People v Ekstra (Alexander)

[*1] People v Ekstra (Alexander) 2012 NY Slip Op 51824(U) Decided on September 13, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : LaCAVA, J.P., NICOLAI and LaSALLE, JJ
2010-2657 W CR.

The People of the State of New York, Respondent,

against

Alexander Ekstra, Appellant.

Appeal from a judgment of the Justice Court of the Town of Pound Ridge, Westchester County (Regina F. Kelly, J.), rendered September 21, 2010. The judgment convicted defendant, upon a jury verdict, of criminal contempt in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was convicted, upon a jury verdict, of criminal contempt in the second degree (Penal Law § 215.50 [3]) for violating an order of protection of the Supreme Court, Westchester County (Bruce E. Tolbert, J.), dated July 13, 2009, directing him to refrain from, among other things, harassment and aggravated harassment of the complainant, defendant's ex-wife, as well as to "refrain from any harassing or derogatory communications or any other contact by . . . e-mail (e-mails limited to issues affecting visitation with children), voice mail or other means with the [complainant] or in earshot of either of the children." The evidence at trial disclosed that defendant had sent the complainant e-mails stating, among other things, that she was a worthless liar, that she and her old mother were very sick, that she needed to seek help for her bipolar and mental conditions, and that "you must have all that extra money . . . from the jewelry you stole and pawned." [*2]

Defendant's contention that the evidence was legally insufficient to establish his guilt was not preserved, as defendant's counsel's motion to dismiss at the end of the People's case was focused on a venue issue and omitted to set forth, as required for purposes of preservation for appeal, a "specifically directed" argument as to why the People may have failed to prove their case on other grounds (People v Hawkins, 11 NY3d 484, 492 [2008]; see CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find the evidence legally sufficient to establish defendant's guilt of criminal contempt in the second degree. The provisions in the order of protection directing that defendant refrain from harassment or aggravated harassment of the complainant or having any contact with the complainant by e-mail, except for e-mails specifically involving visitation with the children, were clearly violated by his accusations contained in the e-mails, including that the complainant stole jewelry and had mental issues (see generally Penal Law § 215.50 [3]; 240.30), matters totally unrelated to visitation.

The jury received an instruction to the effect that the preponderance of the evidence had to establish the commission of the charged offense in Westchester County. We see no merit to defendant's contention that the People failed, by a preponderance of the evidence, to prove that Westchester County was a proper venue (see CPL 20.40 [1] [a]; People v Moore, 46 NY2d 1, 6 [1978]; 31 Carmody-Wait 2d § 172:19, at 20). The People's proof included evidence showing conduct by defendant in Westchester County that could be found to have constituted intentional disobedience of a mandate of the Supreme Court of Westchester County (see Penal Law § 215.50; CPL 20.40 [1] [a]; 20.60 [3]). There was evidence that defendant lived in Westchester County, and we note that his e-mails to the complainant were of a domestic rather than a business nature.

By not requesting a charge regarding venue lying in the Justice Court of the Town of Pound Ridge, defendant waived his challenge to venue in that town (see People v Greenberg, 89 NY2d 553, 556 [1997]; People v Hesterbay, 60 AD3d 564, 566 [2009]). In any event, the jury could have found, by a preponderance of the evidence, that defendant had sent the e-mails from his residence in the town, thus committing an element of the offense there (see Penal Law § 215.50 [3]; CPL 20.40 [1] [a]; 20.50 [1]; Moore, at 6-7). The other contentions raised herein are unpreserved or do not require reversal. Accordingly, the judgment of conviction is affirmed.

LaCava, J.P., Nicolai and LaSalle, JJ., concur.
Decision Date: September 13, 2012