The People of the State of New York, Respondent, v. Victor Duperroy, Defendant–Appellant. (2011)

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Judgment, Supreme Court, New York County (A. Kirke Bartley, Jr., J.), rendered February 24, 2010, convicting defendant, after a jury trial, of two counts of criminal contempt in the first degree, and two counts of criminal contempt in the second degree, and sentencing him to an aggregate term of 11/212 to 3 years, unanimously modified, on the law, to the extent of vacating both convictions of second-degree contempt, and dismissing those counts, and otherwise affirmed.

The court properly exercised its discretion in admitting uncharged crimes evidence.   This case involved longstanding and ongoing domestic conflict, and many of the counts submitted to the jury required proof that defendant intended to instill fear, harass, or otherwise inflict psychological injury on his wife.   Defendant's extensive history of threatening and violent conduct was highly probative of intent and motive, and it provided valuable background information (see People v. Dorm, 12 NY3d 16, 19 [2009];  People v. Garvin, 37 AD3d 372 [2007], lv denied 8 N.Y.2d 984 [2007] ).   The probative value of this evidence outweighed its prejudicial effect, which was minimized by the court's thorough instructions.   In any event, any error in receipt of this evidence was harmless.

The People concede that defendant is entitled to dismissal of the second-degree contempt counts as lesser included offenses of the first-degree counts.   Defendant's remaining double jeopardy argument is unpreserved (see People v. Gonzalez, 99 N.Y.2d 76, 82–83 [2002];  People v. Jordan, 77 AD3d 405 [2010], lv denied 15 NY3d 953 [2010] ), and we decline to review it in the interest of justice.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK