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

1201
KA 11-02399
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

VAN T. CUNG, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


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

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


     Appeal from a judgment of the Supreme Court, Erie County (Deborah
A. Haendiges, J.), rendered September 21, 2011. The judgment
convicted defendant, upon a jury verdict, of criminal contempt in the
first degree and endangering the welfare of a child.

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

     Memorandum: In appeal No. 1, defendant appeals from a judgment
convicting him upon a jury verdict of criminal contempt in the first
degree (Penal Law § 215.51 [b] [i]) and endangering the welfare of a
child (§ 260.10 [1]) and, in appeal No. 2, he appeals from a judgment
convicting him upon the same jury verdict of criminal contempt in the
second degree (§ 215.50 [3]) as a lesser included offense of criminal
contempt in the first degree (§ 215.51 [b] [ii]). In both appeals,
defendant contends that the evidence is legally insufficient to
support his conviction of the crimes of criminal contempt in the first
and second degrees, and that the verdict with respect to those crimes
is against the weight of the evidence. We affirm.

     As defendant correctly concedes, his challenge to the legal
sufficiency of the evidence is unpreserved for our review inasmuch as
“his motion for a trial order of dismissal was not specifically
directed at the grounds advanced on appeal” (People v Wright, 107 AD3d
1398, 1401; see People v Gray, 86 NY2d 10, 19). In any event, we
reject defendant’s challenge.

     With respect to appeal No. 1, defendant contends   that the
evidence is legally insufficient to establish that he   knowingly and
intentionally violated the June 2010 no-contact order   of protection
issued in favor of the victim (hereafter, first order   of protection),
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                                                         KA 11-02399

and that the verdict is against the weight of the evidence in that
regard. We reject those contentions. It is undisputed that defendant
was present in court and represented by an attorney when the first
order of protection was issued, that he signed the order, and that he
received a copy thereof. Although defendant claimed that he did not
fully understand the order of protection because he speaks only Chin,
a Burmese dialect, the People introduced evidence that the order of
protection was explained to defendant in Burmese, and that defendant
understood that he had to stay away from, and could not contact, the
victim. A Burmese interpreter testified that, on the date the first
order of protection was issued, he translated the order of protection
from English to Burmese and explained it to defendant (see People v
Wilmore, 305 AD2d 117, 118, lv denied 100 NY2d 589). Further, a
caseworker testified that, after the incident underlying defendant’s
conviction of criminal contempt in the first degree, defendant
admitted to her that he knew there was an order of protection in place
at the time of the incident and that he understood its meaning. We
thus conclude that “[t]he evidence is legally sufficient . . . to
establish defendant’s knowledge of the existence and contents of [the
first] order of protection [and] the conduct prohibited thereby”
(People v Roman, 13 AD3d 1115, 1115, lv denied 4 NY3d 802; see
Wilmore, 305 AD2d at 118).

     Contrary to the further contention of defendant in appeal No. 1,
the evidence is legally sufficient to establish that he intentionally
placed or attempted to place the victim in reasonable fear of physical
injury (see Penal Law § 215.51 [b] [i]; see also People v Harrison,
270 AD2d 876, 876, lv denied 95 NY2d 797). “It is well established
that a defendant may be presumed to intend the natural and probable
consequences of his [or her] actions” (Roman, 13 AD3d at 1116
[internal quotation marks omitted]), and that “[i]ntent may be
inferred from conduct as well as the surrounding circumstances”
(People v Steinberg, 79 NY2d 673, 682; see People v Kelly, 79 AD3d
1642, 1642, lv denied 16 NY3d 832). Here, the People established
that, after calling the victim 23 times, defendant knocked on the door
to the victim’s apartment and, when she did not answer, he entered the
apartment through an upstairs door or window. The victim called 911
and then fled through a window onto the roof of the porch with the
parties’ infant daughter strapped to her back because, according to
the victim, she was afraid defendant would kill her. Defendant then
picked up a knife and, according to several police officers who
responded to the scene, waved the knife at the victim and shouted at
her through the window. A neighbor testified that the victim was
“crying” and “screaming” on the roof of the porch, and that she
“sounded terrified.” We thus conclude that the evidence is legally
sufficient to establish that defendant intentionally placed the victim
in reasonable fear of physical injury (see Harrison, 270 AD2d at 876;
see also People v Crump, 77 AD3d 1335, 1335-1336, lv denied 16 NY3d
857). Indeed, defendant himself testified that the victim was afraid
of him and that she was going to jump off the roof to get away from
him.

     With respect to appeal No. 2, we likewise conclude that the
evidence is legally sufficient to establish that defendant
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                                                         KA 11-02399

intentionally violated the order of protection (see Penal Law § 215.50
[3]; Roman, 13 AD3d at 1115). Although defendant again contends that
he did not fully understand the October 2010 order of protection
issued in favor of the victim (hereafter, second order of protection),
he concedes that the order “was served at a court proceeding at which
[he] was assisted by counsel and an interpreter” (People v Pichardo,
298 AD2d 150, 151, lv denied 99 NY2d 562). With respect to
defendant’s claim that he did not think that it was a violation of the
second order of protection if the victim “accept[ed] [him],” the
victim testified that she permitted defendant into her home in
December 2010 only because he threatened her (see generally People v
Barrios-Rodriguez, 107 AD3d 1533, 1534).

     Because the evidence is legally sufficient to support the
conviction of criminal contempt in the first and second degrees, there
is no merit to defendant’s further contention that defense counsel’s
failure to make a specific motion for a trial order of dismissal
relative to those crimes constitutes ineffective assistance of counsel
(see People v Pytlak, 99 AD3d 1242, 1243, lv denied 20 NY3d 988).
Further, viewing the evidence in light of the elements of criminal
contempt in the first and second degrees as charged to the jury (see
People v Danielson, 9 NY3d 342, 349), we reject defendant’s contention
that the verdict is against the weight of the evidence with respect to
those crimes (see generally People v Bleakley, 69 NY2d 490, 495).

     Contrary to the further contention of defendant in both appeals,
we conclude that Supreme Court did not err in its Molineux ruling in
allowing the People to introduce testimony regarding defendant’s prior
acts of domestic violence against the victim inasmuch as 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 Dennis, 91 AD3d 1277, 1279, lv denied 19 NY3d 995), and was
also relevant to the issue whether defendant intended to place or to
attempt to place the victim in reasonable fear of physical injury (see
People v Garvin, 37 AD3d 372, 372-373, lv denied 8 NY3d 984; see also
People v Thomas, 85 AD3d 1572, 1572, affd 21 NY3d 226; People v
McCowan, 45 AD3d 888, 890, lv denied 9 NY3d 1007). Further, the
probative value of such testimony exceeded its potential for prejudice
(see Wolff, 103 AD3d at 1266; Crump, 77 AD3d at 1336; Garvin, 37 AD3d
at 372-373), and the court’s limiting instructions minimized any
prejudicial impact (see People v Rogers, 103 AD3d 1150, 1152-1153, lv
denied 21 NY3d 946).

     The court likewise did not err in its Molineux ruling in allowing
the victim to testify that defendant forced her to engage in sexual
intercourse during the time period charged in the indictment in appeal
No. 2. That testimony was relevant to an element of the charged
crime, i.e., whether defendant “intentionally place[d] or attempt[ed]
to place [the victim] . . . in reasonable fear of physical injury . .
. by . . . engaging in a course of conduct or repeatedly committing
acts over [that] period of time” (Penal Law § 215.51 [b] [ii]; see
People v Ray, 63 AD3d 1705, 1706, lv denied 13 NY3d 838).
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                                                           KA 11-02399

    Finally, the sentence is not unduly harsh or severe.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
