Opinion
2017-05578 Ind. 2026/15
06-30-2021
The People, etc., respondent, v. Herbie T. White, appellant.
Laurette D. Mulry, Riverhead, NY (Louis E Mazzola of counsel), for appellant, and appellant pro se. Timothy D. Sini, District Attorney, Riverhead, NY (Thomas C. Costello and Glenn Green of counsel), for respondent.
Argued - June 8, 2021
D66850 Q/afa
Laurette D. Mulry, Riverhead, NY (Louis E Mazzola of counsel), for appellant, and appellant pro se.
Timothy D. Sini, District Attorney, Riverhead, NY (Thomas C. Costello and Glenn Green of counsel), for respondent.
MARK C. DILLON, J.P. LEONARD B. AUSTIN COLLEEN D. DUFFY BETSY BARROS, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the County Court, Suffolk County (Timothy P. Mazzei, J.), rendered April 18, 2017, convicting him of criminal contempt in the first degree (three counts), criminal contempt in the second degree (two counts), and endangering the welfare of a child (three counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is affirmed.
The defendant was convicted after his wife's niece and nephew testified that he lived with them, in violation of orders of protection, and that he physically and mentally abused them.
Viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 N.Y.2d 620, 621), we find that it was legally sufficient to establish the defendant's guilt of criminal contempt in the first degree beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence (see CPL 470.15[5]; People v Danielson, 9 N.Y.3d 342, 348), we nevertheless accord great deference to the jury's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v Mateo, 2 N.Y.3d 383, 410; People v Bleakley, 69 N.Y.2d 490, 495). Upon reviewing the record here, we are satisfied that the verdict of guilt was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633).
The Supreme Court's jury charge regarding contempt in the first degree, which was in accordance with the language contained in the criminal jury instructions, was proper (see CJI2d [NY] Penal Law § 215.51[b][v]; People v Mateo, 2 N.Y.3d at 416 n 20; People v Grant, 170 A.D.3d 888, 889).
The defendant's challenge to certain comments made by the prosecutor during summation is only partially preserved for appellate review (see People v Banks, 74 A.D.3d 1214, 1215; People v Jones, 9 A.D.3d 374, 375). In any event, the prosecutor's comments regarding the fact that the subject children's mother was dead and that the defendant was manipulating the family court system, among other comments during summation, did not deprive the defendant of his right to a fair trial (see People v Martin, 161 A.D.3d 777, 778; People v Houston, 82 A.D.3d 1122, 1123).
The sentence imposed was not excessive (see People v Suitte, 90 A.D.2d 80).
The defendant's remaining contentions, raised in his pro se supplemental brief, are without merit
DILLON, JP, AUSTIN, DUFFY and BARROS, JJ, concur