 [2015] ; People v. Keschner , 25 NY3d 704, 723 [2015] ; People v. McGee , 20 NY3d 513, 518 [2013] ).
Accordingly, I vote to reverse the judgment of conviction and dismiss the accusatory instrument.