People v. Cortese

79 A.D.3d 1281, 913 N.Y.S.2d 383
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 9, 2010
StatusPublished
Cited by19 cases

This text of 79 A.D.3d 1281 (People v. Cortese) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Cortese, 79 A.D.3d 1281, 913 N.Y.S.2d 383 (N.Y. Ct. App. 2010).

Opinion

Spain, J.

Appeals (1) from a judgment of the County Court of St. Lawrence County (Richards, J.), rendered December 22, 2008, upon a verdict convicting defendant of the crime of criminal contempt in the second degree (two counts), and (2) from a judgment of said court, rendered December 17, 2009, which revoked defendant’s probation and imposed a sentence of imprisonment.

Defendant and his wife (hereinafter the victim), the parents of two sons, were in the process of divorcing when, in January 2008, Family Court, St. Lawrence County issued a stay-away order of protection. The order directed defendant to stay away from the victim’s home (except when dropping off the children) and place of employment and, among other things, refrain from “assault, stalking, aggravated harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against [the victim].” On March 29, 2008, while that order of protection was in effect, defendant was arrested following confrontations with the victim inside and then outside of the police station in the Village of Massena, St. Lawrence County. After a jury trial, defendant was convicted of two counts of criminal contempt in the second degree and sentenced in December 2008 to three years of probation for each conviction and to time served, to run concurrently. Defendant now appeals that judgment.

In June 2009, defendant was charged with violating the conditions of probation by having pleaded guilty to disorderly conduct in May 2009, failing to contact the local mental health clinic or to attend the local offender accountability program, and other misconduct. After a hearing, County Court found that defendant had violated two conditions of probation, revoked his probation and imposed consecutive one-year jail terms for each of his underlying 2008 second degree criminal contempt convictions. Defendant now also appeals from that judgment revoking his probation and imposing the jail sentence. We affirm both judgments.

Initially, defendant argues that the weight of the credible evidence failed to establish that he acted with the requisite intent to disobey the January 2008 order of protection as prescribed in that order and instead asserts that he engaged in verbal confrontations with the victim in order to protect his children and mother from her. As a different verdict would not have been unreasonable, we have weighed the conflicting testimonial [1283]*1283accounts of what transpired and independently assess the inferences to be drawn (see People v Bleakley, 69 NY2d 490, 495 [1987]; see also People v Romero, 7 NY3d 633, 643 [2006]).

Viewing the evidence in a neutral light, the testimony of the victim and police officers at the scene fully supports the finding that, having been served with the order of protection, defendant engaged in aggressive conduct and yelled threatening and profane language at the victim, in the police station and then again outside in the parking lot, requiring police intervention in both incidents. Defendant’s intent to disobey that order by intimidating and threatening the victim is readily inferrable from his conduct (see Penal Law § 15.05 [1]; People v Foster, 52 AD3d 957, 958-959 [2008], lv denied 11 NY3d 788 [2008]). The victim’s account was verified by the police officers, any minor inconsistencies were not material to the charges and, to a great extent, their account was confirmed by defendant’s witnesses. Defendant’s contrary testimony suggestive of his innocent intent was neither particularly believable nor corroborated by other witnesses. As such, the jury’s resolution of the witnesses’ respective credibility should be accorded great deference (see People v Portee, 56 AD3d 947, 949 [2008], lv denied 12 NY3d 820 [2009]), and we find that its verdict was supported by the weight of the credible evidence that he intentionally violated the order of protection in both locations (see Penal Law § 215.50 [3]).

Defendant’s claims of prosecutorial misconduct during the jury trial are unpreserved for our review, as no objections were raised before County Court (see People v Henry, 64 AD3d 804, 806 [2009], Iv denied 13 NY3d 860 [2009]). Given that a review of the cited errors fails to disclose that any of them operated to deprive defendant of due process or a fair trial, we decline to take corrective action in the interest of justice (see CPL 470.15 [3] [c]; see also People v Weber, 40 AD3d 1267, 1268 [2007], lv denied 9 NY3d 927 [2007]). Likewise, and contrary to his claim, defendant received meaningful representation (see People v Henry, 95 NY2d 563, 565-566 [2000]). The record discloses that counsel made appropriate pretrial motions and objections at trial, vigorously cross-examined witnesses and, despite defendant’s decision to testify against the advice of counsel, presented a viable defense that resulted in his acquittal of one of the higher counts. To the extent that defendant’s contentions are premised on counsel’s failure to object to instances of claimed prosecutorial misconduct, we are not persuaded given the lack of pervasive, flagrant or prejudicial misconduct (see People v Dickson, 58 AD3d 1016, 1018 [2009], lv denied 12 NY3d 852 [1284]*1284[2009] ; People v Weber, 40 AD3d at 1268). We note only that the prosecutor properly inquired, in a limited fashion, into defendant’s prior relationship with the Massena Police Department and any known motive for the officers to provide a false account of the incidents that would incriminate defendant, given defendant’s contrary testimony, and the burden was never shifted to defendant to explain their possible motive (see People v Allen, 13 AD3d 892, 897-898 [2004], lv denied 4 NY3d 883 [2005]; People v Overlee, 236 AD2d 133, 138-141 [1997], Iv denied 91 NY2d 976 [1998]).

With regard to his sentence upon his convictions, defendant contends that County Court violated Penal Law § 60.01 (2) (d) by imposing a sentence of probation in addition to and concurrently with “time served,” which had totaled 86 days of custody prior to sentencing. Defendant is correct that this statute authorizes a court to impose a split sentence of up to 60 days in jail for a misdemeanor, as here (or six months for a felony), together with a term of probation (Penal Law § 60.01 [2] [d]; see People v Zephrin, 14 NY3d 296, 299-300 [2010]), which together cannot exceed the authorized term of probation — here, three years (see Penal Law § 65.00 [3] [b] [i]). We agree with the reasoning of the Second Department, however, that “the mere fact that [a defendant] had been in custody for a period in excess of 60 days before sentencing did not render the sentence [to time served plus three years of probation] illegally excessive” (People v Conley, 70 AD3d 961, 962 [2010], lv denied 14 NY3d 886 [2010] ). In our view, County Court was using the phrase “time served” in its colloquial rather than technical sense, and should more accurately have expressly imposed a sentence of 60 days of imprisonment which was satisfied by the “time served” by defendant (86 days) while awaiting conviction and sentencing, combined with three years of probation; accordingly, we find that this is the sentence that was effectively imposed (see id.; People v Marinaccio, 297 AD2d 754, 755 [2002], lv denied 99 NY2d 560 [2002]).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Mosher
2024 NY Slip Op 05161 (Appellate Division of the Supreme Court of New York, 2024)
People v. Rivera (Juan)
69 Misc. 3d 130(A) (Appellate Terms of the Supreme Court of New York, 2020)
People v. McClenos
2019 NY Slip Op 3849 (Appellate Division of the Supreme Court of New York, 2019)
People v. Creech
2018 NY Slip Op 7201 (Appellate Division of the Supreme Court of New York, 2018)
People v. Tomassi (James)
Appellate Terms of the Supreme Court of New York, 2017
People v. Howland
130 A.D.3d 1105 (Appellate Division of the Supreme Court of New York, 2015)
People v. Aleman
119 A.D.3d 1319 (Appellate Division of the Supreme Court of New York, 2014)
PeoplevAleman
Appellate Division of the Supreme Court of New York, 2014
Trunov v. Holder
568 F. App'x 61 (Second Circuit, 2014)
United States v. Allen
Second Circuit, 2013
Enfinger v. State
123 So. 3d 535 (Court of Criminal Appeals of Alabama, 2012)
People v. Reid
97 A.D.3d 1037 (Appellate Division of the Supreme Court of New York, 2012)
People v. Audi
88 A.D.3d 1070 (Appellate Division of the Supreme Court of New York, 2011)
People v. Chambers
32 Misc. 3d 699 (City of New York Municipal Court, 2011)
People v. Clisby
82 A.D.3d 1288 (Appellate Division of the Supreme Court of New York, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
79 A.D.3d 1281, 913 N.Y.S.2d 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cortese-nyappdiv-2010.