        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

466
KA 11-01065
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NOEL BARRIOS-RODRIGUEZ, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (KAREN C.
RUSSO-MCLAUGHLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (DAVID PANEPINTO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered April 25, 2011. The judgment convicted
defendant, upon a nonjury verdict, of criminal contempt in the first
degree.

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

     Memorandum: On appeal from a judgment convicting him following a
nonjury trial of criminal contempt in the first degree (Penal Law §
215.51 [c]), defendant contends that the evidence is legally
insufficient to establish that he intended to violate the no-contact
order of protection that had been issued in favor of the victim, and
that the verdict is against the weight of the evidence in that regard.
We reject those contentions. Even assuming, arguendo, that the victim
initiated the contact with defendant on the day in question, as
defendant contends, we note that the People presented evidence
establishing that defendant followed the victim outside the house in
which he was located and, after speaking to her briefly, he then
followed her to a nearby restaurant. The victim entered the
restaurant, where she telephoned the police. Shortly thereafter, the
police located defendant in a parking lot that was approximately a
quarter of a mile from the restaurant. Viewing the evidence in the
light most favorable to the People (see People v Contes, 60 NY2d 620,
621), we conclude that the evidence is legally sufficient to establish
that defendant intentionally violated the order of protection (see
generally People v Bleakley, 69 NY2d 490, 495). We further conclude
that, viewing the evidence in light of the elements of the crime in
this nonjury trial (see People v Danielson, 9 NY3d 342, 349), and
affording great deference to County Court’s credibility determinations
(see People v White, 43 AD3d 1407, 1408, lv denied 9 NY3d 1010), the
verdict is not against the weight of the evidence (see generally
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                                                         KA 11-01065

Bleakley, 69 NY2d at 495).

     There is no merit to defendant’s additional contention that the
court erred in denying his motion to set aside the verdict pursuant to
CPL 330.30. Even assuming, arguendo, that the victim’s testimony at
the persistent felony offender hearing constitutes newly discovered
evidence as defendant suggests, we conclude that the testimony is not
“of such character as to create a probability that had such evidence
been received at the trial the verdict would have been more favorable
to the defendant” (CPL 330.30 [3]). Finally, given defendant’s
significant criminal history, which includes five prior felony
convictions and multiple convictions based on his violation of court
orders, we perceive no basis to modify his sentence as a matter of
discretion in the interest of justice (see CPL 470.15 [6] [b]).




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
