PEOPLE v. WINSTON

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Supreme Court, Appellate Division, Fourth Department, New York.

The PEOPLE of the State of New York, Respondent, v. Karen J. WINSTON, Defendant–Appellant.

52

Decided: February 01, 2019

PRESENT:  WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND WINSLOW, JJ. TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Defendant appeals from a judgment convicting her upon a jury verdict of criminal contempt in the second degree (Penal Law § 215.50[3] ) arising from her violation of an order of protection in favor of the victim.  We affirm.

Contrary to defendant's contention, we conclude that County Court properly permitted the People to introduce evidence of certain prior bad acts by defendant involving the victim pursuant to Molineux because “[t]he evidence was relevant as [necessary] ‘background material to enable the jury to understand ․ defendant's relationship with the [victim] and to explain the issuance of [the] order of protection’ ” (People v. Delaney, 138 A.D.3d 1420, 1420–1421, 30 N.Y.S.3d 434 [4th Dept. 2016], lv denied 28 N.Y.3d 928, 40 N.Y.S.3d 357, 63 N.E.3d 77 [2016];  see People v. Anderson, 120 A.D.3d 1548, 1548–1549, 993 N.Y.S.2d 215 [4th Dept. 2014], lv denied 24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155 [2014];  People v. Long, 96 A.D.3d 1492, 1493, 946 N.Y.S.2d 381 [4th Dept. 2012], lv denied 19 N.Y.3d 1027, 953 N.Y.S.2d 560, 978 N.E.2d 112 [2012];  see generally People v. Dorm, 12 N.Y.3d 16, 19, 874 N.Y.S.2d 866, 903 N.E.2d 263 [2009] ).  Additionally, the evidence “was relevant to establish defendant's motive and intent in committing the crimes charged ․ and to establish that defendant's violation of the order of protection was neither innocent nor inadvertent” (People v. Pytlak, 99 A.D.3d 1242, 1242–1243, 951 N.Y.S.2d 812 [4th Dept. 2012], lv denied 20 N.Y.3d 988, 958 N.Y.S.2d 703, 982 N.E.2d 623 [2012];  see People v. Serrano, 164 A.D.3d 1658, 1659, 84 N.Y.S.3d 654 [4th Dept. 2018], lv denied 32 N.Y.3d 1129, ––– N.Y.S.2d ––––, ––– N.E.2d –––– [2018];  Long, 96 A.D.3d at 1493, 946 N.Y.S.2d 381).

Contrary to defendant's further contention, we conclude that, “[a]lthough the court arguably could have better recited its discretionary balancing of the probity of such evidence against its potential for prejudice ․, viewing the record in its entirety, the court conducted the requisite balancing test” (People v. Lawrence, 141 A.D.3d 1079, 1081, 34 N.Y.S.3d 827 [4th Dept. 2016], lv denied 28 N.Y.3d 1029, 45 N.Y.S.3d 380, 68 N.E.3d 109 [2016] [internal quotation marks omitted];  see People v. Holmes, 104 A.D.3d 1288, 1290, 960 N.Y.S.2d 831 [4th Dept. 2013], lv denied 22 N.Y.3d 1041, 981 N.Y.S.2d 375, 4 N.E.3d 387 [2013] ).  Moreover, the court properly determined that the probative value of the evidence outweighed its potential for prejudice (see Serrano, 164 A.D.3d at 1659, 84 N.Y.S.3d 654;  Pytlak, 99 A.D.3d at 1243, 951 N.Y.S.2d 812).

As defendant correctly concedes, she did not preserve for our review her contention that the court erred in failing to provide limiting instructions with respect to the Molineux evidence (see Serrano, 164 A.D.3d at 1659, 84 N.Y.S.3d 654), and we decline to exercise our power to review that contention as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).

Finally, defendant failed to preserve for our review her further evidentiary challenge to portions of the victim's testimony (see People v. Mitchell, 144 A.D.3d 1598, 1599, 41 N.Y.S.3d 805 [4th Dept. 2016] ), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15[6][a] ).