People v Sullivan (Kenneth)

[*1] People v Sullivan (Kenneth) 2010 NY Slip Op 50749(U) [27 Misc 3d 134(A)] Decided on April 21, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
2008-1245 OR CR.

The People of the State of New York, Respondent,

against

Kenneth C. Sullivan, Appellant.

Appeal from a judgment of the Justice Court of the Village of Maybrook, Orange County (Philip A. Barnes, J.), rendered May 27, 2008. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

After a nonjury trial, the Justice Court convicted defendant of harassment in the second degree (Penal Law § 240.26 [1]) upon the victim's testimony that defendant, cursing, left his automobile, walked rapidly to within a foot of where the victim was standing, raised a cocked fist to the victim's face, cursed him again, and declared his intention to "beat the shit" out of the victim. On appeal, defendant argues that the Justice Court's failure, in its return, to rebut his legal claims of error requires that they be deemed admitted, that the proof failed to establish the offense of harassment in the second degree, that the victim's supporting deposition was improvidently allowed into evidence and served only to bolster the victim's trial testimony, and that the People failed to disprove his justification defense beyond a reasonable doubt. We find these contentions to be without merit and affirm.

CPL 460.10 (3) requires only that, in response to an affidavit of errors, the court "summarize evidence, facts or occurrences in or adduced at the proceedings resulting in the judgment, sentence or order, which constitute the factual foundation for the contentions alleged in the affidavit of errors" to the degree necessary for a proper determination of the appeal (see People v Wright, 19 Misc 3d 140[A], 2008 NY Slip Op 50904[U] [App Term, 9th & 10th Jud Dists 2008]; People v Hanson, 2 Misc 3d 130[A], 2004 NY Slip Op 50092[U] [App Term, 9th & 10th Jud Dists 2004]). Defendant does not dispute the factual sufficiency of the return herein (People v Robinson, 72 NY2d 989, 990 [1988]), and in the absence of a motion to correct or amplify the record, the facts set forth in the return are "conclusive as to all controverted matters [*2]within the [trial court's] knowledge" (People v Prior, 4 NY2d 70, 73 [1958], quoting People v Mason, 307 NY 570, 574 [1954]; see People v Galimore, 11 Misc 3d 143[A], 2006 NY Slip Op 50744[U] [App Term, 9th & 10th Jud Dists 2006]).

As to evidentiary sufficiency, defendant's motion at the conclusion of defendant's case did not identify, with the requisite specificity, the evidentiary deficiencies now asserted on appeal, to preserve such claims for appellate review (CPL 470.05 [2]; People v Hines, 97 NY2d 56, 62 [2001]; People v Gray, 86 NY2d 10, 19 [1995]; People v Ward, 65 AD3d 1172 [2009]). In any event, viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), the proof was legally sufficient to prove defendant's guilt of harassment in the second degree (see Matter of Ivan F., 233 AD2d 210, 211 [1996]; People v Prevete, 10 Misc 3d 78, 79-80 [App Term, 9th & 10th Jud Dists 2005]; People v Madsen, 2003 NY Slip Op 51409[U] [App Term, 1st Dept 2003]) and that defendant's threat of physical force was not justified (Penal Law § 25.00 [1]; see People v Reed, 40 NY2d 204, 209 [1976]; People v Perez, 213 AD2d 682 [1995]).

Defendant's remaining claim of error is unpreserved (People v Alvarez, 201 AD2d 487 [1994]) and, in any event, without merit (People v Reed, 40 NY2d at 207; People v Brisbane, 203 AD2d 89, 90 [1994]).

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: April 21, 2010