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

299
KA 13-00466
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SEAN DELANEY, ALSO KNOWN AS SEAN M. DELANEY,
DEFENDANT-APPELLANT.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Vincent M.
Dinolfo, J.), rendered October 9, 2012. The judgment convicted
defendant, upon a jury verdict, of aggravated criminal contempt.

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

     Memorandum: On appeal from a judgment convicting him following a
jury trial of aggravated criminal contempt (Penal Law § 215.52 [1]),
defendant contends that County Court abused its discretion in
permitting the victim to testify that an order of protection was
issued on her behalf, following an incident in which defendant punched
through a window in her vehicle. According to defendant, the
prejudicial effect of the testimony outweighed its probative value.
Defendant failed to preserve that contention for our review (see CPL
470.05 [2]; People v Laracuente, 21 AD3d 1389, 1390, lv denied 6 NY3d
777). In any event, defendant’s contention is without merit. The
evidence was relevant as “background material to enable the jury to
understand the defendant’s relationship with the [victim] and to
explain the issuance of an order of protection” (People v Walters, 127
AD3d 889, 889, lv denied 25 NY3d 1209).

     We reject defendant’s further contention that the conviction is
not supported by legally sufficient evidence with respect to the
element of physical injury, i.e., “impairment of physical condition or
substantial pain” (Penal Law § 10.00 [9]). The victim, who was just
over five feet, testified that defendant, who was over six feet,
knocked her head into a wall, causing several large “very painful”
lumps to form on her head to the right of the crown; that he wrapped
his hands around her neck and lifted her; that he threw her to the
floor, sat on top of her and forced his fingers into her mouth,
                                 -2-                           299
                                                         KA 13-00466

causing pain in three of her lower teeth; and that he kicked her. The
victim testified that she had abrasions on her lip; that her lower
teeth moved when she pushed them and were still loose at the time of
trial; and that she had bruising on her neck, knees and ankles. She
described the pain level as a “4” for her arms; a “4 to 6” for her
legs; a “9” for her neck and back; and a “5 to 6” for her mouth
generally, but a “9” when she ate. The victim altered her diet for
approximately one month because of the pain. She sought medical
treatment the day after the incident and was prescribed, inter alia,
pain medication. Viewing the evidence in the light most favorable to
the People, as we must (see People v Gordon, 23 NY3d 643, 649), we
conclude that the evidence is legally sufficient to establish that the
injuries caused the victim substantial pain (see People v Chiddick, 8
NY3d 445, 447-448; People v Stillwagon, 101 AD3d 1629, 1630, lv denied
21 NY3d 1020; cf. People v Haynes, 104 AD3d 1142, 1142-1144, lv denied
22 NY3d 1156).

     Defendant further contends that the verdict is against the weight
of the evidence with respect to the element of physical injury. Even
assuming, arguendo, that a different verdict would not have been
unreasonable based upon the acquittal of defendant with respect to the
other counts charged in the indictment (see generally People v
Bleakley, 69 NY2d 490, 495), we reject defendant’s contention.
Viewing the evidence in light of the elements of the crime as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that there is no basis upon which to determine that the jury failed to
give the evidence the weight it should be accorded (see Bleakley, 69
NY2d at 495; cf. People v Cooney, 137 AD3d 1665, ___).




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
