Opinion
2011-10-25
The PEOPLE of the State of New York, Respondent,v.Victor DUPERROY, Defendant–Appellant.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg of counsel), for respondent.
Richard M. Greenberg, Office of the Appellate Defender, New York (Rosemary Herbert of counsel), for appellant.Cyrus R. Vance, Jr., District Attorney, New York (Caleb Kruckenberg of counsel), for respondent.
Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered February 24, 2010, convicting defendant, after a jury trial, of two counts of criminal contempt in the first degree, and two counts of criminal contempt in the second degree, and sentencing him to an aggregate term of 1 1/2 to 3 years, unanimously modified, on the law, to the extent of vacating both convictions of second-degree contempt, and dismissing those counts, and otherwise affirmed.
The court properly exercised its discretion in admitting uncharged crimes evidence. This case involved longstanding and ongoing domestic conflict, and many of the counts submitted to the jury required proof that defendant intended to instill fear, harass, or otherwise inflict psychological injury on his wife. Defendant's extensive history of threatening and violent conduct was highly probative of intent and motive, and it provided valuable background information ( see People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009]; People v. Garvin, 37 A.D.3d 372, 830 N.Y.S.2d 549 [2007], lv. denied 8 N.Y.3d 984, 838 N.Y.S.2d 487, 869 N.E.2d 663 [2007] ). The probative value of this evidence outweighed its prejudicial effect, which was minimized by the court's thorough instructions. In any event, any error in receipt of this evidence was harmless.
The People concede that defendant is entitled to dismissal of the second-degree contempt counts as lesser included offenses of the first-degree counts. Defendant's remaining double jeopardy argument is unpreserved ( see People v. Gonzalez, 99 N.Y.2d 76, 82–83, 751 N.Y.S.2d 830, 781 N.E.2d 894 [2002]; People v. Jordan, 77 A.D.3d 406, 908 N.Y.S.2d 51 [2010], lv. denied 15 N.Y.3d 953, 917 N.Y.S.2d 113, 942 N.E.2d 324 [2010] ), and we decline to review it in the interest of justice.