Summary
affirming conviction under § 215.51(b) where defendant, in court, threatened to kill his former girlfriend and spat at her
Summary of this case from Jaegly v. CouchOpinion
KA 01-00133
February 7, 2003.
Appeal from a judgment of Genesee County Court (Noonan, J.), entered November 16, 2000, convicting defendant after a jury trial of criminal contempt in the first degree.
GARY A. HORTON, PUBLIC DEFENDER, BATAVIA (BRIDGET L. FIELD OF COUNSEL), For Defendant-appellant.
LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF COUNSEL), For Plaintiff-respondent.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, KEHOE, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed.
Memorandum:
Defendant appeals from a judgment convicting him after a jury trial of criminal contempt in the first degree (Penal Law § 215.51 [b] [v]) arising from his violation of an order of protection. Defendant threatened to kill his former girlfriend in the courtroom at the conclusion of a Family Court proceeding regarding their children, and he spat at her. Contrary to defendant's contention, County Court properly allowed the victim to testify that defendant had threatened her while she was in the waiting area prior to the commencement of the Family Court proceeding. The court properly determined that the testimony was relevant to defendant's motive and that its prejudicial effect did not outweigh its probative value (see People v. Alvino, 71 N.Y.2d 233, 241-242). We further conclude that the testimony was necessary to complete the narrative of the victim's account of the events underlying the crime (see People v. Singletary, 302 A.D.2d 952 [Feb. 7, 2003]; People v. Ortiz, 273 A.D.2d 482, 483, lv denied 96 N.Y.2d 737). Although we agree with defendant that the People should have sought a ruling at the Ventimiglia hearing with respect to the admissibility of that testimony (see People v. Ventimiglia, 52 N.Y.2d 350, 362; People v. Heath, 175 A.D.2d 562, 563), we conclude that any error in admitting the testimony is harmless. The evidence of defendant's guilt is overwhelming and there is no significant probability that the jury would have acquitted defendant if that evidence had not been admitted (see People v. Crimmins, 36 N.Y.2d 230, 241-242).
The sentence is neither unduly harsh nor severe.