Opinion
07-06-2016
The PEOPLE, etc., respondent, v. Scott YOUNG, appellant.
Lynn W.L. Fahey, New York, NY (Jonathan M. Kratter of counsel), for appellant. Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
Lynn W.L. Fahey, New York, NY (Jonathan M. Kratter of counsel), for appellant.
Kenneth P. Thompson, District Attorney, Brooklyn, NY (Leonard Joblove and Diane R. Eisner of counsel), for respondent.
RUTH C. BALKIN, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ.
Appeal by the defendant from a judgment of the Supreme Court, Kings County (Leventhal, J.), rendered November 13, 2007, convicting him of stalking in the third degree, criminal contempt in the first degree (22 counts), stalking in the second degree, criminal possession of a weapon in the fourth degree, menacing in the second degree, criminal trespass in the second degree, endangering the welfare of a child, aggravated harassment in the second degree (2 counts), and criminal mischief in the third degree (2 counts), upon a jury verdict, and imposing sentence.
ORDERED that the judgment is modified, on the law, by vacating the convictions of criminal contempt in the first degree under counts 4, 5, 6, 7, 8, 9, 10, and 11 of the indictment, vacating the sentences imposed thereon, and dismissing those counts of the indictment; as so modified, the judgment is affirmed.
The defendant's challenges to the prosecutor's remarks during her opening statement and summation are unpreserved for appellate review, since he either failed to object to the remarks at issue, or made only general objections and failed to request further curative relief when his objections were sustained (see CPL 470.05[2] ; People v. Romero, 7 N.Y.3d 911, 912, 828 N.Y.S.2d 274, 861 N.E.2d 89 ). In any event, the defendant's contention is without merit, as the challenged remarks were either within the broad bounds of permissible rhetorical comment, fair comment on the evidence and the reasonable inferences to be drawn therefrom, or responsive to arguments presented in the defense summation (see People v. Blue, 136 A.D.3d 840, 840, 24 N.Y.S.3d 532 ; People v. Barber, 133 A.D.3d 868, 871, 22 N.Y.S.3d 63 ; People v. Lenihan, 125 A.D.3d 788, 789, 2 N.Y.S.3d 617 ; People v. Williams, 123 A.D.3d 1152, 1153, 997 N.Y.S.2d 499 ). Contrary to the defendant's contention, the prosecutor asking the jury to “send this defendant a message that he cannot ignore and find him guilty of all counts,” did not constitute a “safe streets” argument (see People v. Caba, 101 A.D.3d 896, 896, 954 N.Y.S.2d 909 ; People v. Ramos, 92 A.D.3d 445, 446, 938 N.Y.S.2d 54 ; People v. Lopez, 69 A.D.3d 958, 958, 892 N.Y.S.2d 787 ; People v. Clark, 52 A.D.3d 860, 863, 858 N.Y.S.2d 847 ). In addition, the prosecutor's remarks in summation could not have been interpreted by the jury as an instruction on the law, since the prosecutor had previously stated that the court would instruct them on the law, and because the court repeatedly advised the jurors that it would instruct them on the law (see People v. Din, 62 A.D.3d 1023, 1024, 879 N.Y.S.2d 577 ; People v. Giuca, 58 A.D.3d 750, 751, 871 N.Y.S.2d 709 ; People v. Delphin, 26 A.D.3d 343, 343, 812 N.Y.S.2d 552 ; People v. Rosenblitt, 198 A.D.2d 382, 383, 603 N.Y.S.2d 888 ). The defendant's contention that his convictions of criminal contempt in the first degree under Penal Law § 215.51(b)(iii) were not supported by legally sufficient evidence is unpreserved for appellate review (see CPL 470.05[2] ; People v. Hawkins, 11 N.Y.3d 484, 492, 872 N.Y.S.2d 395, 900 N.E.2d 946 ). In any event, viewing the evidence in the light most favorable to the prosecution (see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932 ), we find that it was legally sufficient to establish the defendant's guilt of those crimes 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, 348–349, 849 N.Y.S.2d 480, 880 N.E.2d 1 ), we accord great deference to the factfinder's opportunity to view the witnesses, hear the testimony, and observe demeanor (see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053 ; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 ). Upon reviewing the record here, we find that the verdict of guilt of those crimes was not against the weight of the evidence (see People v. Romero, 7 N.Y.3d 633, 826 N.Y.S.2d 163, 859 N.E.2d 902 ). The criminal contempt convictions were based on letters the defendant sent from prison to the victim. Although most of those letters did not contain explicit threats, the inherent menace in the letters becomes apparent when viewed in the broader context of the proof in this case (see People v. Clark, 65 A.D.3d 755, 758, 883 N.Y.S.2d 824 ; People v. McCowan, 45 A.D.3d 888, 889, 845 N.Y.S.2d 160 ). In particular, the evidence presented at trial established that the defendant repeatedly harassed and threatened the victim following their breakup, and, on one occasion, held a knife to her throat and threatened to kill her. Based on the foregoing, the jury's conclusion that the defendant intended to place the victim “in reasonable fear of physical injury, serious physical injury or death” (Penal Law § 215.51[b][iii] ) was not against the weight of the evidence (see People v. Roblee, 122 A.D.3d 1261, 1262–1263, 996 N.Y.S.2d 417 ; People v. Clark, 65 A.D.3d at 758, 883 N.Y.S.2d 824 ; People v. McCowan, 45 A.D.3d at 889, 845 N.Y.S.2d 160 ; People v. Tomasky, 36 A.D.3d 1025, 1026, 828 N.Y.S.2d 625 ).
Contrary to the People's contention, the defendant preserved for appellate review his assertion that eight of the nine counts charging him with criminal contempt in the first degree under Penal Law § 215.51(b)(iv) were multiplicitous (see People v. Jagdharry, 118 A.D.3d 722, 723, 987 N.Y.S.2d 91 ). An indictment is multiplicitous “ ‘when a single offense is charged in more than one count’ ” (People v. Barber, 133 A.D.3d at 869, 22 N.Y.S.3d 63, quoting People v. Alonzo, 16 N.Y.3d 267, 269, 920 N.Y.S.2d 302, 945 N.E.2d 495 ). In addition, “[a]n indictment cannot charge a defendant with more than one count of a crime that can be characterized as a continuing offense unless there has been an interruption in the course of conduct” (People v. Quinones, 8 A.D.3d 589, 589–590, 779 N.Y.S.2d 131 ; see People v. Hoffman, 130 A.D.3d 1152, 1153, 13 N.Y.S.3d 619 ; People v. Atta, 126 A.D.3d 713, 715–716, 5 N.Y.S.3d 455 ). Here, counts 4, 5, 6, 7, 8, 9, 10, and 11 of the indictment are multiplicitous of count three since those counts allege a continuous offense consisting of the defendant's repeated telephone calls, over a nine-month period, with the intent to harass, annoy, threaten, or alarm the victim (see Penal Law § 215.51 [b][iv] ). The dates used by the prosecution to divide the counts did not establish that there was an interruption in the course of conduct (see People v. Beltran, 110 A.D.3d 153, 163, 970 N.Y.S.2d 289 ; People v. Quinones, 8 A.D.3d at 590, 779 N.Y.S.2d 131 ). Although the People are correct that dismissal of the multiplicitous counts would have no effect on the length of the defendant's incarceration since the defendant received concurrent sentences on the counts at issue, those convictions were “ ‘an impermissible punishment’ ” (People v. Campbell, 120 A.D.3d 827, 828, 991 N.Y.S.2d 341, quoting Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 84 L.Ed.2d 740 ), and therefore, must be vacated.
Finally, the sentence imposed was not excessive (see People v. Suitte, 90 A.D.2d 80, 455 N.Y.S.2d 675 ).