People v Doran

[*1] People v Doran 2007 NY Slip Op 52686(U) Decided on July 9, 2007 Justice Court Of The Town Of Lockport, Niagara County Tilney, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 9, 2007
Justice Court of the Town of Lockport, Niagara County

The People of the State of New York, Plaintiff,

against

Richard L. Doran, Defendant.


05050248



APPEARANCES OF COUNSEL

Hon. Matthew J. Murphy, III, Niagara County District Attorney,Charles Peressi, of counsel, for The People

Alan S. Hoffman, Attorney for Defendant, Richard L. Doran
Leonard G. Tilney Jr., J.

POSITION OF THE PARTIES:

Defendant, Richard L. Doran (Doran) in a post conviction/sentence CPL §440 Motion requests this Court to set aside his conviction or, in the alternative, to re-sentence him. Doran asserts inter alia that there was insufficient proof to sustain his conviction for Stalking in the Fourth Degree; the sentence imposed upon him for his Criminal Contempt in the Second Degree was harsh and excessive; he was denied due process because of ineffective assistance of counsel; and the court did not comply with the strict requirements of CPL §320.10 regarding waiver of a jury trial.

The People assert there did exist sufficient proof to sustain defendant's conviction for Stalking in the Fourth Degree; the defense erred in its interpretation of the Criminal Contempt statute; Defendant received adequate representation and the sentence was conducted in a fundamentally fair manner and the court complied with CPL §320.10.

POSTURE OF PROCEEDINGS

The Appeal from the trial conviction and sentence of this court is pending in Niagara County Court; after an initial few days of incarceration, this court granted defendant a stay of execution of his sentence pending the perfection of his appeal and the defendant is free on bail.

STATUTES

Criminal Procedure Law §440.10(2)(b) — Motion to Vacate Judgment

"2. Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment when:

(a) (b) The Judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal; or(c) "Criminal Procedure Law § 430.10 - Sentence of Imprisonment not to be changed after commencement.Except as otherwise specifically authorized by law, when the court has imposed a [*2]sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed, suspended or interrupted once the term or period of the sentence has commenced.

DECISION

I. Legal Sufficiency

a. Stalking in the Fourth Degree

The applicability of the Criminal Procedure Law §440.10(2)(5) to a non record court has always been curious to this court. However, a Record on Appeal exists for the Niagara County Court to review for sufficiency upon which the conviction was based. Insufficiency of proof is a legal question which is reviewable on appeal and, therefore, the hearing request on that issue must be denied by this court. Were this court not constrained by CPL §440.10(2)(b), it would sustain the conviction as the defense argument is misplaced. People vs. Watson, 32 AD3d 1199 (4th Dept.) is not applicable because it relates to §120.45(1) of the Penal Law and defendant was convicted under Section 120.45(2). Bernadette Bucolo (Bucolo) testified that Doran told her he loved her, had things delivered to her house and came to her house pounding on the front door. Bucolo was home alone with her two year old son when she saw Doran's car. She was scared and afraid and hid in the bathroom. After hearing her garage door go up, she found a pile of notes left there from Doran. Bucolo had her phone number changed three times, but Doran continued to call her. She told him 100 times she did not want to see him. Doran threatened to tell Bucolo's husband they were having an affair. Doran wanted to have an affair. Doran's actions were upsetting to Bucolo. She cried begging him to stop. Bucolo eventually became afraid to go outside even to play with her children because Doran would drive up and down the street. The investigating Niagara County Sheriff Deputy testified to Bucolo's demeanor as crying and being upset. Numerous letters (Exhibits "A" to "X") were admitted into evidence by consent. Doran admitted sending them to Bucolo. The court credited Bucolo's testimony. As such, the People proved that the defendant caused material harm to the mental or emotional health of Bucolo (Cf PL §120.45(2) and People vs. Stuart, 100 NY2d 412 (2003).

(b) Criminal Contempt in the Second Degree

Likewise, the sufficiency of evidence for defendant's conviction for Criminal Contempt in the Second Degree is a question of law for the Appellate Court to decide. The applicability of CPL §440.10(2)(b) requires denial of the defense motion for a hearing. But even without that section of law, this court believes the proof is sufficient to sustain a conviction under Penal Law Section 215.50(3). Defense, again, misconstrues the First Department's 2005 case of People vs. DeMisse, 24 AD3d 118. While the felony of Criminal Contempt First Degree [PL 215.51(B)(i)] needs reasonable fear of physical injury, serious physical injury or death, the misdemeanor of Criminal Contempt Second [PL 215.50(3)] requires only an intentional disobedience of a lawful mandate of the court.

Bucolo testified that on August 24, 2005, she and her children went to Tops (a supermarket in the Town of Lockport). When she came out of Tops with her children, Doran drove to her around her car, honking his car's horn, calling her name. She was scared, went back into Tops getting help from a checkout girl to call the Police.

Doran testified at trial (his affidavit is attached to 440 CPL motion, states what he "would have said"), he was at Tops in the Town of Lockport. He was returning from Youngstown and had an appointment at Gonzo's (a bar in downtown City of Lockport). Doran was at BBQ Pit for lunch, then went cruising around area for commercial property. He saw [*3]BUCOLO at a distance. He knew she saw him. Doran was 25 — 30 yards away, put his arm in air, but did not say anything. This court has previously ordered a full stay away Order of Protection (the text of which is obscured in record on appeal as bottom half is folder over), but in any event, this court credits Bucolo's version of facts, especially in light of Doran's incredible testimony he was driving from Youngstown to downtown City of Lockport and after having lunch, he somehow ended up in the Town of Lockport after 6:30 p.m. There is no commercial property for sale in Tops Plaza and the route described by Doran certainly was not on his way home to Tonawanda.

Even if Doran's arrival in the Tops parking lot (a grocery store) was a chance encounter, Bucolo's testimony that he was honking his horn, calling Bucolo's name and driving his car around her suggests defendant's conduct was not merely part of a fortuitous chain of events (See People vs. Nawaz, 183 Misc 2d 194, 702 NYS 2d 520 (NY Crim. Ct. 1999) and People v. Garrity, 2002 WL 31748578). Reviewing the evidence in a light most favorable to the People, and according great deference to the fact finder's credibility determinations, this court must deny the defense request on this ground. [See People v. Hure, 16 AD3d 774 (2005) and People v. Krzykowski, 293 AD2d 877 (2002), lv. denied 100 NY2d 643 (2003)].

II. RESENTENCE

Whether or not this court's sentence of defendant was harsh or excess is another issue reviewable on appeal by the Niagara County Court. That court can modify the sentence of this court pursuant to CPL §470.15.

Nor does CPL §440.20 authorize this court to reduce defendant's original sentence as defendant is entitled to relief under that section only if the original sentence was "unauthorized, illegally imposed or otherwise invalid as a matter of law." [CPL §440.20(1); People v. Butts 30 AD3d 1013 (4th Dept. 2006).

Finally, once defendant starts service of the sentence imposed by this court, it is without authority to resentence. CPL§ 430.10. Accordingly, defense motion to resentence is denied.

III. CPL §320.10 — JURY WAIVER ISSUE

This court requires, upon request by the defendant, for a non-jury trial, to have him execute in open court, a jury waiver and Parker warning acknowledgment. At trial, this court marks the jury waiver as Court Exhibit "1", and again requesting from both parties their consent to enter the same into evidence. No objection was received in this case. Once the defendant makes a knowingly intelligent waiver in open court, the court is bound to accept it (Cf People v. Saunders, 19 AD3d 744, 795 NYS 2d 446 (3d Dept. 2005)]. The Appellate Court can review this procedure to see if the statutory requirements have been met. Defense motion for a hearing on this issue is denied.

IV. INEFFECTIVE ASSISTANCE OF COUNSEL

A. Sentencing has not conducted in a fundamentally fair manner.

This Court allowed defense counsel access to the Presentence Investigation Report prior to sentence. This court also asked defense counsel for comment regarding the same prior to sentence. The court also inquired from the Assistant District Attorney and the defendant their statements prior to sentence. Attached to this Decision are the court's notes from sentencing. Neither defense counsel nor defendant sought additional time to contest the facts therein [See People vs. Hansen, 99 NY2d 339 (2003)]. The defendant has a right to have the court receive a complete Presentence report pursuant to CPL §390.20(i). Without any requests to contest or amend the Presentence report submitted, it was determined by the court to be a complete [*4]Presentence report. There was no evidence before this court that the entire defendant's mental health history was critical to a fair sentencing determination [See People vs. Buchicchio, 116 AD2d 729, 4th Dept. (1986) lv denied 67 NY2d 940 and People v. Brink 30 AD3d 1014 (4th Dept. 2006)]. The Appellate Court can review the issue of preservation (CPL 470.05(2)) and/or this Court's compliance with sentencing provisions of the statute. Accordingly, defense motion for a hearing is denied.

b. Borea v. Keane, 99 F.3d 492 issue

The only plea communicated by the People to defense counsel was a plea to the charge. It would appear to be academic if it was or was not communicated to the defendant. Mr. Farrugia's affidavit indicates that he did communicate it. Motion for a hearing is denied.

c. Due Process

Defendant is entitled to a fair trial representation by effective counsel. (See People vs. Baldi, 54 NY2d 137; People v. Oroz 39 NY2d 457 and People v. Bennet 29 NY 462). There is nothing in the record which supports defendant's claim that he was denied the effective assistance of counsel. Therein lies the Appellate rub, that is, the inability for the Appellate Court to review this issue. When such a situation happens, defendant's only recourse is to pursue his remedy under CPL Section 440.10. (See People v. Boans 93 AD2d 1000, 461 NYS 2d 615 (4th Dept. 1983) and People v. Brown 45 NY2d 852 (1978). Enough facts have been raised on this issue in defendant's moving papers to require an evidentiary hearing and ruling by this court so that adequate Appellate review can be had in this matter. Accordingly, counsel for parties shall schedule with the court a day certain for a hearing in this matter.

Dated: July 9, 2007

Lockport, New York

_______________________________

Leonard G. Tilney, Jr.

Lockport Town Justice