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

980
KA 10-02456
PRESENT: FAHEY, J.P., PERADOTTO, CARNI, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

PAUL PYTLAK, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF
COUNSEL), FOR DEFENDANT-APPELLANT.

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


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered October 19, 2010. The judgment convicted
defendant, upon a jury verdict, of aggravated criminal contempt (three
counts) and stalking in the fourth 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 jury verdict of three counts of aggravated criminal contempt
(Penal Law § 215.52 [3]) and two counts of stalking in the fourth
degree (§ 120.45 [2]). We reject defendant’s contention that County
Court erred in admitting testimony concerning defendant’s prior
conduct toward the victim. That testimony was relevant to establish
defendant’s motive and intent in committing the crimes charged (see
People v Long, 96 AD3d 1492, 1493; People v Perez, 67 AD3d 1324, 1325-
1326, lv denied 13 NY3d 941; People v Freece, 46 AD3d 1428, 1428-1429,
lv denied 10 NY3d 811); to establish that the victim had a reasonable
fear of physical injury (see § 215.51 [b] [iii]; People v Crump, 77
AD3d 1335, 1336, lv denied 16 NY3d 857); and to establish that
defendant’s violation of the order of protection was neither innocent
nor inadvertent (see People v Perez, 49 AD3d 903, 903, lv denied 10
NY3d 938; see also People v Guiteau, 267 AD2d 1094, lv denied 94 NY2d
920). Moreover, the court properly determined that the probative
value of that testimony outweighed its potential for prejudice (see
People v Dizak, 93 AD3d 1182, 1184, lv denied 19 NY3d 972; People v
Ditucci, 81 AD3d 1249, 1250, lv denied 17 NY3d 794; see generally
People v Alvino, 71 NY2d 233, 241-242).

     Defendant’s challenge to the legal sufficiency of the evidence
with respect to the conviction of aggravated criminal contempt is not
preserved for our review because he failed to renew his motion for a
                                 -2-                           980
                                                         KA 10-02456

trial order of dismissal after presenting proof (see People v Hines,
97 NY2d 56, 61, rearg denied 97 NY2d 678). In any event, defendant’s
challenge lacks merit (see generally People v Bleakley, 69 NY2d 490,
495) and, viewing the evidence in light of the elements of the crime
of aggravated criminal contempt as charged to the jury (see People v
Danielson, 9 NY3d 342, 349), we reject defendant’s further contention
that the verdict is against the weight of the evidence with respect to
that crime (see People v Curry, 82 AD3d 1650, 1650-1651, lv denied 17
NY3d 805; People v Van Duser [appeal No. 2], 277 AD2d 1034, 1035, lv
denied 96 NY2d 739; see generally Bleakley, 69 NY2d at 495). “[T]he
jury was in the best position to assess the credibility of the
witnesses and, on this record, it cannot be said that the jury failed
to give the evidence the weight it should be accorded” (People v Orta,
12 AD3d 1147, 1147, lv denied 4 NY3d 801).

     Finally, we reject defendant’s contention that he was denied
effective assistance of counsel. Because the evidence is legally
sufficient to support defendant’s conviction of aggravated criminal
contempt, it cannot be said that defense counsel’s failure to renew
the motion for a trial order of dismissal constitutes ineffective
assistance of counsel (see People v Holt, 93 AD3d 1304, 1305; People v
Washington, 60 AD3d 1454, 1455, lv denied 12 NY3d 922; see generally
People v Baldi, 54 NY2d 137, 147). Also, defendant has failed to
“demonstrate the absence of strategic or other legitimate
explanations” for defense counsel’s failure to obtain the victim’s
mental health records (People v Rivera, 71 NY2d 705, 709; see People v
Castleberry, 265 AD2d 921, 921-922, lv denied 94 NY2d 902). Based on
the record before us, we conclude that defendant received meaningful
representation (see generally People v Benevento, 91 NY2d 708, 712-
713; Baldi, 54 NY2d at 147).




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
