                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 16, 2015                    106041
________________________________

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

FREDERICK D. HEISERMAN,
                    Appellant.
________________________________


Calendar Date:   February 19, 2015

Before:   Peters, P.J., McCarthy, Rose and Clark, JJ.

                             __________


     Cheryl L. Sovern, Clifton Park, for appellant.

      Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas
J. Evanovich of counsel), for respondent.

                             __________


McCarthy, J.

      Appeal from a judgment of the County Court of Franklin
County (Main Jr., J.), rendered June 23, 2013, upon a verdict
convicting defendant of the crime of criminal contempt in the
first degree.

      Amber Montour observed defendant in the front passenger
seat of a vehicle driven by the mother of defendant's infant son
(hereinafter the mother). At that time, a stay-away order of
protection was in place prohibiting defendant from having any
contact with the mother, which had been entered by County Court
upon his prior conviction of criminal contempt in the second
degree. Montour, who knew the vehicle occupants and was aware of
the order of protection, contacted the police. A police officer
stopped the vehicle, then driven by the mother's brother, who
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indicated that he had dropped off the mother at school, and
arrested defendant, a passenger in the vehicle.

      At trial, the parties stipulated to the terms of the order
of protection and that defendant had a prior criminal contempt
conviction. Montour testified that as she drove past the
distinct vehicle driven by the mother, with which she was
familiar, she saw the occupants from a "few feet" away and made
eye contact with defendant. The mother testified, under
subpoena, acknowledging that she was aware of the terms of the
order of protection but wanted to see defendant that day and
still loved him. She explained that she left home for school
with her brother in the distinct car and picked up defendant;
defendant sat in the front passenger seat, and she had a
discussion with him regarding their child. She recounted that
defendant got into her vehicle willingly, remained for 10 to 15
minutes and never asked to get out. Upon his conviction of
criminal contempt in the first degree, County Court sentenced
defendant, as a second felony offender, to 2 to 4 years in
prison. Defendant appeals.

      Defendant challenges County Court's trial ruling regarding
his postarrest remarks to police. This argument centers on the
court's ruling permitting a police officer to recount the
substance of defendant's postarrest statements over his objection
that the prejudicial effect of this evidence outweighed its
probative value. Specifically, the officer testified that, after
defendant was taken to the police station, he stated to an
officer, "You're a nightmare. You were after me. You're doing
this to me. You're harassing me, you f*cking b*tch."

      While relevant evidence is generally admissible unless it
violates an exclusionary rule, "relevant evidence . . . may
still be excluded by the trial court in the exercise of its
discretion if its probative value is substantially outweighed by
the danger that it will unfairly prejudice the other side or
mislead the jury" (People v Scarola, 71 NY2d 769, 777 [1988]; see
People v Caruso, 6 AD3d 980, 984-985 [2004], lv denied 3 NY3d 704
[2004]). However, evidence is relevant only "if it tends to
prove the existence or non-existence of a material fact, i.e., a
fact directly at issue in the case" (People v Primo, 96 NY2d 351,
                              -3-                106041

355 [2001]; see People v Mateo, 2 NY3d 383, 424 [2004], cert
denied 542 US 946 [2004]), and "[e]vidence of merely slight,
remote or conjectural significance will ordinarily be
insufficiently probative to outweigh [the] countervailing risks
[of prejudice]" (People v Primo, 96 NY2d at 355 [internal
quotation marks and citations omitted]).

      Here, the People were required to prove that defendant
intentionally disobeyed an order of protection that was "duly
served" or of which he had "actual knowledge" because he was
present in court when the order was issued, that the order
required him to stay away from the protected party, and that he
had been convicted of criminal contempt in the first or second
degree in the prior five years (Penal Law § 215.51 [c]; see Penal
Law § 215.50 [3]). The only disputed issues at trial were
whether defendant had violated the order of protection and had
done so intentionally. Defendant's remarks to the police officer
were directed at the officer's motives and conduct and reflected
defendant's disdain for her or the police, which were not
relevant to or probative of any element of the charged crime or
any material fact in issue (compare People v Austin, 115 AD3d
1063, 1065 [2014], lv denied 23 NY3d 960 [2014]). The remarks do
not suggest a motive for defendant's violation of the order of
protection and did not constitute an admission by defendant that
he had intentionally violated the order of protection. Thus, as
defendant's statements are not relevant to or probative of his
motive or any disputed fact or element of the crime charged, they
should not have been admitted into evidence. However, given the
overwhelming evidence of defendant's guilt – including his
stipulation that the order of protection was in place, Montour's
testimony placing defendant in the vehicle with the mother and
the mother's testimony that they voluntarily remained together in
the vehicle for 10 to 15 minutes – there is no "significant
probability" that he would have been acquitted had it not been
for the admission of his postarrest statements (People v
Crimmins, 36 NY2d 230, 241-242 [1975]; see People v Byer, 21 NY3d
887, 889 [2013]).

      We are unpersuaded by defendant's further contention that
the prosecutor's references in summation to Montour's lack of a
motive to testify against defendant were improper and referred to
                              -4-                 106041

facts not in evidence. While defense counsel's cross-
examination of Montour did not directly address her motives for
testifying, it did question her credibility and ability to
observe the incident. In his opening statement, defense counsel
referred generally to witness "biases" and asserted, among other
things, that "[p]eople sometimes make things up because they have
reasons to make things up." Where, as here, defense counsel
attacks the credibility and alludes to the motives and biases of
prosecution witnesses, the prosecutor is entitled in summation to
fairly respond and argue that the witness is not biased and had
no motive to lie (see People v Marcus, 112 AD3d 652, 653 [2013],
lv denied 22 NY3d 1140 [2014]; People v Barber, 13 AD3d 898, 900
[2004], lv denied 4 NY3d 796 [2005]; People v Alexander, 255 AD2d
708, 710 [1998], lv denied 93 NY2d 897 [1999]; see generally
People v Halm, 81 NY2d 819, 821 [1993]). Viewing the
prosecutor's remarks in the context of the trial and summations
as a whole, defendant was not deprived of a fair trial. Even if
the prosecutor's remarks were not a fair comment on the evidence
or a measured response to defense counsel's arguments, they "did
not rise to the flagrant and pervasive level of misconduct which
would deprive defendant of due process" or a fair trial (People v
Robinson, 16 AD3d 768, 770 [2005], lv denied 4 NY3d 856 [2005]).

      Finally, defendant's contention that County Court's charge
was inadequate was not preserved for appellate review, as he did
not make a request for a particular charge on intent and did not
object to the charge as given (see CPL 470.05 [2]; People v
Green, 119 AD3d 23, 30 [2014], lv denied 23 NY3d 1062 [2014]).
In any event, as County Court closely followed the Model Jury
Charge, explaining clearly that intent means "conscious objective
or purpose" (see CJI[NY] Penal Law § 215.51 [c]), no corrective
action is warranted in the interest of justice (see CPL 470.15
[6] [a]).

     Peters, P.J., Rose and Clark, JJ., concur.
                        -5-                  106041

ORDERED that the judgment is affirmed.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
