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

229
KA 11-01398
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

NJERA WILSON, DEFENDANT-APPELLANT.


ERICKSON WEBB SCOLTON & HAJDU, LAKEWOOD (LYLE T. HAJDU OF COUNSEL),
FOR DEFENDANT-APPELLANT.

NJERA WILSON, DEFENDANT-APPELLANT PRO SE.

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


     Appeal from a judgment of the Erie County Court (Thomas P.
Franczyk, J.), rendered April 15, 2011. The judgment convicted
defendant, upon a nonjury verdict, of criminal contempt in the first
degree and criminal contempt in the second degree.

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

     Memorandum: Defendant appeals from a judgment convicting him
upon a nonjury verdict of criminal contempt in the first degree (Penal
Law § 215.51 [b] [v]) and criminal contempt in the second degree (§
215.50 [3]). Viewing the evidence in light of the elements of the
crimes in this nonjury trial (see People v Danielson, 9 NY3d 342,
349), we reject defendant’s contention that the verdict is against the
weight of the evidence (see generally People v Bleakley, 69 NY2d 490,
495). The People presented evidence establishing that, pursuant to an
order of protection entered in June 2009, defendant was directed to
stay away from the victim and her home. The victim testified that, on
October 19, 2009, defendant attacked her at her home and punched her
face, and that, on November 1, 2009, she heard defendant “banging” on
her front door and yelling. Although there were inconsistencies in
the victim’s testimony regarding both incidents, “it cannot be said
that her testimony was ‘manifestly untrue, physically impossible,
contrary to experience, or self-contradictory’ ” (People v Westbrooks,
90 AD3d 1536, 1536, lv denied 18 NY3d 963). Furthermore, the
responding officer testified that the victim had a bloody lip
following the first incident, and that defendant was apprehended in
the vicinity of the victim’s home within minutes of the second
incident. We further conclude that the sentence is not unduly harsh
or severe.
                                 -2-                           229
                                                         KA 11-01398

      We reject defendant’s contention in his pro se supplemental brief
that he was denied effective assistance of counsel. The order of
protection was relevant to the trial and a matter of record, and thus
we conclude that defense counsel was not ineffective in consenting to
its admission in evidence (see generally People v Rivera, 22 AD3d 888,
890, lv denied 6 NY3d 780). We further conclude that defense counsel
was not ineffective in conceding defendant’s guilt of criminal
contempt in the October incident in the hope that he would be
acquitted of the far more serious charge of burglary in the second
degree. Such a defense tactic is “a perfectly acceptable strategy
which should not be second guess[ed] by the courts” (People v
Washington [appeal No. 2], 19 AD3d 1180, 1181, lv denied 5 NY3d 833
[internal quotation marks omitted]; see People v Plaza, 133 AD2d 857,
858, lv denied 70 NY2d 936). We note, moreover, that defense counsel
successfully obtained an acquittal on the burglary count (see
generally People v Nuffer, 70 AD3d 1299, 1301). Viewing the evidence,
the law and the circumstances of this case in totality and as of the
time of the representation, we conclude that defense counsel provided
meaningful representation (see generally People v Baldi, 54 NY2d 137,
147).




Entered:   May 2, 2014                          Frances E. Cafarell
                                                Clerk of the Court
