PEOPLE v. ROMAN (2004)

Defendant appeals from a judgment convicting him upon a jury verdict of criminal contempt in the first degree (Penal Law § 215.51[b][iv] );  criminal contempt in the second degree (three counts) (§ 215.50[3] );  aggravated harassment in the second degree (four counts) (§ 240.30[1][a] );  and stalking in the fourth degree (three counts) (§ 120.45[1], [2], [3] ).   Defendant was sentenced to various terms of incarceration that, by operation of law (see § 70.35), are limited to the indeterminate term of incarceration of 2 to 4 years imposed upon defendant's conviction of criminal contempt in the first degree.   The sentencing court issued an order of protection for the benefit of the victim.

 By affirmatively requesting that Supreme Court submit charges of criminal contempt in the second degree as lesser included offenses of criminal contempt in the first degree, defendant has waived any claim of error with respect to such submission (see People v. Mills, 1 N.Y.3d 269, 274, 772 N.Y.S.2d 228, 804 N.E.2d 392;  People v. Richardson, 88 N.Y.2d 1049, 1051, 650 N.Y.S.2d 633, 673 N.E.2d 918;  People v. Ford, 62 N.Y.2d 275, 283, 476 N.Y.S.2d 783, 465 N.E.2d 322;  see also CPL 300.50[1] ).

 The evidence is legally sufficient (see People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672) to establish defendant's knowledge of the existence and contents of a temporary order of protection, more particularly, the conduct prohibited thereby (see People v. D'Angelo, 284 A.D.2d 146, 728 N.Y.S.2d 132, affd. 98 N.Y.2d 733, 750 N.Y.S.2d 811, 780 N.E.2d 496;  see also People v. Clark, 95 N.Y.2d 773, 775, 710 N.Y.S.2d 297, 731 N.E.2d 1105, rearg. denied 95 N.Y.2d 849, 713 N.Y.S.2d 524, 735 N.E.2d 1289;  cf. People v. McCowan, 85 N.Y.2d 985, 987, 629 N.Y.S.2d 163, 652 N.E.2d 909).   The evidence is likewise legally sufficient, and the verdict not against the weight of the evidence, on the issue of defendant's intent to “harass, annoy, threaten or alarm” the victim (Penal Law § 215.51 [b][iv] ) and to disobey or resist the temporary order of protection (§ 215.50 [3] ).   It is well established that a “defendant may be presumed to intend the natural and probable consequences of his actions (see People v. Getch, 50 N.Y.2d 456, 465 [429 N.Y.S.2d 579, 407 N.E.2d 425];  People v. Angelo M., 231 A.D.2d 925 [647 N.Y.S.2d 895], lv. denied 89 N.Y.2d 862 [653 N.Y.S.2d 285, 675 N.E.2d 1238], [89 N.Y.2d] 1087 [660 N.Y.S.2d 381, 682 N.E.2d 982] ), and ‘[i]ntent may be “inferred from the totality of conduct of the accused” ’ (People v. Mike, 283 A.D.2d 989, 989 [724 N.Y.S.2d 389], lv. denied 96 N.Y.2d 904 [730 N.Y.S.2d 802, 756 N.E.2d 90] )” (People v. Mahoney, 6 A.D.3d 1104, 1104, 776 N.Y.S.2d 402, lv. denied 3 N.Y.3d 660, 782 N.Y.S.2d 702, 816 N.E.2d 575).   Further, the evidence is legally sufficient, and the verdict not against the weight of the evidence, on the element of defendant's intent to annoy or alarm the victim in connection with defendant's conviction of aggravated harassment in the second degree (see § 240.30[1];  see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672).

 It was error for the prosecutor to ask defendant whether certain witnesses against him were lying (see People v. Paul, 212 A.D.2d 1020, 1021, 623 N.Y.S.2d 50, lv. denied 85 N.Y.2d 912, 627 N.Y.S.2d 335, 650 N.E.2d 1337;  People v. Barnes, 109 A.D.2d 179, 186, 491 N.Y.S.2d 864;  People v. Montgomery, 103 A.D.2d 622, 481 N.Y.S.2d 532).   Nonetheless, we cannot conclude that defendant was deprived of a fair trial by those isolated instances of prosecutorial misconduct (see People v. Wilson, 267 A.D.2d 1061, 1062, 700 N.Y.S.2d 787, lv. denied 94 N.Y.2d 908, 707 N.Y.S.2d 393, 728 N.E.2d 992).

 We agree with defendant's contention that the court erred in setting an expiration date on the order of protection in such a way as to fail to take into account creditable jail time.   We therefore modify the judgment by amending the order of protection, and we remit the matter to Supreme Court to determine the jail time credit to which defendant is entitled and to specify in the order of protection an expiration date that is three years from the date of expiration of the maximum term of the sentence (see People v. Grice, 300 A.D.2d 1005, 1006, 752 N.Y.S.2d 507, lv. denied 99 N.Y.2d 654, 760 N.Y.S.2d 119, 790 N.E.2d 293).

We have considered defendant's remaining contentions and conclude that they are unpreserved for our review and lacking in merit in any event.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by amending the order of protection and as modified the judgment is affirmed, and the matter is remitted to Supreme Court, Onondaga County, for further proceedings.

MEMORANDUM: