Opinion
2014-02-14
The PEOPLE of the State of New York, Respondent v. Adam M. WERTMAN, Defendant–Appellant.
Charles A. Marangola, Moravia, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Heather M. Destefano of Counsel), for Respondent.
Charles A. Marangola, Moravia, for Defendant–Appellant. Jon E. Budelmann, District Attorney, Auburn (Heather M. Destefano of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS AND WHALEN, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a nonjury verdict of, inter alia, five counts of aggravated criminal contempt (Penal Law § 215.52[3] ) and three counts of criminal obstruction of breathing or blood circulation (§ 121.11[a] ). Defendant failed to preserve for our review his challenge to the legal sufficiency of the evidence inasmuch as he failed to renew his motion for a trial order of dismissal after presenting evidence ( see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329,rearg. denied97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, defendant's challenge is without merit. “[T]he victim's testimony constituted ‘competent evidence which, if accepted as true, would establish every element of [the] offense[s] charged’ ” ( People v. Smith, 41 A.D.3d 1093, 1094, 839 N.Y.S.2d 557,lv. denied9 N.Y.3d 1039, 852 N.Y.S.2d 24, 881 N.E.2d 1211, quoting CPL 70.10[1]; see People v. Pettengill, 36 A.D.3d 1070, 1071, 828 N.Y.S.2d 643,lv. denied8 N.Y.3d 948, 836 N.Y.S.2d 559, 868 N.E.2d 242;People v. Liggins, 2 A.D.3d 1325, 1326, 770 N.Y.S.2d 263). Contrary to defendant's contention, it cannot be said that the victim's testimony was “manifestly untrue, physically impossible, contrary to experience, or self-contradictory” ( People v. Harris, 56 A.D.3d 1267, 1268, 868 N.Y.S.2d 448,lv. denied11 N.Y.3d 925, 874 N.Y.S.2d 10, 902 N.E.2d 444;see People v. Latorre, 94 A.D.3d 1429, 1430, 942 N.Y.S.2d 390,lv. denied19 N.Y.3d 998, 951 N.Y.S.2d 474, 975 N.E.2d 920,reconsideration denied20 N.Y.3d 987, 958 N.Y.S.2d 702, 982 N.E.2d 622).
Viewing the evidence in light of the elements of the crimes in this bench trial ( see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that the verdict is not against the weight of the evidence ( see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). Although a different verdict would not have been unreasonable ( see Danielson, 9 N.Y.3d at 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we conclude that, “[b]ased on the weight of the credible evidence, [County C]ourt ... was justified in finding the defendant guilty beyond a reasonable doubt” ( id.; see People v. Romero, 7 N.Y.3d 633, 642–643, 826 N.Y.S.2d 163, 859 N.E.2d 902). “ ‘Great deference is to be accorded to the fact [ ]finder's resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony’ ” ( People v. Gritzke, 292 A.D.2d 805, 805–806, 738 N.Y.S.2d 643,lv. denied98 N.Y.2d 697, 747 N.Y.S.2d 415, 776 N.E.2d 4), and we perceive no reason to disturb the court's credibility determinations.
Contrary to the further contention of defendant, we conclude that the court did not err in its Molineux ruling in allowing the People to introduce testimony concerning defendant's prior acts of domestic violence against the victim. That testimony was “relevant to provide background information concerning the context and history of defendant's relationship with the victim” ( People v. Wolff, 103 A.D.3d 1264, 1265, 962 N.Y.S.2d 529,lv. denied21 N.Y.3d 948, 968 N.Y.S.2d 10, 990 N.E.2d 144;see People v. Meseck, 52 A.D.3d 948, 950, 860 N.Y.S.2d 263,lv. denied11 N.Y.3d 739, 864 N.Y.S.2d 397, 894 N.E.2d 661;People v. Nunez, 51 A.D.3d 1398, 1399–1400, 857 N.Y.S.2d 854,lv. denied11 N.Y.3d 792, 866 N.Y.S.2d 618, 896 N.E.2d 104), and it was also relevant to the issue of defendant's intent ( see People v. Crump, 77 A.D.3d 1335, 1336, 909 N.Y.S.2d 252,lv. denied16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198;People v. Williams, 29 A.D.3d 1217, 1219, 815 N.Y.S.2d 330,lv. denied7 N.Y.3d 797, 821 N.Y.S.2d 827, 854 N.E.2d 1291). Further, the probative value of such testimony exceeded its potential for prejudice ( see Wolff, 103 A.D.3d at 1266, 962 N.Y.S.2d 529;Crump, 77 A.D.3d at 1336, 909 N.Y.S.2d 252;Nunez, 51 A.D.3d at 1399–1400, 857 N.Y.S.2d 854).
We reject defendant's further contention that the court's Sandoval ruling constituted an abuse of discretion ( see People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 314 N.E.2d 413). Defendant's “intentional violation of prior court orders bore on his honesty, truthfulness and willingness to advance his own interests at the expense of society, all bearing on his testimonial credibility” ( People v. Olson, 110 A.D.3d 1373, 1375, 974 N.Y.S.2d 608;see People v. Salsbery, 78 A.D.3d 1624, 1626, 911 N.Y.S.2d 547,lv. denied16 N.Y.3d 836, 921 N.Y.S.2d 200, 946 N.E.2d 188;People v. Foster, 52 A.D.3d 957, 960–961, 860 N.Y.S.2d 273,lv. denied11 N.Y.3d 788, 866 N.Y.S.2d 614, 896 N.E.2d 100), and “[t]he similarity between the prior convictions and the instant crimes does not by itself preclude cross-examination concerning those prior convictions” ( People v. Hammond, 84 A.D.3d 1726, 1726–1727, 922 N.Y.S.2d 706,lv. denied17 N.Y.3d 816, 929 N.Y.S.2d 805, 954 N.E.2d 96;see People v. Hayes, 97 N.Y.2d 203, 208, 738 N.Y.S.2d 663, 764 N.E.2d 963;People v. Paige, 88 A.D.3d 912, 912, 931 N.Y.S.2d 262,lv. denied18 N.Y.3d 885, 939 N.Y.S.2d 755, 963 N.E.2d 132). Although defendant contends that the record does not establish that the court properly balanced the probative value of his prior convictions against their potential for undue prejudice, “it is well settled that ‘an exercise of a trial court's Sandoval discretion should not be disturbed merely because the court did not provide a detailed recitation of its underlying reasoning ..., particularly where, as here, the basis of the court's decision may be inferred from the parties' arguments' ” ( People v. Mull, 89 A.D.3d 1445, 1445, 932 N.Y.S.2d 635,lv. denied19 N.Y.3d 965, 950 N.Y.S.2d 117, 973 N.E.2d 215, quoting People v. Walker, 83 N.Y.2d 455, 459, 611 N.Y.S.2d 118, 633 N.E.2d 472).
Defendant further contends that the court abused its discretion in denying his late request to call a particular individual as an alibi witness. We note, however, that defendant waived that contention because, prior to jury selection, defense counsel advised the court that he did not intend to call that individual as a witness and thus that the court “[did not] need to address any issues” with respect to such individual ( see generally People v. Hamilton, 96 A.D.3d 1518, 1519, 947 N.Y.S.2d 705,lv. denied19 N.Y.3d 997, 951 N.Y.S.2d 473, 975 N.E.2d 919;People v. Harris, 97 A.D.3d 1111, 1112, 948 N.Y.S.2d 512,lv. denied19 N.Y.3d 1026, 953 N.Y.S.2d 559, 978 N.E.2d 111).
Finally, we reject defendant's challenge to the severity of the sentence. The court imposed the minimum term of incarceration allowed on defendant's conviction, as a second felony offender, of aggravated criminal contempt, and the terms of incarceration imposed on the remaining convictions were directed to run concurrently thereto.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.