New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
October 10, 2012
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
MICHAEL J. TOMOSSONE, APPELLANT.
Appeal from a judgment of the District Court of Suffolk County, First District (John Iliou, J.), rendered January 6, 2010.
People v Tomossone (Michael)
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 10, 2012
PRESENT: MOLIA, J.P., IANNACCI and LaSALLE, JJ
The judgment convicted defendant, after a non-jury trial, of harassment in the second degree.
ORDERED that the judgment of conviction is affirmed.
On November 1, 2009, the People charged defendant with harassment in the second degree (Penal Law § 240.26 ), a violation, in that: "[B]etween September 11, 2009 and September 18, 2009, with intent to harass, annoy or alarm another person, [defendant] followed a person in or about a public place or places; in that, the defendant after being suspended by his supervisor . . . did photograph him entering and exiting Town Hall and did follow him to his home and other locations in the Town of Islip. This conduct did in fact harass, annoy and alarm [the supervisor]." Following a non-jury trial, the District Court convicted defendant of the charged offense.
Defendant's challenge to the constitutionality of Penal Law § 240.26 (2) on the grounds of overbreadth and vagueness is not properly before this court because the claim was not "raised by motion, upon notice to the People, prior to trial and in writing" (People v Peak Carting, Inc., 11 Misc 3d 4, 6 [App Term, 9th & 10th Jud Dists 2005]; see generally People v Iannelli, 69 NY2d 684 ). In any event, the challenge lacks merit. Penal Law § 240.26 (2) "covers a form of stalking . . . in recognition of the seriousness of stalking and the inadequate deterrence and punishment for such conduct" (Donnino, Practice Commentary, McKinney's Cons Laws of NY, Book 39, Penal Law § 240.26). The stalking statutes have survived constitutional scrutiny (see e.g. People v Stuart, 100 NY2d 412, 429  [Penal Law § 120.45]; People v Brown, 61 AD3d 1007, 1009  [Penal Law § 120.55]). Similarly, we are satisfied that Penal Law § 240.26 (2) "provides a person of ordinary intelligence with a reasonable opportunity to know the conduct that is proscribed and contains clear standards for enforcement" (People v Pacienza, 91 AD3d 672, 673 ; see People v Taylor, 9 NY3d 129, 151 ; People v Stuart, 100 NY2d at 420; People v Gezari, 32 Misc 3d 133[A], 2011 NY Slip Op 51444[U] [App Term, 9th & 10th Jud Dists 2011]). Moreover, defendant does not argue that the statute implicates his First Amendment rights (see People v Schack, 86 NY2d 529, 536 ; Amazon.com, LLC v New York State Dept. of Taxation & Fin., 81 AD3d 183, 200 ; People v Brown, 61 AD3d at 1009).
Defendant's claims that the accusatory instrument was insufficiently specific as to the acts alleged to constitute the offense and the times they were committed, and that it failed to allege the element of intent are also without merit. In People v Shack (86 NY2d at 540-541), the Court of Appeals noted: "When a crime may be committed by multiple acts over time and is amenable to characterization as a continuing crime . . . the count in the charging instrument may properly allege that the single offense was committed over a significant period of time . . . A continuing crime is one that by its nature may be committed either by one act or by multiple acts and readily permits characterization as a continuing offense over a period of time" (internal quotation marks and citations omitted).
In Shack, the Court rejected a claim in relation to Penal Law § 240.30 (2), aggravated harassment in the second degree, that the accusatory instrument was defective for lack of specificity, holding that, while the statute "imposes criminal liability for making a single telephone call . . . the terms harass' and annoy' are easily susceptible of describing multiple acts occurring over a period of time" (Shack, 86 NY2d at 541). Similarly, Penal Law § 240.26 (2), which contains the "harass" and "annoy" language, may be construed to contemplate a single act of following in or about a public place or multiple acts over a period of time. "Hence, a defendant may be guilty of [such an offense] by virtue of a series of acts, none of which may be enough by itself to constitute the offense, but each of which when combined make out the [offense]" (People v Keindl, 68 NY2d 410, 421 ; see also People v First Meridian Planning Corp., 86 NY2d 608, 615-616  ["Where . . . a crime by its nature as defined in the Penal Law may be committed either by one act or by multiple acts and can be characterized as a continuing offense over time, the (accusatory instrument) may charge the continuing offense in a single count"]). Thus, the one-week period identified in the accusatory instrument for the commission of this ongoing offense did not violate defendant's right to notice of the specifics of the offense alleged and the opportunity to defend.
As to the sufficiency of the facts alleged to charge the element of intent, "[b]ecause intent is an invisible operation of the mind, direct evidence is rarely available [in the absence of an admission] and is unnecessary where there is legally sufficient circumstantial evidence of intent which can be inferred from the defendant's conduct and the surrounding circumstances" (People v Rodriguez, 17 NY3d 486, 489  [internal quotation marks and citations omitted]; see also People v Bracey, 41 NY2d 296, 303 ; Matter of Patricia H. v Richard H., 78 AD3d 1435, 1436 ; People v Muojo, 32 Misc 3d 130[A], 2011 NY Slip Op 51307[U] [App Term, 9th & 10th Jud Dists 2011]). Defendant's intent to harass may readily be inferred from the acts alleged in the accusatory instrument.
Defendant further argues that the testimony of the People's witnesses, insofar as it concerned the prior relationship between the victim and defendant, as well as incidents that occurred prior to September 11, 2009, was inadmissible and offered solely to prejudice the defense. In the context of a Penal Law § 240.26 (2) prosecution, the court, in Matter of Patricia H., observed that "[p]rior uncharged crimes or bad acts may be admitted to establish motive, intent, to provide necessary background or [to] complete a witness's narrative'" (78 AD3d at 1436-1437, quoting People v Tarver, 2 AD3d 968, 969 ; see also People v Till, 87 NY2d 835, 837  ["such evidence may be allowed when . . . it bears on the motive and state of mind . . . and is found to be needed as background material . . . or to complete the narrative of the episode"] [internal quotation marks and citations omitted]). Here, the District Court was clearly cognizant of the necessity that the probative value of the proof of prior bad acts outweigh the risk of undue prejudice to the defense (see People v Till, 87 NY2d at 836), insisting that the testimony would be limited and that it would not allow extensive examination and cross-examination on the matters raised. Moreover, "in a non-jury trial, absent a showing of prejudice, the trial court is presumed, by virtue of . . . learning and experience, to have considered only the competent evidence adduced in reaching [its] determination'" (People v Torres, 1 AD3d 621 , quoting People v Latella, 112 AD2d 324 ; see e.g. People v Kozlow, 46 AD3d 913, 915-916 ; People v Lebrecht, 13 Misc 3d 45, 50 [App Term, 9th & 10th Jud Dists 2006]). The narratives of the prior relationship between defendant and the victim were admissible to illuminate and clarify defendant's motive and intent. We find that the District Court appropriately limited the extent the parties could litigate the events preceding the charge.
Insofar as defendant challenges the admission of a hard copy of a photograph of the supervisor as well as photographs of the supervisor discovered on defendant's personal web page, we find no error. The District Court sustained defense counsel's objection to all but one of the web page photographs on authentication grounds, admitted the hard copy photograph of the supervisor and an identical web page photograph as sufficiently authenticated by the supervisor, and ruled that the remaining web page photographs were admitted not to prove that defendant had taken the photographs or even had posted them on the website but only as proof, of whatever weight the District Court would accord them, that the supervisor had been harassed thereby. Given that the remaining evidence more than sufficed to establish that the supervisor had been harassed by defendant's conduct, whatever the value of the evidence of the supervisor's reaction to seeing pictures of him posted on defendant's web page (one of which, in any event, he knew defendant had taken), their admission cannot have amounted to more than harmless error.
Defendant also argues, in effect, that the victim, as a witness, was incredible as a matter of law. However, such a claim was not made at trial and is unpreserved for appellate review (CPL 470.05 ; People v Gruttola, 43 NY2d 116, 122 ; People v Carlucci, 80 AD3d 621, 622 ; People v Schwartz, 33 Misc 3d 142[A], 2011 NY Slip Op 52226[U] [App Term, 9th & 10th Jud Dists 2011]). In any event, it cannot be said that the victim's testimony was "so unworthy of belief as to be incredible as a matter of law" (People v Scanlon, 52 AD3d 1035, 1039 ).
In fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15 ; People v Danielson, 9 NY3d 342 ), we nevertheless accord great deference to the factfinder's opportunity to view the witnesses, hear their testimony, observe their demeanor, and assess their credibility (see People v Mateo, 2 NY3d 383 ; People v Bleakley, 69 NY2d 490 ). We do not find the verdict to be against the weight of the evidence.
Finally, with respect to defendant's claim of ineffective representation, in the absence of a motion challenging the representation of trial counsel, whereby matters of strategy and other factors relevant to evaluating the effectiveness of counsel might be explored (see CPL 440.10; People v Rivera, 71 NY2d 705, 709 ), we are relegated to reviewing the performance of trial counsel "[t]o the extent that the existing record permits" (People v Lopez, 2 AD3d 234 ). The available record reveals that, in general, trial counsel "exhibited a grasp of the facts and applicable law" (People v Bobrowsky, 23 Misc 3d 137[A], 2009 NY Slip Op 50862[U] [App Term, 9th & 10th Jud Dists 2009]), and was an active participant in the proceedings, marshaling coherent, if not always successful, arguments with respect to the admissibility and significance of evidence, vigorously cross-examining the People's witnesses, and offering a lengthy summation wherein counsel articulated a coherent theory of the inadequacy of the proof of guilt. In light of the proof of guilt and "the circumstances of [the] particular case, viewed in totality and as of the time of the representation," we find that defendant's right to the effective assistance of counsel was satisfied (People v Henry, 95 NY2d 563, 565 ; see also People v Baker, 14 NY3d 266, 270-271 ). Accordingly, the judgment of conviction is affirmed.
Molia, J.P., and Iannacci, J., concur.
LaSalle, J., taking no part. Decision Date: October 10, 2012
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