PEOPLE v. PYTLAK

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The PEOPLE of the State of New York, Respondent, v. Paul PYTLAK, Defendant–Appellant.

Decided: October 05, 2012

PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ. The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant. Frank A. Sedita, III, District Attorney, Buffalo (David A. Heraty of Counsel), for Respondent.

Defendant appeals from a judgment convicting him upon a jury verdict of three counts of aggravated criminal contempt (Penal Law § 215.52 [3] ) and two counts of stalking in the fourth degree (§ 120.45[2] ). We reject defendant's contention that County Court erred in admitting testimony concerning defendant's prior conduct toward the victim. That testimony was relevant to establish defendant's motive and intent in committing the crimes charged (see People v. Long, 96 A.D.3d 1492, 1493, 946 N.Y.S.2d 381; People v. Perez, 67 A.D.3d 1324, 1325–1326, 888 N.Y.S.2d 689, lv. denied 13 N.Y.3d 941, 895 N.Y.S.2d 331, 922 N.E.2d 920; People v. Freece, 46 A.D.3d 1428, 1428–1429, 848 N.Y.S.2d 468, lv. denied 10 N.Y.3d 811, 857 N.Y.S.2d 44, 886 N.E.2d 809); to establish that the victim had a reasonable fear of physical injury (see § 215.51[b][iii]; People v. Crump, 77 A.D.3d 1335, 1336, 909 N.Y.S.2d 252, lv. denied 16 N.Y.3d 857, 923 N.Y.S.2d 419, 947 N.E.2d 1198); and to establish that defendant's violation of the order of protection was neither innocent nor inadvertent (see People v. Perez, 49 A.D.3d 903, 903, 854 N.Y.S.2d 497, lv. denied 10 N.Y.3d 938, 862 N.Y.S.2d 344, 892 N.E.2d 410; see also People v. Guiteau, 267 A.D.2d 1094, 701 N.Y.S.2d 230, lv. denied 94 N.Y.2d 920, 708 N.Y.S.2d 359, 729 N.E.2d 1158). Moreover, the court properly determined that the probative value of that testimony outweighed its potential for prejudice (see People v. Dizak, 93 A.D.3d 1182, 1184, 940 N.Y.S.2d 408, lv. denied 19 N.Y.3d 972, 950 N.Y.S.2d 355, 973 N.E.2d 765; People v. Ditucci, 81 A.D.3d 1249, 1250, 916 N.Y.S.2d 424, lv. denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097; see generally People v. Alvino, 71 N.Y.2d 233, 241–242, 525 N.Y.S.2d 7, 519 N.E.2d 808).

Defendant's challenge to the legal sufficiency of the evidence with respect to the conviction of aggravated criminal contempt is not preserved for our review because he failed to renew his motion for a trial order of dismissal after presenting proof (see People v. Hines, 97 N.Y.2d 56, 61, 736 N.Y.S.2d 643, 762 N.E.2d 329, rearg. denied 97 N.Y.2d 678, 738 N.Y.S.2d 292, 764 N.E.2d 396). In any event, defendant's challenge lacks merit (see generally People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672) and, viewing the evidence in light of the elements of the crime of aggravated criminal contempt as charged to the jury (see People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1), we reject defendant's further contention that the verdict is against the weight of the evidence with respect to that crime (see People v. Curry, 82 A.D.3d 1650, 1650–1651, 921 N.Y.S.2d 420, lv. denied 17 N.Y.3d 805, 929 N.Y.S.2d 565, 953 N.E.2d 803; People v. Van Duser [Appeal No. 2], 277 A.D.2d 1034, 1035, 716 N.Y.S.2d 197, lv. denied 96 N.Y.2d 739, 722 N.Y.S.2d 807, 745 N.E.2d 1030; see generally Bleakley, 69 N.Y.2d at 495, 515 N.Y.S.2d 761, 508 N.E.2d 672). “[T]he jury was in the best position to assess the credibility of the witnesses and, on this record, it cannot be said that the jury failed to give the evidence the weight it should be accorded” (People v. Orta, 12 A.D.3d 1147, 1147, 784 N.Y.S.2d 812, lv. denied 4 N.Y.3d 801, 795 N.Y.S.2d 176, 828 N.E.2d 92).

Finally, we reject defendant's contention that he was denied effective assistance of counsel. Because the evidence is legally sufficient to support defendant's conviction of aggravated criminal contempt, it cannot be said that defense counsel's failure to renew the motion for a trial order of dismissal constitutes ineffective assistance of counsel (see People v. Holt, 93 A.D.3d 1304, 1305, 940 N.Y.S.2d 500; People v. Washington, 60 A.D.3d 1454, 1455, 875 N.Y.S.2d 732, lv. denied 12 N.Y.3d 922, 884 N.Y.S.2d 703, 912 N.E.2d 1084; see generally People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400). Also, defendant has failed to “demonstrate the absence of strategic or other legitimate explanations” for defense counsel's failure to obtain the victim's mental health records (People v. Rivera, 71 N.Y.2d 705, 709, 530 N.Y.S.2d 52, 525 N.E.2d 698; see People v. Castleberry, 265 A.D.2d 921, 921–922, 697 N.Y.S.2d 215, lv. denied 94 N.Y.2d 902, 707 N.Y.S.2d 386, 728 N.E.2d 985). Based on the record before us, we conclude that defendant received meaningful representation (see generally People v. Benevento, 91 N.Y.2d 708, 712–713, 674 N.Y.S.2d 629, 697 N.E.2d 584; Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

MEMORANDUM: