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

454
KA 13-00064
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

SHUVON J. WILLIAMS, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ALAN WILLIAMS OF
COUNSEL), FOR DEFENDANT-APPELLANT.

LAWRENCE FRIEDMAN, DISTRICT ATTORNEY, BATAVIA (WILLIAM G. ZICKL OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Genesee County Court (Robert C.
Noonan, J.), rendered October 3, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal contempt in the first
degree, criminal contempt in the second degree and endangering the
welfare of a child.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reversing that part convicting
defendant of criminal contempt in the second degree and dismissing
count two of the indictment and as modified the judgment is affirmed.

     Memorandum: Defendant appeals from a judgment convicting her
upon a jury verdict of criminal contempt in the first degree (Penal
Law § 215.51 [b] [v]), criminal contempt in the second degree (§
215.50 [3]), and endangering the welfare of a child (§ 260.10 [1]).
We agree with defendant that her conviction under count two of the
indictment, charging criminal contempt in the second degree, must be
reversed and that count dismissed as a lesser inclusory concurrent
count of count one, charging criminal contempt in the first degree
(see People v Mingo, 66 AD3d 1043, 1044-1045, lv denied 14 NY3d 843;
see also People v Dupperoy, 88 AD3d 606, 607, lv denied 18 NY3d 957).
We therefore modify the judgment accordingly.

     We reject defendant’s contention that the testimony of the police
officer at the Wade hearing was incredible as a matter of law (see
generally People v Spann, 82 AD3d 1013, 1014; People v Donaldson, 35
AD3d 1242, 1243, lv denied 8 NY3d 984). Defendant preserved for our
review her contention that the evidence is legally insufficient only
to the extent that she contends that she did not have knowledge of the
order of protection and its terms (see generally People v Gray, 86
NY2d 10, 19). We reject that contention inasmuch as “defendant’s
signature acknowledging receipt of the order of protection establishes
                                 -2-                           454
                                                         KA 13-00064

that it was served and that [s]he was on notice as to its contents”
(People v Soler, 52 AD3d 938, 940, lv denied 11 NY3d 741; cf. People v
Bulgin, 105 AD3d 551, 551, lv denied 21 NY3d 1002). Defendant’s
contention that the order of protection was improperly admitted in
evidence is not preserved for our review (see People v Huntsman, 96
AD3d 1387, 1388-1389, lv denied 20 NY3d 1099), and we decline to
exercise our power to review that contention as a matter of discretion
in the interest of justice (see CPL 470.15 [6] [a]). Contrary to
defendant’s further contention, the verdict is not against the weight
of the evidence. The minor inconsistencies in the testimony of two
prosecution witnesses did not render their testimony incredible as a
matter of law (see People v Smith, 73 AD3d 1469, 1470, lv denied 15
NY3d 778; People v McAvoy, 70 AD3d 1467, 1468, lv denied 14 NY3d 890).
Viewing the evidence in light of the elements of the crimes as charged
to the jury (see People v Danielson, 9 NY3d 342, 349), we conclude
that “the jury was justified in finding . . . defendant guilty beyond
a reasonable doubt” (id. at 348).

     Defendant contends that the conviction of criminal contempt in
the first degree must be reversed because she may have been convicted
of an act for which she was not indicted (see generally People v
McNab, 167 AD2d 858, 858). Specifically, defendant contends that the
grand jury may have indicted her based on her conduct toward one of
the prosecution witnesses, rather than that witness’s son. We reject
that contention. Although the indictment did not name the victim, the
order of protection was issued in favor of the son and not his mother,
and the grand jury therefore could not have indicted defendant for her
conduct toward the mother.

     Defendant failed to preserve for our review her contention that
she was denied a fair trial based on prosecutorial misconduct during
summation (see People v Smith, 32 AD3d 1291, 1292, lv denied 8 NY3d
849). In any event, to the extent that the prosecutor’s remarks were
improper, we conclude that they were not so pervasive or egregious as
to deprive defendant of a fair trial (see People v Heck, 103 AD3d
1140, 1143, lv denied 21 NY3d 1074). Defendant also failed to
preserve for our review her contentions that County Court gave a
misleading jury instruction regarding a confession that was never made
by defendant (see People v Long, 100 AD3d 1343, 1345, lv denied 20
NY3d 1063), and that the court erred in failing to give a missing
witness charge (see People v Merrill, 60 AD3d 1376, 1376, lv denied 12
NY3d 856). We decline to exercise our power to review those
contentions as a matter of discretion in the interest of justice (see
CPL 470.15 [6] [a]).

     Defendant further contends that she was denied effective
assistance of counsel based on various errors made by defense counsel.
We conclude that defendant failed to meet her burden of demonstrating
the absence of strategic or other legitimate explanations for many of
defense counsel’s alleged errors (see People v Benevento, 91 NY2d 708,
712). In addition, defendant was “not denied effective assistance of
. . . counsel merely because counsel [failed to] make a motion or
argument that ha[d] little or no chance of success” (People v Stultz,
                                 -3-                           454
                                                         KA 13-00064

2 NY3d 277, 287, rearg denied 3 NY3d 702). Viewing the evidence, the
law, and the circumstances of this case in totality and as of the time
of the representation, we conclude that defendant received effective
assistance of counsel (see generally People v Baldi, 54 NY2d 137,
147).

     In light of defendant’s lengthy criminal history, we conclude
that the sentence is not unduly harsh or severe. Defendant failed to
preserve for our review her contention that the court erred in failing
to take into account three days of jail time credit to which she is
entitled in determining the duration of the order of protection, and
we decline to exercise our power to review that contention as a matter
of discretion in the interest of justice (see People v Hoyt, 107 AD3d
1426, 1426, lv denied 21 NY3d 1042; People v Owens, 66 AD3d 1428,
1428-1429, lv denied 14 NY3d 772). We have considered defendant’s
remaining contentions and conclude that they are without merit.




Entered:   June 13, 2014                        Frances E. Cafarell
                                                Clerk of the Court
