People v. Berry

• Decision Date: 27 January 2022
• Docket Number: 2018-2611 S CR
• Citation: 2022 NY Slip Op 50064 (U)
• Parties: The People of the State of New York, Respondent, v. Kenneth A. Berry, Jr., Appellant.
• Court: New York Supreme Court

2022 NY Slip Op 50064(U)

The People of the State of New York, Respondent, v. Kenneth A. Berry, Jr., Appellant.

2018-2611 S CR

Supreme Court of New York, Second Department

January 27, 2022

Unpublished Opinion

Feldman and Feldman (Steven A. Feldman), for appellant.

Suffolk County District Attorney (Sharyn Gitter of counsel) for respondent.

PRESENT: TIMOTHY S. DRISCOLL, J.P., ELIZABETH H. EMERSON, HELEN VOUTSINAS, JJ.

Appeal from a judgment of the District Court of Suffolk County First District (Patricia T. Grant Flynn, J.), rendered November 20, 2018. The judgment convicted defendant, after a nonjury trial, of harassment in the second degree, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

Defendant was charged with harassment in the second degree (Penal Law § 240.26 [1]). At a nonjury trial, the complainant, the sole witness, testified that, while he was preparing food in the kitchen, defendant approached the complainant from the back, grabbed the complainant's wrists and twisted them behind the complainant's back, causing the complainant to feel "shocked," "scared" and "frightened to an extent." Defendant rested without calling any witnesses. Following the trial, defendant was convicted as charged.

"A person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person[, h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" (Penal Law § 240.26 [1]; see People v Repanti, 24 N.Y.3d 706, 710 [2015]). Intent may-and in most instances must-be established by inferences drawn from a defendant's conduct and the surrounding circumstances (see People v Rodriguez, 17 N.Y.3d 486, 489 [2011]; People v Bracey, 41 N.Y.2d 296, 301 [1977]; People v Collins, 178 A.D.2d 789, 789 [1991]).

Viewing the evidence in the light most favorable to the People (see People v Delamota, 18 N.Y.3d 107, 113 [2011]; People v Acosta, 80 N.Y.2d 665, 672 [1993]), we find that the complainant's testimony alone was legally sufficient to establish defendant's guilt beyond a reasonable doubt (see People v Schulz, 4 N.Y.3d 521, 530 [2005]; People v Arroyo, 54 N.Y.2d 567, 578 [1982]; People v Vecchio, 31 A.D.3d 674, 674 [2006]; People v Ricone, 288 A.D.2d 402, 402 [2001]). The District Court was entitled to infer from defendant's conduct and the surrounding circumstances an intent to harass, annoy or alarm the complainant (see People v Gordon, 23 N.Y.3d 643, 650 [2014]; People v Mack, 76 A.D.3d 467, 468 [2010]; People v Flores, 30 Misc.3d 135 [A], 2011 NY Slip Op 50152[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Upon the exercise of our factual review power (see CPL 470.15 [5]; People v Danielson, 9 N.Y.3d 342, 348-349 [2007]), while according great deference to the trial court's opportunity to view the witness, hear his testimony, observe his demeanor, and assess his credibility (see People v Lane, 7 N.Y.3d 888, 890 [2006]; People v Mateo, 2 N.Y.3d 383, 410 [2004]; People v Bleakley, 69 N.Y.2d 490, 495 [1987]), we are satisfied that the verdict was not against the weight of the evidence (see People v Romero, 7 N.Y.3d 633 [2006]).

Defendant's contention that the prosecutor violated the District Court's Molineux ruling (see People v Molineux, 168 NY 264 [1901]) by eliciting certain testimony from the complainant regarding defendant's prior bad acts against the complainant, which had been previously precluded by the court, is unpreserved for appellate review because defense counsel failed to object to the admission of that testimony (see CPL 470.05 [2]; People v Sams, 140 A.D.3d 1195, 1196 [2016]). In any event, defendant's contention lacks merit. It is well established that "[w]here... the opposing party opens the door on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect to explain, clarify and fully elicit [the] question only partially examined on cross-examination" (People v Melendez, 55 N.Y.2d 445, 451 [1982] [internal quotation marks omitted]; accord People v Watts, 176 A.D.3d 981, 984 [2019]; see People v Patel, 169 A.D.3d 934, 935 [2019]). Defense counsel opened the door to such previously precluded evidence by eliciting testimony from the complainant on cross-examination that there were "[m]any... incidents that occurred in the past" between defendant and the complainant, and, thus, the prosecutor was entitled to elicit, on redirect examination, testimony regarding those prior incidents (see People v Conley, 192 A.D.3d 1616, 1620 [2021]; People v Ali, 192 A.D.3d 1132, 1133 [2021]; People v Nicosia, 18 A.D.3d 673 [2005]).

Defendant's contention that defense counsel rendered ineffective assistance by opening the door to the previously precluded evidence and by failing to object to its admission is likewise without merit. To prevail on a claim of ineffective assistance of counsel, "it is incumbent on [a] defendant to demonstrate the absence of strategic or other legitimate explanations for counsel's alleged shortcomings[;]... [a]s long as the defense reflects a reasonable and legitimate strategy under the circumstances and evidence presented, even if unsuccessful, it will not fall to the level of ineffective assistance" (People v Benevento, 91 N.Y.2d 708 712-713 [1998] [internal quotation marks omitted]; accord People v Olsen, 148 A.D.3d 829, 830 [2017]; see People v Pavone, 26 N.Y.3d 629, 646-647 [2015]). As defendant failed to demonstrate that his trial counsel's tactics lacked a legitimate strategic purpose (see Conley, 192 A.D.3d at 1620; People v Paul, 171 A.D.3d 1467, 1469 [2019]; People v LaDuke, 140 A.D.3d 1467, 1470-1471 [2016]) and that the risks of opening the door to the previously precluded evidence and failing to object to its admission outweighed their tactical advantages (see People v Roberson, 133 A.D.3d 793, 793 [2015]; People v Trovato, 68 A.D.3d 1023, 1024 [2009])...