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

893
KA 11-02264
PRESENT: SMITH, J.P., CARNI, SCONIERS, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DEVINE WORTHY, 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 A. HERATY OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered September 23, 2011. The judgment convicted
defendant, upon a nonjury verdict, of criminal contempt in the first
degree (two counts) 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 following a nonjury trial of two counts of criminal
contempt in the first degree (Penal Law § 215.51 [c]) and one count of
endangering the welfare of a child (§ 260.10 [1]). In appeal No. 2,
defendant appeals from a judgment convicting him, following the same
nonjury trial, of two counts each of criminal contempt in the first
degree (§ 215.51 [c]) and criminal contempt in the second degree (§
215.50 [3]). All of the criminal contempt convictions arise from
defendant’s multiple violations of a no-contact order of protection
issued for the benefit of his girlfriend, who is also the mother of
his child. We reject defendant’s contention that the evidence is
legally insufficient to establish that he intended to violate the
order of protection. A copy of the order of protection was served on
defendant in court, where he was advised of its principal terms,
including the meaning of “no-contact,” and the evidence conclusively
establishes that defendant violated the order of protection with
respect to each count. Viewing the evidence in the light most
favorable to the People (see People v Contes, 60 NY2d 620, 621), we
conclude that “there is a valid line of reasoning and permissible
inferences that could lead a rational person to conclude that
defendant knew of the existence of the order of protection and
intentionally violated it” (People v Harris, 72 AD3d 1492, 1492, lv
denied 15 NY3d 774; see generally People v Bleakley, 69 NY2d 490,
                                 -2-                           893
                                                         KA 11-02264

495). Contrary to defendant’s further contention, viewing the
evidence in light of the elements of the crimes in this nonjury trial
(see People v Danielson, 9 NY3d 342, 349), we conclude that the
verdict is not against the weight of the evidence (see generally
Bleakley, 69 NY2d at 495).

     We reject defendant’s further contention that his interview with
a Child Protective Services (CPS) caseworker was “so pervaded by
governmental involvement” that it constituted state action in
violation of his right to counsel (People v Ray, 65 NY2d 282, 286; cf.
People v Wilhelm, 34 AD3d 40, 46-48; People v Greene, 306 AD2d 639,
640-641, lv denied 100 NY2d 594). In any event, any error in
admitting defendant’s statements to the CPS caseworker is harmless
because, “[i]n light of the totality of the evidence, there is no
reasonable possibility that the error affected [County Court’s]
verdict” (People v Douglas, 4 NY3d 777, 779; see generally People v
Lopez, 16 NY3d 375, 386-387; People v Doll, 98 AD3d 356, 367).
Finally, the sentence is not unduly harsh or severe.




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