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

166
KA 12-01629
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT

                    V                             MEMORANDUM AND ORDER

ADAM M. WERTMAN, DEFENDANT-APPELLANT.


CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT.

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (HEATHER M. DESTEFANO OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Cayuga County Court (Thomas G.
Leone, J.), rendered June 28, 2012. The judgment convicted defendant,
after a nonjury trial, of aggravated criminal contempt (five counts),
criminal obstruction of breathing or blood circulation (three counts)
and harassment in the second degree (two counts).

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of, inter alia, five counts of aggravated
criminal contempt (Penal Law § 215.52 [3]) and three counts of
criminal obstruction of breathing or blood circulation (§ 121.11 [a]).
Defendant failed to preserve for our review his challenge to the legal
sufficiency of the evidence inasmuch as he failed to renew his motion
for a trial order of dismissal after presenting evidence (see People v
Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any event,
defendant’s challenge is without merit. “[T]he victim’s testimony
constituted ‘competent evidence which, if accepted as true, would
establish every element of [the] offense[s] charged’ ” (People v
Smith, 41 AD3d 1093, 1094, lv denied 9 NY3d 1039, quoting CPL 70.10
[1]; see People v Pettengill, 36 AD3d 1070, 1071, lv denied 8 NY3d
948; People v Liggins, 2 AD3d 1325, 1326). Contrary to defendant’s
contention, it cannot be said that the victim’s testimony was
“manifestly untrue, physically impossible, contrary to experience, or
self-contradictory” (People v Harris, 56 AD3d 1267, 1268, lv denied 11
NY3d 925; see People v Latorre, 94 AD3d 1429, 1430, lv denied 19 NY3d
998, reconsideration denied 20 NY3d 987).

     Viewing the evidence in light of the elements of the crimes in
this bench trial (see People v Danielson, 9 NY3d 342, 349), we
conclude that the verdict is not against the weight of the evidence
(see generally People v Bleakley, 69 NY2d 490, 495). Although a
                                 -2-                           166
                                                         KA 12-01629

different verdict would not have been unreasonable (see Danielson, 9
NY3d at 348), we conclude that, “[b]ased on the weight of the credible
evidence, [County C]ourt . . . was justified in finding the defendant
guilty beyond a reasonable doubt” (id.; see People v Romero, 7 NY3d
633, 642-643). “ ‘Great deference is to be accorded to the
fact[]finder’s resolution of credibility issues based upon its
superior vantage point and its opportunity to view witnesses, observe
demeanor and hear the testimony’ ” (People v Gritzke, 292 AD2d 805,
805-806, lv denied 98 NY2d 697), and we perceive no reason to disturb
the court’s credibility determinations.

     Contrary to the further contention of defendant, we conclude that
the court did not err in its Molineux ruling in allowing the People to
introduce testimony concerning defendant’s prior acts of domestic
violence against the victim. That testimony was “relevant to provide
background information concerning the context and history of
defendant’s relationship with the victim” (People v Wolff, 103 AD3d
1264, 1265, lv denied 21 NY3d 948; see People v Meseck, 52 AD3d 948,
950, lv denied 11 NY3d 739; People v Nunez, 51 AD3d 1398, 1399-1400,
lv denied 11 NY3d 792), and it was also relevant to the issue of
defendant’s intent (see People v Crump, 77 AD3d 1335, 1336, lv denied
16 NY3d 857; People v Williams, 29 AD3d 1217, 1219, lv denied 7 NY3d
797). Further, the probative value of such testimony exceeded its
potential for prejudice (see Wolff, 103 AD3d at 1266; Crump, 77 AD3d
at 1336; Nunez, 51 AD3d at 1399-1400).

     We reject defendant’s further contention that the court’s
Sandoval ruling constituted an abuse of discretion (see People v
Sandoval, 34 NY2d 371, 374). Defendant’s “intentional violation of
prior court orders bore on his honesty, truthfulness and willingness
to advance his own interests at the expense of society, all bearing on
his testimonial credibility” (People v Olson, 110 AD3d 1373, 1375; see
People v Salsbery, 78 AD3d 1624, 1626, lv denied 16 NY3d 836; People v
Foster, 52 AD3d 957, 960-961, lv denied 11 NY3d 788), and “[t]he
similarity between the prior convictions and the instant crimes does
not by itself preclude cross-examination concerning those prior
convictions” (People v Hammond, 84 AD3d 1726, 1726-1727, lv denied 17
NY3d 816; see People v Hayes, 97 NY2d 203, 208; People v Paige, 88
AD3d 912, 912, lv denied 18 NY3d 885). Although defendant contends
that the record does not establish that the court properly balanced
the probative value of his prior convictions against their potential
for undue prejudice, “it is well settled that ‘an exercise of a trial
court’s Sandoval discretion should not be disturbed merely because the
court did not provide a detailed recitation of its underlying
reasoning . . . , particularly where, as here, the basis of the
court’s decision may be inferred from the parties’ arguments’ ”
(People v Mull, 89 AD3d 1445, 1445, lv denied 19 NY3d 965, quoting
People v Walker, 83 NY2d 455, 459).

     Defendant further contends that the court abused its discretion
in denying his late request to call a particular individual as an
alibi witness. We note, however, that defendant waived that
contention because, prior to jury selection, defense counsel advised
                                 -3-                           166
                                                         KA 12-01629

the court that he did not intend to call that individual as a witness
and thus that the court “[did not] need to address any issues” with
respect to such individual (see generally People v Harris, 97 AD3d
1111, 1112, lv denied 19 NY3d 1026; People v Hamilton, 96 AD3d 1518,
1519, lv denied 19 NY3d 997).

     Finally, we reject defendant’s challenge to the severity of the
sentence. The court imposed the minimum term of incarceration allowed
on defendant’s conviction, as a second felony offender, of aggravated
criminal contempt, and the terms of incarceration imposed on the
remaining convictions were directed to run concurrently thereto.




Entered:   February 14, 2014                    Frances E. Cafarell
                                                Clerk of the Court
