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The People of the State of New York v. Joseph Barbieri

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department


December 27, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
JOSEPH BARBIERI,
APPELLANT.

Appeal from judgments of the Justice Court of the Town of East Hampton, Suffolk County (Catherine A. Cahill, J.), rendered October 7, 2010.

People v Barbieri (Joseph)

Decided on December 27, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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: TANENBAUM, J.P., NICOLAI and MOLIA, JJ

The judgments convicted defendant, after a non-jury trial, of forcible touching and unlawful imprisonment in the second degree, respectively, and sentenced defendant to concurrent sentences of three years' probation with sex offender conditions.

ORDERED that the judgments of conviction are modified, as a matter of discretion in the interest of justice, by deleting from the conditions of defendant's probation paragraphs 3.B, 4.A, 4.B, 4.C, 4.E, 4.F, 5.B, and 7.H of the sex offender conditions of probation form; as so modified, the judgments of conviction are affirmed.

Defendant was charged with the forcible touching (Penal Law § 130.52) and unlawful imprisonment in the second degree (Penal Law § 135.05) of a 31-year-old co-worker based upon allegations that he had forcibly touched her by inserting his finger into her vagina, and had restrained her. After a non-jury trial, defendant was found guilty of these charges and sentenced to concurrent three-year terms of probation, which included numerous conditions prohibiting defendant from having contact with minors. Defendant objected to, among other things, these conditions of probation because the offenses in this case did not involve a minor, and he has sole custody of his minor son.

On appeal, defendant contends that (1) the evidence was legally insufficient to establish his guilt of forcible touching and unlawful imprisonment in the second degree, (2) the verdicts were against the weight of the evidence, (3) the sentences were unduly harsh and excessive with regard to the three years' probation imposed and the conditions of probation prohibiting him from having contact with minors, and (4) the trial court was biased and improperly dismissed the testimony of two male witnesses who had testified on his behalf.

Defendant's contention that the evidence was legally insufficient to support the convictions is not preserved for appellate review (see CPL 470.05 [2]; People v Gray, 86 NY2d 10 [1995]). In any event, viewing the evidence in the light most favorable to the People (see People v Contes, 60 NY2d 620 [1983]), we find that the evidence was legally sufficient to establish defendant's guilt of the charged offenses beyond a reasonable doubt.

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 accord great deference to the factfinder's opportunity at trial to view the witnesses, hear their testimony, observe their demeanor and assess their credibility (see People v Lane, 7 NY3d 888 [2006]). The Justice Court accepted the version of the events proffered by the People's witnesses, and we see no basis in the record to disturb the verdicts.

We find that the conditions of defendant's probation set forth in paragraphs 3.B, 4.A, 4.B, 4.C, 4.E, 4.F, 5.B and 7.H of the sex offender conditions of probation form, limiting contact with individuals under the age of 18, are unnecessarily broad and not "reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so" (Penal Law § 65.10 [1]), since the victim in this case was not a minor. We modify the judgment accordingly.

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

Decision Date: December 27, 2011

20111227

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