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The People of the State of New York v. Jose Dacosta


May 9, 2011


Appeal from a judgment of the City Court of Mount Vernon, Westchester County (Adam Seiden, J.), rendered October 6, 2009.

People v DaCosta (Jose)

Decided on May 9, 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This opinion is uncorrected and will not be published in the printed Official Reports.


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 convicted, upon a jury verdict, of criminal contempt in the second degree (Penal Law § 215.50 [3]) for violating an order of protection. On appeal, defendant, in effect, challenges the accusatory instrument's facial sufficiency on the ground that the order of protection underlying his conviction lacks adequate specificity. The order of protection required defendant to "stay away from" complainant's place of business at "114 Gramatan Ave Mount Vernon, New York," but did not indicate the distance defendant should have maintained from that location. This omission, however, does not render the information jurisdictionally defective. As the Court of Appeals held in People v Inserra (4 NY3d 30, 33 [2004]), where "[t]he original misdemeanor complaint and supporting deposition plainly allege that the order of protection prohibited defendant from going near the protected person's home, . . . [t]hat allegation gave the defendant sufficient notice of the conduct at the base of the People's prosecution." Hence, defendant's challenge to the facial sufficiency of the information is without merit. Defendant's related contention, that the People failed to proffer legally sufficient evidence of his guilt when they elicited testimony that he had been walking back and forth across the street from complainant's place of business, a salon, and then crossed the street, removed his shirt and began screaming in front of the salon, is also without merit.

The alleged inadequacy of the interpreter's translation of complainant's trial testimony did not constitute such "serious error that would warrant a reversal" (People v Noor, 302 AD2d 480 [2003]; People v Rivera, 199 AD2d 288 [1993]). Although defendant "established that there were some errors in [the] translation, he failed to establish that he was prejudiced by those errors'" (People v Singleton, 59 AD3d 1131, 1131 [2009], quoting People v Dat Pham, 283 AD2d 952 [2001]). Moreover, the record reveals that any errors were remedied "either through objections made by defense counsel that were sustained by the court, or through defense counsel's cross-examination of [the complainant]" (People v Singleton, 59 AD3d at 1131).

Further, the City Court did not improvidently exercise its discretion when it precluded defense counsel from establishing the complainant's motive to fabricate her testimony because "defendant's proposed line of inquiry was too remote and speculative" (People v Garcia, 47 AD3d 830, 831 [2008]; see People v Mestres, 41 AD3d 618 [2007]). Defense counsel did not provide the trial court with any "reasonable basis" for defendant's speculative claim that the complainant had fabricated her testimony because she feared being deported on account of her immigration status (People v Garcia, 47 AD3d at 831, citing People v Mendez, 306 AD2d 143, 144 [2003]; see People v Alamo, 23 NY2d 630, 633 [1969]).

We cannot agree with defendant's contention that the City Court's Sandoval ruling improperly prevented defendant from testifying on his own behalf. The "mere fact that the defendant has committed a crime similar to the one for which he is currently being tried does not preclude inquiry into the prior crime" (People v Avila, 69 AD3d 642, 642 [2010]; see People v Hayes, 97 NY2d 203, 208 [2002]; People v Kelland, 208 AD2d 954 [1994]). Additionally, the prospect that a defendant may forgo testifying on his own behalf in light of an adverse Sandoval ruling, especially when there are no other defense witnesses, "does not mandate a specific outcome" in defendant's favor (People v Hayes, 97 NY2d at 208). A trial court might conclude that these factors instead warrant increased scrutiny of defendant's credibility (id.). As a result, the City Court's Sandoval ruling was not an improvident exercise of its discretion.

Finally, defendant's argument that the People violated the City Court's Ventimiglia determination is unpreserved for appellate review (People v Gray, 86 NY2d 10, 19 [1995]; see People v Hines, 97 NY2d 56, 62 [2001]). Defendant's remaining contentions are without merit.

Accordingly, the judgment of conviction is affirmed.

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

Decision Date: May 09, 2011


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