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

619
KA 12-01559
PRESENT: SCUDDER, P.J., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

JAMES F. WEBB, DEFENDANT-APPELLANT.


JEREMY D. SCHWARTZ, BUFFALO, 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 August 2, 2012. The judgment convicted
defendant, upon a jury verdict, of criminal contempt in the first
degree and criminal contempt in the second degree (four counts).

     It is hereby ORDERED that the judgment so appealed from is
modified on the law by reversing that part convicting defendant of
criminal contempt in the first degree (Penal Law § 215.51 [b] [iv])
and dismissing the first count of the indictment and as modified the
judgment is affirmed and the matter is remitted to Genesee County
Court for proceedings pursuant to CPL 460.50 (5).

     Memorandum: Defendant appeals from a judgment convicting him
upon a jury verdict of one count of criminal contempt in the first
degree (Penal Law § 215.51 [b] [iv]) and four counts of criminal
contempt in the second degree (§ 215.50 [3]), arising from defendant’s
violation of an order of protection directing him, inter alia, to
refrain from communicating by telephone with his former girlfriend,
the mother of defendant’s child. We agree with defendant that the
evidence is legally insufficient to support the conviction of criminal
contempt in the first degree. Even assuming, arguendo, that the
evidence is legally sufficient to establish that defendant repeatedly
made telephone calls to his ex-girlfriend, we agree with him that the
evidence is legally insufficient to establish that he intended by
those calls to harass, annoy, threaten or alarm her, with no purpose
of legitimate communication (see § 215.51 [b] [iv]; People v
VanDeWalle, 46 AD3d 1351, 1353, lv denied 10 NY3d 845, abrogated on
other grounds People v Cajigas, 19 NY3d 697, 701). Rather, the only
inference to be drawn from the evidence is that defendant made the
calls with the intent to discuss issues of child support and
visitation, not to harass, annoy, threaten or alarm his ex-girlfriend.
We therefore modify the judgment accordingly. We further conclude,
however, that the evidence is legally sufficient to establish that
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                                                          KA 12-01559

defendant intentionally disobeyed the order of protection by making
four telephone calls to the former girlfriend over the course of eight
days (see People v Levi, 55 AD3d 625, 625-626, lv denied 11 NY3d 926).
The evidence is thus legally sufficient with respect to the conviction
of criminal contempt in the second degree (see generally People v
Bleakley, 69 NY2d 490, 495) and, viewing the evidence in light of the
elements of that crime as charged to the jury (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).

     All concur except SCUDDER, P.J., and PERADOTTO, J., who dissent in
part and vote to affirm in the following Memorandum: We respectfully
dissent in part because we disagree with the majority that the
evidence is legally insufficient to support defendant’s conviction of
criminal contempt in the first degree (Penal Law § 215.51 [b] [iv]).
We would therefore affirm the judgment.

     “The standard for reviewing legal sufficiency in a criminal case
is whether, ‘[v]iewing the evidence . . . in a manner most favorable
to the prosecution and indulging in all reasonable inferences in the
People’s favor,’ a rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt” (People v
Bueno, 18 NY3d 160, 169, quoting People v Ford, 66 NY2d 428, 437). As
relevant here, a person is guilty of criminal contempt in the first
degree when, in violation of an order of protection of which the
defendant has actual knowledge, he or she, “with intent to harass,
annoy, threaten or alarm a person for whose protection such order was
issued, repeatedly makes telephone calls to such person, whether or
not a conversation ensues, with no purpose of legitimate
communication” (Penal Law § 215.51 [b] [iv]). It is well established
that “[i]ntent may be inferred from conduct as well as the surrounding
circumstances” (People v Steinberg, 79 NY2d 673, 682), and a jury is
entitled to “infer that a person intended the natural and probable
consequences of an act” (id. at 685). Where competing inferences may
be drawn concerning a defendant’s intent, those inferences, “ ‘ if not
unreasonable, are within the exclusive domain of the finders of
fact’ ” (Bueno, 18 NY3d at 169, quoting People v Barnes, 50 NY2d 375,
381).

     Here, viewing the evidence in the light most favorable to the
People and according the People the benefit of every reasonable
inference (see People v Contes, 60 NY2d 620, 621; People v Soler, 52
AD3d 938, 940, lv denied 11 NY3d 741), we conclude that the evidence
is legally sufficient to establish that defendant committed the crime
of criminal contempt in the first degree by repeatedly making
telephone calls to his ex-girlfriend’s residence in violation of a
valid order of protection made for her benefit, of which defendant had
actual knowledge, with the intent to harass or annoy her, and with no
legitimate purpose (see Penal Law § 215.51 [b] [iv]; People v Audi, 88
AD3d 1070, 1072, lv denied 18 NY3d 856; People v Richards, 297 AD2d
610, 611, lv denied 99 NY2d 539). The evidence at trial established
that defendant made five telephone calls to the victim within an
eight-day period, and that three of those calls took place on a single
day over the course of one hour. During the telephone calls,
                                 -3-                           619
                                                         KA 12-01559

defendant called the victim a “bitch” and a “whore,” told her he did
not intend to pay child support for their child, and threatened to
embarrass her in the court proceeding commenced by the victim to
enforce defendant’s child support obligation (see Soler, 52 AD3d at
939-940). Notably, defendant had never paid child support to the
victim despite the existence of a child support order, and thus his
expressed intention to continue avoiding his child support obligation
was not new or unexpected to the victim. The victim testified that,
every time defendant called her, she told him not to do so, but that
he continued to call her in contravention of her wishes and the order
of protection (see People v Kelly, 79 AD3d 1642, 1642, lv denied 16
NY3d 832). The victim further testified that she found the repeated
telephone calls to be annoying and/or harassing.

     Although defendant contends that the purpose of his telephone
calls was not to harass or annoy the victim, but rather his purpose
was to discuss child support, we conclude that the nature and
circumstances of the telephone calls, combined with the evidence of
defendant’s “previous violent and abusive conduct toward the victim
which precipitated the order of protection[], allow[ed] the jury to
reasonably conclude that defendant’s purpose in telephoning the victim
was simply to ‘harass, annoy, threaten or alarm’ her and lacked any
particular legitimate purpose” (People v Tomasky, 36 AD3d 1025, 1026,
lv denied 8 NY3d 927, quoting Penal Law § 215.51 [b] [iv]; see
generally People v Alexander, 50 AD3d 816, 817-818, lv denied 10 NY3d
955).

     Finally, 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 reject defendant’s contention that the verdict with respect
to all counts is against the weight of the evidence (see People v
Allman, 280 AD2d 384, 384-385, lv denied 96 NY2d 797; see generally
People v Bleakley, 69 NY2d 490, 495).




Entered:   July 5, 2013                         Frances E. Cafarell
                                                Clerk of the Court
