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People v. Virapen

Supreme Court of New York, Second Department

February 15, 2017

The People of the State of New York, respondent,
v.
Michael Virapen, appellant. Ind. No. 316/15

          Robert DiDio, Kew Gardens, NY (Danielle Muscatello of counsel), for appellant.

          Richard A. Brown, District Attorney, Kew Gardens, NY (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, and Antara D. Kanth of counsel), for respondent.

          RUTH C. BALKIN, J.P. L. PRISCILLA HALL HECTOR D. LASALLE BETSY BARROS, JJ.

          DECISION & ORDER

         Appeal by the defendant from a judgment of the Supreme Court, Queens County (Griffin, J.), rendered January 21, 2016, convicting him of criminal obstruction of breathing or blood circulation, endangering the welfare of a child (two counts), and harassment in the second degree, after a nonjury trial, and imposing sentence.

         ORDERED that the judgment is modified, on the law and the facts, by vacating the conviction of harassment in the second degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.

         The defendant's challenge to the legal sufficiency of the evidence supporting his conviction of criminal obstruction of breathing or blood circulation is unpreserved for appellate review (see CPL 470.05; People v Hawkins, 11 N.Y.3d 484, 491-492). In any event, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt of the crime of criminal obstruction of breathing or blood circulation beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342), we nevertheless accord great deference to the opportunity of the finder of fact to view the witnesses, hear testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383; People v Bleakley, 69 N.Y.2d 490). Upon reviewing the record here, we are satisfied that the verdict of guilt as to the count of criminal obstruction of breathing or blood circulation and both counts of endangering the welfare of a child was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633). The fact that the defendant was acquitted of the count of strangulation in the second degree (Penal Law § 121.12), and the count of assault in the third degree (Penal Law § 120.00[1]), did not undermine the weight of the evidence supporting the court's verdict on the counts of criminal obstruction of breathing or blood circulation and endangering the welfare of a child (Penal Law §§ 121.11, 260.10[1]; see People v White, 100 A.D.3d 1397, 1399).

         The defendant's contention that the evidence was legally insufficient to support his conviction of harassment in the second degree is unpreserved for appellate review, except to the extent that he challenges the sufficiency of the complainant's testimony that he was pushed or fell (see CPL 470.05; People v Hawkins, 11 N.Y.3d at 491-492; People v Mollaie, 81 A.D.3d 1448, 1449). However, upon our independent review of the record (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342), we find that the verdict of guilt on this count was against the weight of the evidence as to the element of intent to "harass, annoy or alarm" the complainant (Penal Law § 240.26[1]; see People v Caulkins, 82 A.D.3d 1506; see also Matter of Mamantov v Mamantov, 86 A.D.3d 540, 541). Accordingly, we vacate the conviction of harassment in the second degree and the sentence imposed thereon, and dismiss that count of the indictment.

         Contrary to the defendant's contention, he was not deprived of the effective assistance of counsel by his trial attorney's failure to object to the admission of audiotapes of two 911 telephone calls. There can be no deprivation of effective assistance of counsel arising from the failure to make a motion or argument that, as here, had little or no chance of success (see People v Stultz,2 N.Y.3d 277, 287; People v Moss,138 A.D.3d 761, 762; see also ...


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