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

918
KA 11-02612
PRESENT: CENTRA, J.P., CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

DANIEL UBBINK, DEFENDANT-APPELLANT.


FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (CHRISTINE M. COOK OF
COUNSEL), FOR DEFENDANT-APPELLANT.

WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (MARIA MALDONADO
OF COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Onondaga County
(John J. Brunetti, A.J.), rendered April 21, 2011. The judgment
convicted defendant upon a jury verdict, of criminal contempt in the
first degree, stalking in the third degree and resisting arrest.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by reducing the conviction of criminal
contempt in the first degree (Penal Law § 215.51 [b] [ii]) to criminal
contempt in the second degree (§ 215.50 [3]) and vacating the sentence
imposed on count one of the indictment and as modified the judgment is
affirmed, and the matter is remitted to Supreme Court, Onondaga
County, for sentencing on the conviction of criminal contempt in the
second degree.

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of, inter alia, criminal contempt in the first
degree (Penal Law § 215.51 [b] [ii]) and stalking in the third degree
(§ 120.50 [4]). Contrary to the contention of the People, we conclude
that defendant’s challenge to the legal sufficiency of the evidence
with respect to those crimes is preserved for our review (see People v
Payne, 3 NY3d 266, 273), and we further conclude that the evidence is
legally insufficient to support the conviction of criminal contempt in
the first degree (see generally People v Bleakley, 69 NY2d 490, 495).
The evidence presented at trial does not establish that defendant
intentionally placed or attempted to place the victim in reasonable
fear of physical injury, “let alone ‘serious physical injury or
death’ ” (see People v Demisse, 24 AD3d 118, 119, lv denied 6 NY3d
833). Defendant went to the victim’s residence, but the evidence does
not establish that his words or actions while he was there constituted
an actual or implied threat of physical harm to the victim. “While
defendant should have known that the victim did not want to have any
contact with him and that the [visit] could well be upsetting to her,
                                 -2-                           918
                                                         KA 11-02612

it does not necessarily follow that defendant, when he made the
[visit], intended to place the victim in reasonable fear for her
physical safety. Without such evidence, the evidence is legally
insufficient and his conviction for criminal contempt in the first
degree cannot stand” (People v Brown, 61 AD3d 1007, 1010).

     We further conclude, however, that there is legally sufficient
evidence to sustain a conviction of the lesser included offense of
criminal contempt in the second degree (Penal Law § 215.50 [3])
inasmuch as the evidence established that, despite having knowledge of
the order of protection, defendant intentionally disobeyed it (see
Brown, 61 AD3d at 1010). We therefore modify the judgment by reducing
defendant’s conviction of criminal contempt in the first degree to
criminal contempt in the second degree and vacating the sentence
imposed on count one of the indictment (see CPL 470.15 [2] [a]), and
we remit the matter to Supreme Court for sentencing on the conviction
of criminal contempt in the second degree (see CPL 470.20 [4]).

     We reject defendant’s contention that the evidence is not legally
sufficient to support the conviction of stalking in the third degree.
The evidence submitted in support of that crime “must be viewed in the
context of the prior relationship that existed between defendant and
the victim” (Brown, 61 AD3d at 1009). Here, defendant had been
previously convicted of stalking as a result of his fixation with the
victim such that he “had to have known that any attempt on his part to
contact [her] would have no legitimate purpose and, at the very
minimum, would serve to harass and annoy her[,] . . . [and that,] even
absent some express threat directed at her, she [would have]
legitimate and well-founded fears for her physical safety” if he
visited her residence (id.). Contrary to defendant’s contention, we
further conclude that the evidence established the necessary element
of a course of conduct, i.e., a series of acts “evidencing a
continuity of purpose” (People v Payton, 161 Misc 2d 170, 174), for
stalking in the third degree. Thus, viewing the evidence in the light
most favorable to the People, we conclude that the evidence
demonstrates a valid line of reasoning and permissible inferences that
could lead a rational person to the conclusion reached by the jury
with respect to that crime (see Bleakley, 69 NY2d at 495).

     Finally, viewing the evidence in light of the elements of the
crime of stalking in the third degree 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 generally Bleakley, 69 NY2d at 495).




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
