Opinion
2015–1202 N CR
04-05-2018
The PEOPLE of the State of New York, Respondent, v. Terrence MARTINEZ, Appellant.
Joel S. Cohen, P.C. (Joel S. Cohen, New York and Yesenia M. Godoy of counsel), for appellant. Nassau County District Attorney (Laurie K. Gibbons and John B. Latella of counsel), for respondent.
Joel S. Cohen, P.C. (Joel S. Cohen, New York and Yesenia M. Godoy of counsel), for appellant.
Nassau County District Attorney (Laurie K. Gibbons and John B. Latella of counsel), for respondent.
PRESENT: ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ.
ORDERED that the judgment of conviction is affirmed.
On August 26, 2014, the People charged defendant with criminal contempt in the second degree ( Penal Law § 215.50 [3 ] ), alleging, among other things, that, at about 2:52 p.m. on that date, defendant had violated an order of protection by being present at the Freeport Memorial Library in violation of the order's mandate that defendant "stay away from the victim's ... place of employment." At a jury trial, the People's witnesses testified that the order of protection had issued upon the complaint of the victim that defendant, a family friend, had repeatedly engaged in inappropriate conduct towards her of a personal nature while she was working at the library; that the order of protection was in effect on August 26, 2014; and that, on that date, defendant was discovered seated in a lawn chair on library property 10–15 feet from the library entrance. Following the trial, defendant was convicted of criminal contempt in the second degree.
Defendant failed to preserve for appellate review his claims of error with respect to several incidents of alleged prosecutorial misconduct on summation, having either failed entirely to object or having raised only "a general one-word objection" ( People v. Read , 97 AD3d 702, 703 [2012] ; see CPL 470.05 [2 ]; People v. Tonge , 93 NY2d 838, 839–840 [1999] ; People v. Dien , 77 NY2d 885, 886 [1991] ; People v. Benson , 38 AD3d 563, 564 [2007] ; People v. Westwood , 53 Misc 3d 74, 81 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] ). To the extent that defendant's objections were sustained, defendant's failure "to take any further actions[,] such as requesting a curative instruction or moving for a mistrial" ( People v. Gibson , 134 AD3d 1512, 1512–1513 [2015] ; see e.g. People v. Medina , 53 NY2d 951, 953 [1981] ; People v. Singletary , 132 AD3d 914 [2015] ; People v. McMillan , 130 AD3d 651, 654–655 [2015], affd 29 NY3d 145 [2017] ), justifies an inference that defendant was satisfied with the court's responses to the objections (see e.g. People v. Heide , 84 NY2d 943, 944 [1994] ; People v. Leach, 90 AD3d 1072, 1073 [2011] ; People v. Brown , 139 AD3d 964, 966 [2016] ). Similarly, the District Court's grant of defendant's request that a statement be "stricken," an instruction the jury is presumed to have followed (see People v. Guay , 18 NY3d 16, 24 [2011] ; People v. Berg , 59 NY2d 294, 299–300 [1983] ; People v. Fuhrtz , 123 AD3d 735, 736 [2014] ), is a remedy presumed sufficient to "dissipat[e] any prejudice resulting from [an] improper comment" ( People v. Gouveia , 88 AD3d 814, 815 [2011] ).
In any event, the alleged summation errors, whether considered "singly" or "collectively" ( People v. Lane , 10 NY2d 347, 354 [1961] ; see e.g. People v. Anderson , 48 AD3d 896, 898 [2008] ), did not deprive defendant of a fair trial. As a general rule, counsel for either side "is to be afforded ‘the widest latitude by way of comment, denunciation or appeal in advocating his (or her) cause’ " ( People v. Santiago , 22 NY3d 740, 750 [2014], quoting People v. Ashwal , 39 NY2d 105, 109 [1976] ), the limits of which principally concern whether the comments address "relevant matters within the four corners of the evidence" ( People v. Williams , 29 NY3d 84, 88 [2017] ). In the case of prosecutorial advocacy, the People are entitled to fair comment on the evidence and the inferences to be drawn therefrom (see People v. Ashwal , 39 NY2d at 110 ; People v. Gomez , 153 AD3d 724, 725 [2017] ; People v. Hahn , 57 Misc 3d 147[A], 2017 NY Slip Op 51486[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017] ), and may respond with particularity to a defense counsel's summation arguments (see People v. Galloway , 54 NY2d 396, 399 [1981] ; People v. Sutton , 151 AD3d 763, 765 [2017] ; People v. Nanand , 137 AD3d 945, 947 [2016] ). In such cases, any prejudice is " ‘of defendant's own making’ " ( People v. Payne , 54 Misc 3d 138[A], 2017 NY Slip Op 50140[U], *2–3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017], quoting People v. Anthony , 24 NY2d 696, 704 [1969] ). Applying these general principles to the comments at issue, we find that the vast majority of the complained-of remarks represented fair comment on relevant evidence (see People v. Williams , 29 NY3d at 88 ), a proper response to defense counsel's summation argument, or were otherwise within the bounds of legitimate advocacy. Consequently, we also do not agree with defendant's contention that trial counsel was ineffective for having failed to object to certain of the complained-of remarks, since the objections would most certainly have been overruled (see e.g. People v. Archer , 82 AD3d 781, 781 [2011] ; People v. James , 72 AD3d 844, 845 [2010] ). In any event, given that the proof of guilt—which included the proof of notice of the content of the order of protection, and the observations, by multiple witnesses, that defendant was present at the victim's workplace when the order was in effect—was overwhelming, and, in light of the curative instructions and general legitimacy of the prosecutor's summation remarks, there is no significant probability that whatever residual prejudice may have remained contributed to the conviction (see People v. Crimmins , 36 NY2d 230, 242 [1975] ; People v. Pinckney , 27 AD3d 581, 582 [2006] ; People v. Michael , 52 Misc 3d 142[A], 2016 NY Slip Op 51196[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016] ).
In light of the quality of counsel's overall representation, including, among other things, conducting the voir dire with obvious familiarity with the pertinent facts and applicable law, exhibiting a reasonable strategy with respect to the conduct of the defense at the trial, an opening statement that highlighted anticipated weaknesses in the People's case, cross-examinations which sought to undermine the complainant's credibility with respect to her perceptions as to the threat that defendant's conduct represented, and questioning whether the terms of the order of protection could reasonably be construed to have informed defendant that his conduct would violate the order, as well as a summation that recapitulated these issues, it cannot be said that defense counsel's representation was "less than meaningful" ( People v. Benevento , 91 NY2d 708, 713 [1998] ). Having concluded that defendant was not denied the effective representation of counsel under the state standard, and "[b]ecause our state standard [for the effective representation of counsel] offers greater protection than the federal test" ( People v. Caban , 5 NY3d 143, 156 [2005] ; see also People v. Ozuna , 7 NY3d 913, 915 [2006] ), we "necessarily reject defendant's federal constitutional challenge" ( People v. Caban , 5 NY3d at 156 ; see e.g. People v. Ramos , 48 AD3d 984, 987–988 [2008] [where "the higher state standard (is) satisfied, (the argument that defendant was deprived of the effective assistance of counsel under the federal standard) necessarily falls"] ).
Defendant also argues that the portion of the order that required that he "stay away" from Ms. Sanchez's "business" or "place of employment," which mirrors the language contained in the statute ( CPL 530.13 [1 ] [a] ), was unconstitutional in that he was not thereby informed as to how far from the victim's place of business he was required to remain if he was to avoid violating the order. At the trial, defendant raised no facial or as applied constitutional challenge to CPL 530.13 (1) (a), and, thus, he has failed to preserve any such claims for appellate review (see e.g. People v. Pena , 28 NY3d 727, 730 [2017] ; People v. Iannelli , 69 NY2d 684, 685 [1986] ). In any event, absent proof that the Attorney General has been duly notified of such challenges (see Executive Law § 71 [1 ]; see also CPLR 1012 [b] [1] ), these issues are not properly before us (see Executive Law § 71 [3 ]; CPLR 1012 [b] [3]; Matter of Guidarelli v. Brassard , 88 AD3d 1147, 1149 [2011] ; People v. McKeehan , 2 AD3d 1421, 1422 [2003] ; Jefferds v. Ellis , 122 AD2d 595, 596 [1986] ).
We also cannot agree that defendant was deprived of his due process entitlements to reasonable notice of the proscribed conduct and to nonarbitrary enforcement. "In the absence of a specific valid order that has been disobeyed, there can be no contempt" (Matter of Holtzman v. Beatty , 97 AD2d 79, 82 [1983] ), and "[t]o sustain a finding of ... criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect" ( Matter of Department of Envtl. Protection of City of NY v. Department of Envtl. Conservation of State of NY , 70 NY2d 233, 240 [1987] ). "Any ambiguity in the court's order must be resolved in the defendant's favor" ( People v. Roblee , 70 AD3d 225, 228 [2009] ). Here, while the order of protection did not specify a minimum distance from Ms. Sanchez's place of employment defendant was to remain in order to obey the "stay away" mandate (cf. People v. Shortell , 105 AD3d 1078, 1079 [2013] [1000 feet from the victim's residence]; People v. Clisby , 82 AD3d 1288, 1288 [2011] [same] ), by no reasonable interpretation of the "stay away" provision, as " ‘measured by common understanding and practices’ " ( People v. Shack , 86 NY2d 529, 538 [1995], quoting United States v. Petrillo , 332 US 1, 8 [1947] ), could defendant have concluded that settling into a lawn chair on library property, 10–15 feet from the library entrance, represented conduct outside of the order's mandate. It is noted, finally, that it is irrelevant that defendant may have had no reason to know whether Ms. Sanchez was actually present in the library at the time of the conduct charged (see e.g. People v. Shortell , 105 AD3d 1078 ; People v. Clisby , 82 AD3d 1288 ; People v. Nuffer , 70 AD3d 1299, 1300 [2010] ).
Accordingly, the judgment of conviction is affirmed.
MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.