Opinion
407 KA 20-00077
05-07-2021
The PEOPLE of the State of New York, Respondent, v. Johnny Q. RUSSELL, Defendant-Appellant.
KATHLEEN E. CASEY, BARKER, FOR DEFENDANT-APPELLANT. BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
KATHLEEN E. CASEY, BARKER, FOR DEFENDANT-APPELLANT.
BRIAN D. SEAMAN, DISTRICT ATTORNEY, LOCKPORT (LAURA T. JORDAN OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him, after a bench trial, of criminal contempt in the second degree ( Penal Law § 215.50 [3] ) and harassment in the second degree (§ 240.26 [1]), arising out of an incident in which defendant raised his fist toward his ex-girlfriend in violation of an order of protection requiring him to stay away from her. We affirm.
Defendant's contention that the evidence is legally insufficient to support his conviction is unpreserved because his motion for a trial order of dismissal was not " ‘specifically directed’ at the error being urged" on appeal ( People v. Hawkins , 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 [2008] ; see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ; People v. Sanders , 171 A.D.3d 1460, 1461, 99 N.Y.S.3d 149 [4th Dept. 2019], lv denied 33 N.Y.3d 1108, 106 N.Y.S.3d 692, 130 N.E.3d 1302 [2019] ).
We further conclude that, viewing the evidence in light of the elements of the crimes in this nonjury trial (see People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), 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 [1987] ). On the record before us, the testimony adduced at trial, and any inconsistencies contained therein, merely "presented issues of credibility for the factfinder to resolve" ( People v. Williams , 179 A.D.3d 1502, 1503, 118 N.Y.S.3d 847 [4th Dept. 2020], lv denied 35 N.Y.3d 995, 125 N.Y.S.3d 635, 149 N.E.3d 396 [2020] ; see People v. Withrow , 170 A.D.3d 1578, 1579, 95 N.Y.S.3d 696 [4th Dept. 2019], lv denied 34 N.Y.3d 940, 109 N.Y.S.3d 740, 133 N.E.3d 444 [2019], reconsideration denied 34 N.Y.3d 1020, 114 N.Y.S.3d 745, 138 N.E.3d 474 [2019] ), and we see no reason to disturb Supreme Court's credibility determinations here.
Finally, we conclude that the sentence is not unduly harsh or severe.