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Nicolai, P.J., Tanenbaum and Lacava, Jj v. William Brandel

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


January 20, 2011

NICOLAI, P.J., TANENBAUM AND LACAVA, JJ THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
WILLIAM BRANDEL,
APPELLANT.

People v Brandel (William)

Decided on January 20, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 20, 2011

Appeal from (1) judgments of the City Court of Newburgh, Orange County (B. Harold Ramsey, J.), rendered September 16, 2005, and (2) an amended judgment of the same court rendered February 2, 2006. The judgments convicted defendant, after a non-jury trial, of criminal contempt in the second degree and stalking in the fourth degree. The amended judgment revoked a sentence of probation previously imposed, upon a finding that defendant had violated a condition thereof, upon defendant's admission, and resentenced him to a 30-day term of imprisonment on the conviction of stalking in the fourth degree.

ORDERED that the judgment convicting defendant of criminal contempt in the second degree is reversed, on the law, and the accusatory instrument is dismissed; and it is further,

ORDERED that the judgment convicting defendant of stalking in the fourth degree is affirmed; and it is further,

ORDERED that the appeal from the amended judgment of conviction is dismissed.

Insofar as is relevant to this appeal, in May 2004, defendant was charged, by separate misdemeanor complaints, with criminal contempt in the second degree (Penal Law § 215.50 [3]) and stalking in the fourth degree (Penal Law § 120.45 [1]). Prior to trial, defendant moved for dismissal of the accusatory instruments, which the court denied, finding the complaints to be facially sufficient. Following a non-jury trial, defendant was convicted of the charges and was sentenced to a conditional discharge on the criminal contempt in the second degree conviction and to probation on the stalking in the fourth degree conviction. Defendant was subsequently charged with violating the conditions of his probation. Thereafter, defendant admitted to violating a condition of his probation by possessing a pellet gun on October 21, 2005, and was resentenced to a 30-day term of imprisonment, which sentence he has served.

On appeal, defendant challenges the facial sufficiency of the accusatory instruments. Since the appellate record does not indicate whether defendant expressly waived his right to be prosecuted by informations rather than by misdemeanor complaints, the legal sufficiency of the complaints herein must be evaluated under the standards for informations (see e.g. People v Kalin, 12 NY3d 225, 228 [2009]; People v Pearson, 78 AD3d 445 [2010]). In order to be sufficient on its face, the information (and/or its supporting depositions) must allege, among other things, "facts of an evidentiary character" (CPL 100.15 [3]) that "establish, if true, every element of the offense charged" (CPL 100.40 [1] [c]; see People v Dumas 68 NY2d 729, 731 [1986]). These requirements are jurisdictional (see People v Kalin, 12 NY3d 225; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d at 731). Hence, defendant's claim must be reviewed by this court as a question of law (see CPL 470.05 [2]).

The essential elements of criminal contempt in the second degree, insofar as is relevant to the case at bar, are that a lawful order of the court was in effect and was clearly expressed, that defendant had knowledge of its provisions, and that defendant intentionally disobeyed the order (see Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]; People v Carthew, 19 Misc 3d 138[A], 2008 NY Slip Op 50879[U] [App Term, 9th & 10th Jud Dists 2008]). The accusatory instrument charging defendant with criminal contempt in the second degree does not contain allegations sufficient to establish that defendant had knowledge of the order of protection, that he was served with said order, that he was present in court when the order was issued, or that he signed the order of protection (see People v Inserra, 4 NY3d 30, 33 [2004]; People v Carthew, 19 Misc 3d 138[A], 2008 NY Slip Op 50879[U]; People v Simeon, NYLJ, Mar. 31, 1997 [App Term, 9th & 10th Jud Dists]; People v Jean-Mary, NYLJ, Mar. 21, 1995 [App Term, 9th & 10th Jud Dists], lv denied 86 NY2d 782 [1995]), and there are no allegations from which the court could have inferred that defendant had knowledge of the issuance of the order of protection (see People v Inserra, 4 NY3d at 33). Moreover, the "four corners" of the accusatory instrument (People v Thomas, 4 NY3d 143, 146 [2005]) failed to provide any allegations as to how the order was violated, and the "sufficiency of an accusatory instrument should, as statutorily prescribed, be determined upon a reading of the face of the instrument itself together with any supporting depositions" (People v Grabinski, 189 Misc 2d 307, 308 [App Term, 9th & 10th Jud Dists 2001]). Accordingly, as the accusatory instrument charging defendant with criminal contempt in the second degree is facially insufficient, the judgment convicting defendant of criminal contempt in the second degree is reversed and the accusatory instrument is dismissed.

A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person and knows, or reasonably should know, that such conduct is likely to cause reasonable fear of material harm to the physical health, safety or property of such person (Penal Law § 120.45 [1]). The accusatory instrument charging defendant with stalking in the fourth degree states that "defendant did wait in the area of the boat dock for [the victim] to disembark from the boat. The defendant then appeared to be taking her photograph with a [disposable] camera. When [the victim] walked past he continued to photograph her and then began to walk behind her." It is noted that the term "course of conduct" may reasonably be interpreted to mean a pattern of conduct comprised of a series of acts over a period of time, however short, which evidence a continuity of purpose (see e.g. People v Tralli, 88 Misc 2d 117 [App Term 9th & 10th Jud Dists 1976]). We find that the accusatory instrument charging defendant with stalking in the fourth degree is facially sufficient.

The evidence adduced at trial was: at one time, the victim and defendant lived together and two orders of protection were issued to the victim due to her prior conflicts with defendant; the victim was a recent graduate from college, and a boat ride for such graduates was advertised in the lobby of the college; and on the date of the boat ride, the victim saw defendant on the dock as she waited for the boat to leave. The record indicated that defendant's presence on the dock frightened the victim and made her nervous. When the boat returned, two and a half to three hours later, defendant was still on the dock. The victim's husband, and the police, observed defendant waiting for the boat with a camera in his hand, saw defendant take photographs of the victim, and observed defendant follow the victim after she had disembarked from the boat.

The foregoing evidence, viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), was legally sufficient to establish defendant's guilt of stalking in the fourth degree beyond a reasonable doubt. We note that any inconsistencies between the testimony of the witnesses did not undermine the credibility of said witnesses to such a degree as to render their accounts incredible as a matter of law (see People v Baksh, 43 AD3d 1072, 1073 [2007]; People v Almonte, 23 AD3d 392, 393 [2005]; see also People v Lopez, 40 AD3d 1119 [2007]).

Furthermore, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 [5]; People v Danielson, 9 NY3d 342 [2007]), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Lane, 7 NY3d 888 [2006]; People v Bleakley, 69 NY2d 490 [1987]). Upon reviewing the record, we are satisfied that the verdict convicting defendant of stalking in the fourth degree was not against the weight of the evidence (see People v Romero, 7 NY3d 633 [2006]).

With respect to defendant's contention that the judgments of conviction should be reversed due to the victim's testimony regarding uncharged crimes, we note that the trial judge, as the trier of fact, is presumed to have considered only the legally competent evidence adduced at the trial and excluded inadmissible evidence from the court's deliberations and verdict (see e.g. People v Palmer, 300 AD2d 412 [2002]; People v Tong Khu, 293 AD2d 424 [2002]; People v Concepcion, 266 AD2d 227 [1999]; see also People v Moreno, 70 NY2d 403, 406 [1987]). In any event, the error, if any, was harmless in light of the overwhelming evidence of defendant's guilt (see People v Crimmins, 36 NY2d 230 [1975]). Accordingly, the judgment convicting defendant of stalking in the fourth degree is affirmed.

Defendant's challenge to the sufficiency of his admission to violating the orders and conditions of his probation is academic in view of the fact that he has completed his sentence (see People v Nicholson, 31 AD3d 468 [2006]; People v Canada, 16 Misc 3d 132[A], 2007 NY Slip Op 51481[U] [App Term, 9th & 10th Jud Dists 2007]). Accordingly, the appeal from the amended judgment of conviction is dismissed as academic.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

Decision Date: January 20, 2011

20110120

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