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People v. Jenkins

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


October 30, 2008

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
v.
DAVID JENKINS, APPELLANT.

Appeal from a judgment of the District Court of Nassau County, First District (Norman St. George, J.), rendered August 29, 2006. The judgment convicted defendant, upon a jury verdict, of criminal contempt in the second degree.

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT: McCABE, J.P., TANENBAUM and MOLIA, JJ.

Judgment of conviction affirmed.

In this prosecution for criminal contempt in the second degree (Penal Law § 215.50 [3]), defendant was charged with violating an order of protection directing, in part, that he stay away from the complainant and from her home. The complainant testified at trial to the effect that on the day in question, defendant appeared at the outside of her apartment door and knocked loudly and persistently. She did not open the door. The defense generally attacked the complainant's credibility. It also offered, in the alternative, the theories that defendant misapprehended the terms or effect of the order of protection; and that defendant's presence in the apartment building hallway, and knocking at the unopened door, did not constitute a violation of the order.

Viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620, 621 [1983]), we find that the evidence was legally sufficient to establish defendant's guilt of criminal contempt in the second degree beyond a reasonable doubt. Moreover, giving much deference to the jury's verdict, particularly as to issues of credibility (see People v Romero, 7 NY3d 633, 645 [2006]), even as we conduct our own review of the weight of the evidence (see People v Bleakley, 69 NY2d 490 [1987]) in terms of the elements of the offense as charged to the jury (see People v Danielson, 9 NY3d 342 [2007]), we reject defendant's argument that the verdict was against the weight of the evidence.

We find that testimony about defendant's past verbal abuse of, and controlling behavior toward, the complainant was properly admitted into evidence as relevant background information (see People v Ben-Ezra, 19 Misc 3d 139[A], 2008 NY Slip Op 50892[U] [App Term, 9th & 10th Jud Dists 2008]). We reject defendant's argument that the court improperly permitted the prosecutor to elicit the testimony as to these prior acts by means of leading questions. Even if it is assumed, under the particular circumstances here, that defense counsel's general objections preserved this issue, the prosecutor's questions were not so leading that the trial court failed to exercise its discretion providently in permitting them (see People v Weaver, 302 AD2d 872, 873 [2003] ["(t)he determination whether to allow leading questions is within the sound discretion of the court (citation omitted)"]).

Contrary to defendant's contention, tape recordings of the complainant's three 911 calls were properly admitted into evidence as present sense impressions. The contents of the calls established their contemporaneity with the events in question (see generally People v Vasquez, 88 NY2d 561 [1996]). Defendant's claim that the calls were not sufficiently corroborated (see id.) is not preserved (see People v Ricketts, 255 AD2d 341, 342 [1998]), and we decline to reach it in the interest of justice. In any event, as the complainant was a witness at trial, no further corroboration was needed (see People v Robinson, 282 AD2d 75, 82 [2001]).

Finally, we reject defendant's argument that the trial court erred in refusing to charge attempted criminal contempt in the second degree as a lesser included offense, as there was no reasonable view of the evidence that would support a finding that defendant committed only an attempt to violate the directive in the order of protection that he stay away from the complainant's home (see CPL 300.50 [1]; People v Glover, 57 NY2d 61, 63 [1982]).

McCabe, J.P., Tanenbaum and Molia, JJ., concur.

20081030

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