People v Lawless (Justin)

[*1] People v Lawless (Justin) 2018 NY Slip Op 51745(U) Decided on November 29, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : JERRY GARGUILO, J.P., ANTHONY MARANO, BRUCE E. TOLBERT, JJ
2016-3015 N CR

The People of the State of New York, Respondent,

against

Justin Lawless, Appellant.

Nassau County Legal Aid Society (Tammy Feman and Gianpaolo Ciocco of counsel), for appellant. Nassau County District Attorney (Yael V. Levy and Mary Faldich of counsel), for respondent.

Appeal from a judgment of the District Court of Nassau County, First District (Douglas J. LeRose, J.), rendered October 19, 2016. 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 charged with criminal contempt in the second degree (Penal Law § 215.50 [3]) in an accusatory instrument alleging that defendant had violated an order of protection directing defendant to stay away from the victim and to refrain from communicating with or intimidating him. Following a jury trial, defendant was convicted as charged. The District Court denied defendant's subsequent motion pursuant to CPL 330.30 to set aside the verdict.

We first address defendant's challenge to the facial sufficiency of the accusatory instrument. Because defendant did not waive the right to be prosecuted by information, the facial sufficiency of the instrument must be evaluated under the standards applicable to an information (see CPL 100.10 [1]; 170.65 [1], [3]; People v Kalin, 12 NY3d 225, 228 [2009]; People v Moore, 48 Misc 3d 143[A], 2015 NY Slip Op 51337[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). To be facially sufficient, an information, together with any supporting deposition accompanying it or filed in connection therewith (see CPL 100.20), must set forth nonhearsay [*2]allegations that establish, if true, every element of the offense charged and the defendant's commission thereof (see CPL 100.15 [3]; 100.40 [1] [c]; People v Dumay, 23 NY3d 518, 522 [2014]; People v Kalin, 12 NY3d at 228-229; People v Hill, 51 Misc 3d 134[A], 2016 NY Slip Op 50543[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v Weiss, 17 Misc 3d 6, 8 [App Term, 2d Dept, 9th & 10th Jud Dists 2007]). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000] [citations omitted]; accord People v Kalin, 12 NY3d at 230; People v Konieczny, 2 NY3d 569, 575 [2004]). Furthermore, since proof of states of mind, such as guilty knowledge or intent, are normally based upon circumstantial evidence (see e.g. People v Johnson, 65 NY2d 556, 561 [1985]; People v Mackey, 49 NY2d 274, 279 [1980]), for pleading purposes, the requisite mental state may be alleged on the basis of a logical inference from the act itself or upon the surrounding circumstances (see People v Kwas, 52 Misc 3d 52, 54 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v Bishop, 41 Misc 3d 144[A], 2013 NY Slip Op 52063[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; People v Prevete, 10 Misc 3d 78, 80 [App Term, 2d Dept, 9th & 10th Jud Dists 2005]).

Here, the accusatory instrument charging defendant with criminal contempt in the second degree was facially sufficient. A person is guilty of criminal contempt in the second degree when he or she engages in "[i]ntentional disobedience or resistance to the lawful process or other mandate of a court" (Penal Law § 215.50 [3]). The essential elements of criminal contempt in the second degree are that a lawful order of the court was in effect, 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 Celifie, 47 Misc 3d 133[A], 2015 NY Slip Op 50466[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2015]; People v Labagh, 40 Misc 3d 54, 56-57 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). The accusatory instrument, together with its supporting documents, established all the elements of criminal contempt in the second degree—specifically, that a valid order of protection had been issued against defendant directing defendant to stay away from the victim and to refrain from communicating with or intimidating him; that defendant had been personally served with the order, had knowledge of the order and had been advised of its contents; and that defendant intentionally disobeyed the order by approaching the victim at a park, initiating a conversation with the victim and lunging at the victim, causing him to fear for his safety (see People v Mohamed, 53 Misc 3d 14, 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v Celifie, 47 Misc 3d 133[A], 2015 NY Slip Op 50466[U]; People v Jacobs, 11 Misc 3d 137[A], 2006 NY Slip Op 50511[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Defendant's intent to violate the order of protection can be inferred from the allegations of defendant's acts (see People v Dreyden, 28 Misc 3d 5, 8 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see also People v Jensen, 86 NY2d 248, 252-253 [1995]; People v Deegan, 69 NY2d 976, 979 [1987]).

Defendant failed to preserve his challenge to the legal sufficiency of the evidence, as defendant's motion to dismiss made at the end of the People's case and renewed at the close of all of the evidence failed to specifically allege the deficiency in the People's proof that he now raises on appeal (see People v Carncross, 14 NY3d 319, 324-325 [2010]; People v Hawkins, 11 NY3d [*3]484, 492-493 [2008]). In any event, viewing the evidence in the light most favorable to the People (see People v Delamota, 18 NY3d 107, 113 [2011]; People v Acosta, 80 NY2d 665, 672 [1993]), we find that the evidence adduced at trial was legally sufficient to establish defendant's guilt of criminal contempt in the second degree beyond a reasonable doubt (see generally People v Danielson, 9 NY3d 342, 349 [2007]). Furthermore, upon exercising our factual review power (see CPL 470.15 [5]; People v Danielson, 9 NY3d at 348-349), while according great deference to the jury's credibility determinations (see People v Romero, 7 NY3d 633, 644 [2006]; People v Mateo, 2 NY3d 383, 410 [2004]; People v Bleakley, 69 NY2d 490, 495 [1987]), we are satisfied that the verdict was not against the weight of the evidence (see People v Martin, 52 Misc 3d 140[A], 2016 NY Slip Op 51166[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; People v Celifie, 47 Misc 3d 133[A], 2015 NY Slip Op 50466[U]).

Defendant also failed to preserve his contention that the District Court deprived him of his constitutional right to confront adverse witnesses by limiting his cross-examination of the victim concerning the victim's bias and possible motive to testify falsely, as defendant did not assert a constitutional right to introduce the excluded evidence at trial (see People v Ramsundar, 138 AD3d 892, 892-893 [2016]; People v Simmons, 106 AD3d 1115, 1116 [2013]). In any event, defendant's contention lacks merit. A criminal defendant's right to confront all adverse witnesses through cross-examination is not absolute (see People v Corby, 6 NY3d 231, 234 [2005]; People v Williams, 81 NY2d 303, 313 [1993]; People v Francisco, 44 AD3d 870, 870 [2007]), and the scope of cross-examination is subject to the sound discretion of the trial court (see People v Corby, 6 NY3d at 234; People v Schwartzman, 24 NY2d 241, 244 [1969]; People v Taylor, 214 AD2d 757, 757 [1995]). Moreover, "[i]f bias or interest has been fully explored through other means, or the precluded area involved cumulative matter already presented, there generally has been no infringement of the right of confrontation" (People v Chin, 67 NY2d 22, 29 [1986] [internal citations omitted]; accord People v Corby, 6 NY3d at 235-236; People v Valentine, 48 AD3d 1268, 1269 [2008]). Here, the District Court afforded defendant a sufficient opportunity to establish the victim's alleged bias and motive to lie, and, as such, the victim's motive to lie and hostility toward defendant were evident to the jury. Inasmuch as the additional evidence of the victim's bias and motive to lie that defendant sought to establish through the precluded line of inquiry would have been cumulative, the court did not improvidently exercise its discretion in precluding that line of questioning (see People v Corby, 6 NY3d at 235-236; People v Blount, 126 AD3d 466, 467 [2015]; People v Pruchnicki, 74 AD3d 1820, 1821 [2010]; People v Baum, 114 AD2d 505, 505 [1985]). Furthermore, any error in this regard was harmless, given that defense counsel argued vigorously in summation that the victim had reasons to lie, and that there was overwhelming evidence of defendant's guilt and no reasonable possibility that the error might have contributed to the conviction (see People v Crimmins, 36 NY2d 230, 237 [1975]; People v Rosado, 53 AD3d 455, 456 [2008]).

Defendant likewise failed to preserve his contention that certain comments made by the prosecutor during opening statements and summation were improper and deprived him of a fair trial, as defendant either failed to timely object to the comments at issue or made only general objections (see CPL 470.05 [2]; People v Kaval, 154 AD3d 875, 876 [2017]; People v Elder, 152 AD3d 787, 789 [2017]). In any event, the challenged remarks constituted either a fair response to defense counsel's summation or fair comment on the evidence and the reasonable inferences to [*4]be drawn therefrom (see People v Mieles, 161 AD3d 1196, 1197 [2018]; People v Kaval, 154 AD3d at 876). Moreover, any error in this regard was harmless in light of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d at 241-242; People v Hill, 286 AD2d 777, 778 [2001]).

Finally, the District Court properly denied defendant's motion made pursuant to CPL 330.30 to set aside the verdict. The sole argument defendant raised in support of the motion was that his conviction was against the weight of the evidence, which does not qualify as a ground to set aside a verdict (see CPL 330.30; People v Carter, 63 NY2d 530, 536 [1984]). A trial court is prohibited from setting aside a verdict under the statute as against the weight of the evidence; such power is reserved to an appellate court (see People v Hampton, 21 NY3d 277, 287 [2013]; People v Goodfriend, 64 NY2d 695, 697-698 [1984]; People v Carter, 63 NY2d at 536-537; People v Lleshi, 100 AD3d 780, 780 [2012]).

Accordingly, the judgment of conviction is affirmed.

GARGUILO, J.P., MARANO and TOLBERT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 29, 2018