People v Ben-Ezra (Salvatore)

[*1] People v Ben-Ezra (Salvatore) 2008 NY Slip Op 50892(U) [19 Misc 3d 139(A)] Decided on April 21, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 21, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and SCHEINKMAN, JJ
2006-907 RO CR.

The People of the State of New York, Respondent,

against

Salvatore Ben-Ezra, Appellant.

Appeal from a judgment of the Justice Court of the Village of Spring Valley, Rockland County (Susan M. Smith, J.), rendered May 17, 2006. The judgment convicted defendant, upon a jury verdict, of criminal contempt in the second degree.

Judgment modified on the law by vacating the provision of the sentence concerning restitution; as so modified, affirmed.

Defendant was charged with criminal contempt in the second degree (Penal Law § 215.50 [3]). It was alleged in the accusatory instrument that on September 27, 2004, defendant exited his vehicle and came towards his wife, Tatiana Feigin, while she was leaving her place of employment at the Rockland Conservatory at 7:15 P.M., in violation of an order of protection issued on May 11, 2004, and defendant stated to her that "[she] better speak to [him] or [she] would regret it."

After a Molineux/Sandoval hearing, the People were permitted to introduce, during their direct case, evidence showing that after their marriage in early 1998, defendant frightened and physically and verbally abused Feigin, and that he sent letters and made telephone calls to her in violation of an order of protection issued in July 2003. The People were also permitted to introduce tape-recorded messages left by defendant on Feigin's answering machine in violation of the July 2003 order of protection. Evidence showing that defendant switched Feigin's E-Z Pass account to Feigin's address without her authorization and that he refused to pay her for charges he incurred thereon was also introduced during the People's direct case. In addition, the People were permitted to introduce evidence regarding the underlying facts relating to three prior convictions of harassment in the second degree, without indicating that the arrests and convictions ensued. Pursuant to the court's Sandoval ruling, the People cross-examined defendant regarding said prior convictions. On appeal, defendant contends that he was denied a fair trial as [*2]a result of the court's Molineux/Sandoval ruling.

Evidence of prior bad acts is not admissible unless such evidence is offered for some purpose other than to show defendant's bad character or to raise an inference that defendant has a criminal propensity (see People v Molineux, 168 NY 264, 291-294 [1901]; see also People v Lewis, 69 NY2d 321, 325 [1987]). In cases involving domestic violence, evidence of defendant's prior abusive conduct toward the victim is properly admitted as relevant to prove defendant's intent or motive to act, or generally as relevant background material (People v Till, 87 NY2d 835, 837 [1995]; People v Betters, 41 AD3d 1040 [2007]; People v Poquee, 9 AD3d 781, 782 [2004], lv denied 3 NY3d 741 [2004]; see People v DeJesus, 24 AD3d 464, 465 [2005]; People v Howard, 285 AD2d 560 [2001]; People v Iovine, 193 Misc 2d 668, 669 [App Term, 2d & 11th Jud Dists 2002]). In this case, the court appropriately balanced the probative value and need for the evidence against the potential for prejudice (see People v Ventimiglia, 52 NY2d 350, 359 [1981]; People v Allweiss, 48 NY2d 40, 47 [1979]) and properly admitted the evidence as relevant background material to enable the jury to understand defendant's relationship with the complainant, to explain the issuance of the order of protection and to complete the narrative of events leading up to the offense charged in this case (see People v Melendez, 8 AD3d 680 [2004]). The probative value of the evidence was not outweighed by the prejudicial effect of their admission (see People v Cook, 93 NY2d 840, 841 [1999]; People v Ely, 68 NY2d 520, 529 [1986]), especially in light of the court's charge to the jury on how to use the prior bad acts evidence during their deliberations (see People v Satiro, 72 NY2d 821, 822 [1988]; People v Price, 14 AD3d 718 [2005]).

The nature and extent of cross-examination have always been subject to the sound discretion of the trial court (see People v Sandoval, 34 NY2d 371, 374 [1974]). The defendant failed to meet his burden of demonstrating that the prejudicial effect of the evidence of his harassment convictions so outweighed the probative evidence that its exclusion was warranted (see People v Sandoval, 34 NY2d at 378; People v Dahlbender, 23 AD3d 493 [2005]; see also People v Myron, 28 AD3d 681 [2006]). Furthermore, the trial court's Molineux and Sandoval rulings should not be disturbed on the ground that the court did not provide a detailed recitation of its underlying reasoning, since the basis of the court's decision with regard thereto may be inferred from the arguments raised by the parties (see People v Walker, 83 NY2d 455, 459 [1994]).

Defendant's contention that the prosecutor's questions to defendant's alibi witness during cross-examination rendered the prosecutor an unsworn witness was not preserved for appellate review (see CPL 470.05 [2]). In any event, the contention is without merit since the prosecutor did not inject her own credibility into the trial, express her personal views of any evidence, suggest facts not in evidence, or vouch for the People's witnesses (see People v Rivera, 27 AD3d 491, 492 [2006]).

Defendant's contention, that the jury instruction relating to evidence of prior bad acts and uncharged crimes was improper, was waived since no objection was raised in the court below (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). Nevertheless, when viewed as a whole, we find that the court properly apprised the jury of the correct standard to apply when considering the evidence (see generally People v Fields, 87 NY2d 821, 823 [1995]).

With respect to the issue of restitution, we note that a court may direct reparation for [*3]actual out-of-pocket losses caused by the offense charged for which defendant was convicted or other losses caused by the offense that is part of the same criminal transaction (see Penal Law § 60.27 [1], [4] [a]; People v Horne, 97 NY2d 404, 412 [2002]). In this case, defendant may not be ordered to pay restitution for use of the complainant's E-Z Pass since said conduct did not constitute an offense within the meaning of Penal Law § 60.27 (4) (a), as the conduct was neither charged in the accusatory instrument nor part of the same criminal transaction of the offense for which defendant was convicted. Therefore, the judgment should be modified by vacating the provision of the sentence concerning restitution.

Rudolph, P.J., McCabe and Scheinkman, JJ., concur.
Decision Date: April 21, 2008