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

770
KA 10-02077
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

WILLIAM LONG, DEFENDANT-APPELLANT.


THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (SUSAN C. MINISTERO 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 2, 2010. The judgment convicted
defendant, upon a nonjury verdict, of criminal contempt in the second
degree and stalking in the fourth degree.

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

     Memorandum: Defendant appeals from a judgment convicting him,
after a nonjury trial, of criminal contempt in the second degree
(Penal Law § 215.50 [3]) and stalking in the fourth degree (§ 120.45
[2]). Defendant failed to preserve for our review his challenge to
the legal sufficiency of the evidence supporting the conviction
inasmuch as he failed to renew his motion for a trial order of
dismissal after presenting evidence (see People v Hines, 97 NY2d 56,
61, rearg denied 97 NY2d 678). We reject defendant’s further
contention that the verdict is against the weight of the evidence.
Viewing the evidence in light of the elements of the crimes in this
nonjury trial (see People v Danielson, 9 NY3d 342, 349), and affording
great deference to County Court’s credibility determinations (see
People v White, 43 AD3d 1407, 1408, lv denied 9 NY3d 1010), we
conclude that the alleged deficiencies in the evidence are not so
substantial as to render the verdict against the weight of the
evidence (see generally People v Bleakley, 69 NY2d 490, 495).

     We also reject defendant’s contention that the court erred in its
Molineux ruling. It is well settled that evidence of a defendant’s
prior bad acts is admissible “to show (1) intent, (2) motive, (3)
knowledge, (4) common scheme or plan, or (5) identity of the
defendant,” where, as here, its probative value outweighs its risk of
prejudice to defendant (People v Alvino, 71 NY2d 233, 242; see People
v Arafet, 13 NY3d 460, 465; People v Ventimiglia, 52 NY2d 350, 359).
                                 -2-                          770
                                                        KA 10-02077

Defendant’s prior behavior toward the complainant was admissible “to
explain the issuance of an order of protection, to establish the
defendant’s motive and intent in the commission of the crimes, and to
establish the complainant’s state of mind” (People v Melendez, 8 AD3d
680, 681, lv denied 3 NY3d 741; see People v Morris, 82 AD3d 908, 908-
909, lv denied 17 NY3d 808).

     Defendant’s contention that he was denied the right to effective
assistance of counsel likewise is lacking in merit. Defendant failed
to “demonstrate the absence of strategic or other legitimate
explanations” for the failure of defense counsel to file a more
thorough CPL 250.10 notice of intent to proffer psychiatric evidence
(People v Rivera, 71 NY2d 705, 709). Upon our review of the record as
a whole, we conclude that defense counsel provided meaningful
representation (see generally People v Benevento, 91 NY2d 708, 712;
People v Baldi, 54 NY2d 137, 147).

     Contrary to defendant’s remaining contention, the sentence is not
unduly harsh or severe. We note, however, that the certificate of
conviction incorrectly reflects that defendant was sentenced to a
three-year term of probation upon the conviction of stalking in the
fourth degree, a class B misdemeanor. The sentencing minutes
establish that the court imposed a one-year term of probation upon
that count, to be served concurrently with the sentence of probation
imposed on the remaining charge. The certificate of conviction must
therefore be amended accordingly (see e.g. People v Carrasquillo, 85
AD3d 1618, 1620, lv denied 17 NY3d 814; People v Afrika, 79 AD3d 1678,
1680, lv denied 17 NY3d 791).




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
