THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. BRIAN CURRY DEFENDANT APPELLANT (2011)

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 three counts of aggravated criminal contempt (Penal Law § 215.52 [3] ) and one count of aggravated harassment in the second degree (§ 240.30[1] [a] ), based upon evidence that he wrote a series of threatening letters to his ex-girlfriend, her mother, and his teenaged daughter.   Contrary to the contention of defendant, County Court properly admitted in evidence additional letters to establish his identity as the author of the letters at issue (see generally People v. Molineux, 168 N.Y. 264, 293-294).   Defendant had previously pleaded guilty to criminal contempt on two occasions, admitting that he sent letters threatening one of the victims in this case.   The People established the similarities between the letters in those cases and the ones at issue here, including their content, writing style, paper, and envelopes, and they also established that in all cases defendant had sent multiple, nearly identical letters on the same day.   Thus, the People presented clear and convincing evidence that defendant committed the prior crimes by using a distinctive and unique modus operandi, which was sufficiently similar to the manner in which the crimes herein were committed to be probative of defendant's identity as the perpetrator (see generally People v. Mateo, 93 N.Y.2d 327, 332;  People v. Alvino, 71 N.Y.2d 233, 242;  People v. Robinson, 68 N.Y.2d 541, 549-550).   Consequently, the court properly concluded that

“ ‘the mere proof that the defendant had committed [the prior] similar act[s was] highly probative of the fact that he committed the one charged’ “ (People v. Allweiss, 48 N.Y.2d 40, 47-48, quoting People v. Condon, 26 N.Y.2d 139, 144).

Viewing the evidence in light of the elements of the crimes in this bench trial (see People v. Danielson, 9 NY3d 342, 349), we conclude that the verdict is not against the weight of the evidence (see generally People v. Bleakley, 69 N.Y.2d 490, 495).   Although there was conflicting testimony with respect to whether the handwriting on the letters at issue matched that of defendant, and thus “an acquittal would not have been unreasonable” (Danielson, 9 NY3d at 348), we conclude that, “[b]ased on the weight of the credible evidence, the court ․ was justified in finding the defendant guilty beyond a reasonable doubt” (id.;   see People v. Romero, 7 NY3d 633, 642-643).

“ ‘Great deference is to be accorded to the fact[ ]finder's resolution of credibility issues based upon its superior vantage point and its opportunity to view witnesses, observe demeanor and hear the testimony’ “ (People v. Gritzke, 292 A.D.2d 805, 805-806, lv. denied 98 N.Y.2d 697;  see People v. Mosley, 59 AD3d 961, lv denied 12 NY3d 918, 13 NY3d 861), and we perceive no reason to disturb the court's credibility determinations.

Finally, the sentence is not unduly harsh or severe.

Patricia L. Morgan

Clerk of the Court