                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   106290
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

LATROY WOMACK,
                    Appellant.
________________________________


Calendar Date:   September 15, 2016

Before:   Peters, P.J., Egan Jr., Lynch, Rose and Aarons, JJ.

                             __________


     Timothy S. Brennan, Schenectady, for appellant.

      Robert M. Carney, District Attorney, Schenectady (Peter H.
Willis of counsel), for respondent.

                             __________


Aarons, J.

      Appeal from a judgment of the County Court of Schenectady
County (Giardino, J.), rendered October 2, 2013, upon a verdict
convicting defendant of the crimes of burglary in the second
degree, aggravated criminal contempt (two counts) and assault in
the third degree.

      Defendant was charged in a multi-count indictment stemming
from his assault on the victim, the mother of one of his children
and with whom he had a physically abusive relationship.
Following a jury trial, defendant was convicted of burglary in
the second degree, two counts of aggravated criminal contempt and
assault in second degree. County Court thereafter sentenced
defendant, as a second felony offender, to concurrent prison
terms, the greatest of which was 10 years, followed by five years
                               -2-                106290

of postrelease supervision.   Defendant now appeals.   We affirm.

      Defendant contends that the proof was legally insufficient
as to the element of intent for the conviction for burglary in
the second degree. Burglary in the second degree requires that
the People prove that defendant "knowingly enter[ed] or
remain[ed] unlawfully in a [dwelling] with intent to commit a
crime therein" (Penal Law § 140.25 [2]). "[I]ntent may be
inferred from the circumstances of [defendant's] unlawful entry,
unexplained presence on the premises, and actions and statements
when confronted by police or the property owner" (People v
Ostrander, 46 AD3d 1217, 1218 [2007]; see People v Lewis, 5 NY3d
546, 552 [2005]; People v Peterson, 118 AD3d 1151, 1152 [2014],
lvs denied 24 NY3d 1087 [2014]). It is not necessary for the
People to prove that defendant had the intent to commit a
particular crime when entering or remaining in the dwelling (see
People v Cajigas, 19 NY3d 697, 701 [2012]; People v Briggs, 129
AD3d 1201, 1203 [2015], lv denied 26 NY3d 1038 [2015]).

      The trial evidence establishes that a police officer went
to the victim's house in response to a domestic violence call.
While en route, the responding officer was flagged down by a
cable technician who had just been at the house and heard
furniture being thrown, yelling between the victim and defendant,
and the victim screaming at defendant to "get out." The
technician directed the responding officer to the victim's house.
Upon arrival, the officer noticed markings on the victim's face
and described her as frantic, crying, upset and scared. The
victim, who was six months pregnant, yelled "he went out the
back" and "he came in and beat [me] up." In response to the
officer's inquiry as to who did this to her, the victim
identified defendant. The officer secured the house and saw that
it was disheveled. The victim was taken to the hospital where
she was treated for bruising and bite marks on her body. Later
that afternoon, a police sergeant was dispatched to the victim's
apartment based upon a report that defendant was seen entering
the victim's house through a window. When the sergeant arrived,
he saw a window screen on the ground lying against the house, and
he observed defendant running on top of garbage cans. The
sergeant and another officer who arrived at the scene pursued
defendant and arrested him.
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      At the time of the assault, two orders of protection were
in effect against defendant. They specifically directed
defendant to stay away from the victim and her house and to
refrain from, among other things, assaulting or harassing her.
Defendant, notwithstanding his awareness of the orders of
protection, did not dispute being at the victim's house.
According to defendant, while arguing with the victim, he
"smooshed her in the face."

      Viewing the evidence in a light most favorable to the
People, we conclude that there was legally sufficient proof as to
the element of intent. Based on the foregoing, the jury could
infer that when defendant entered the victim's house, he intended
to assault her in contravention of the orders of protection and
in a manner that went beyond the stay-away aspects of the
protective orders (see People v Cajigas, 19 NY3d at 702; People v
Lewis, 5 NY3d at 552; People v Peterson, 118 AD3d at 1153).
Furthermore, considering the evidence in a neutral light and
according due deference to the jury's opportunity to view the
witnesses, we reject defendant's claim that the verdict as a
whole was contrary to the weight of the evidence (see People v
Fomby, 101 AD3d 1355, 1356 [2012], lv denied 21 NY3d 1015 [2013];
People v Jones, 79 AD3d 1244, 1246 [2010], lv denied 16 NY3d 832
[2011]; People v Perser, 67 AD3d 1048, 1049 [2009], lv denied 13
NY3d 941 [2010]).

      Contrary to defendant's argument, County Court did not err
in permitting the police officer who initially responded to the
scene to testify as to the victim's statements identifying
defendant as the assailant, as such statements were admissible as
excited utterances (see People v Anderson, 114 AD3d 1083, 1085
[2014], lv denied 22 NY3d 1196 [2014]). Nor do we agree with
defendant that the admission of these statements violated his
constitutional right to confront witnesses. These statements
were not testimonial in nature as "their purpose was to enable
the police to meet an ongoing emergency and apprehend the
perpetrator" (People v Shaver, 86 AD3d 800, 802 [2011], lv denied
18 NY3d 962 [2012]; see People v Nieves-Andino, 9 NY3d 12, 14-15
[2007]). Defendant's additional argument that the testimony by
the detective who interviewed the victim at the hospital and the
caseworker with the Schenectady County Department of Social
                              -4-                106290

Services who met with the victim ran afoul of the Confrontation
Clause is without merit inasmuch as these witnesses did not
reveal any statements made to them by the victim (see People v
Lloyd, 118 AD3d 1117, 1121 [2014], lv denied 25 NY3d 951 [2015]).

      We also reject defendant's challenge to County Court's
Molineux rulings. As a general matter, "evidence of uncharged
crimes or prior bad actions may be admitted where they fall
within the recognized Molineux exceptions – motive, intent,
absence of mistake, common plan or scheme or identity – or where
such proof is inextricably interwoven with the charged crimes,
provide[s] necessary background or complete[s] a witness's
narrative" (People v Burnell, 89 AD3d 1118, 1120 [2011] [internal
quotation marks and citation omitted], lv denied 18 NY3d 922
[2012]). In situations involving domestic violence, prior bad
acts are more likely to be relevant and probative "because the
aggression and bad acts are focused on one particular person,
demonstrating the defendant's intent, motive, identity and
absence of mistake or accident" (People v Burkett, 101 AD3d 1468,
1470 [2012], lv denied 20 NY3d 1096 [2013] [internal quotation
marks and citation omitted]). The testimony against defendant
regarding prior instances of uncharged assault were properly
admitted as relevant on the issues of intent and identity and
provided the necessary background as to the relationship between
defendant and the victim (see People v Cox, 129 AD3d 1210, 1213
[2015], lv denied 26 NY3d 966 [2015]; People v Pham, 118 AD3d
1159, 1161 [2014], lv denied 24 NY3d 1087 [2014]). The evidence
of a separate incident of assault formed the basis of an order of
protection issued against defendant and, thus, was properly
admitted as probative because it "completed the narrative in
which the criminal acts occurred [and] tended to show the absence
of accident" (People v Rodriguez, 306 AD2d 686, 688 [2003], lv
denied 100 NY2d 624 [2003]; see People v Thibeault, 73 AD3d 1237,
1240-1241 [2010], lv denied 15 NY3d 810 [2010], cert denied 562
US 1293 [2011]). Furthermore, in light of County Court's
limiting instructions, we find no error in County Court's
Molineux rulings (see People v Tinkler, 105 AD3d 1140, 1143
[2013], lv denied 21 NY3d 1020 [2013]; People v Poquee, 9 AD3d
781, 782 [2004], lv denied 3 NY3d 741 [2004]).
                              -5-                106290

      Defendant's request for a missing witness charge based upon
the People's failure to call the victim as a witness was properly
denied. There is no dispute that the victim's testimony would
have been material. The People, however, satisfied their burden
of showing that the victim was unavailable. The victim was
personally served with a subpoena for trial and, when she failed
to appear when directed to, a material witness warrant was
issued. Local law enforcement officials and an investigator
continued to try to locate the victim during the duration of the
trial but were unsuccessful. In light of the foregoing, County
Court did not abuse its discretion in denying defendant's request
for the missing witness charge (see People v Lawing, 119 AD3d
1149, 1150-1151 [2014], lv denied 24 NY3d 1121 [2015]; People v
Bateman, 241 AD2d 770, 772 [1997], lv denied 91 NY2d 869 [1997]).

      Turning to defendant's contention that he received the
ineffective assistance of counsel, we note that defendant does
not point to any specific instance of alleged deficient
representation to support his conclusory claim. Based on our
review of the record, which shows that counsel successfully
precluded evidence, obtained the dismissal of one charge and
effectively cross-examined witnesses, defendant was not deprived
of meaningful representation (see People v Thiel, 134 AD3d 1237,
1240-1241 [2015], lv denied 27 NY3d 1156 [2016]; People v Kenyon,
108 AD3d 933, 940 [2013], lv denied 21 NY3d 1075 [2013]).

      Finally, with regard to defendant's claim that the sentence
is harsh and excessive, we decline to disturb it in the interest
of justice given the absence of an abuse of discretion or
extraordinary circumstances (see People v Ero, 139 AD3d 1248,
1250 [2016], lv denied 28 NY3d 929 [2016]; People v Cook, 112
AD3d 1065, 1066 [2013]).

     Peters, P.J., Egan Jr., Lynch and Rose, JJ., concur.
                        -6-                  106290

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
