People v. Cung

• Decision Date: 27 December 2013
• Citation: 112 A.D.3d 1307,978 N.Y.S.2d 497,2013 N.Y. Slip Op. 08687
• Parties: The PEOPLE of the State of New York, Respondent, v. Van T. CUNG, Defendant–Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1307
978 N.Y.S.2d 497
2013 N.Y. Slip Op. 08687

The PEOPLE of the State of New York, Respondent,
v.
Van T. CUNG, Defendant–Appellant. (Appeal No. 1.).

Supreme Court, Appellate Division, Fourth Department, New York.

Dec. 27, 2013.

[978 N.Y.S.2d 498]

The Legal Aid Bureau Of Buffalo, Inc., Buffalo (Robert L. Kemp of Counsel), for Defendant–Appellant.

Frank A. Sedita, III, District Attorney, Buffalo (David Panepinto of Counsel), for Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, and WHALEN, JJ.

MEMORANDUM:

In appeal No. 1, defendant appeals from a judgment convicting him upon a jury verdict of criminal contempt in the first degree (Penal Law § 215.51[b][i] ) and endangering the welfare of a child (§ 260.10[1] ) and, in appeal No. 2, he appeals from a judgment convicting him upon the same jury verdict of criminal contempt in the second degree (§ 215.50[3] ) as a lesser included offense of criminal contempt in the first degree (§ 215.51[b] [ii] ). In both appeals, defendant contends that the evidence is legally insufficient to support his conviction of the crimes of criminal

[978 N.Y.S.2d 499]

contempt in the first and second degrees, and that the verdict with respect to those crimes is against the weight of the evidence. We affirm.

As defendant correctly concedes, his challenge to the legal sufficiency of the evidence is unpreserved for our review inasmuch as “his motion for a trial order of dismissal was not specifically directed at the grounds advanced on appeal” (People v. Wright, 107 A.D.3d 1398, 1401, 967 N.Y.S.2d 296; see People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919). In any event, we reject defendant's challenge.

With respect to appeal No. 1, defendant contends that the evidence is legally insufficient to establish that he knowingly and intentionally violated the June 2010 no-contact order of protection issued in favor of the victim (hereafter, first order of protection), and that the verdict is against the weight of the evidence in that regard. We reject those contentions. It is undisputed that defendant was present in court and represented by an attorney when the first order of protection was issued, that he signed the order, and that he received a copy thereof. Although defendant claimed that he did not fully understand the order of protection because he speaks only Chin, a Burmese dialect, the People introduced evidence that the order of protection was explained to defendant in Burmese, and that defendant understood that he had to stay away from, and could not contact, the victim. A Burmese interpreter testified that, on the date the first order of protection was issued, he translated the order of protection from English to Burmese and explained it to defendant ( see People v. Wilmore, 305 A.D.2d 117, 118, 761 N.Y.S.2d 597, lv. denied100 N.Y.2d 589, 764 N.Y.S.2d 401, 796 N.E.2d 493). Further, a caseworker testified that, after the incident underlying defendant's conviction of criminal contempt in the first degree, defendant admitted to her that he knew there was an order of protection in place at the time of the incident and that he understood its meaning. We thus conclude that “[t]he evidence is legally sufficient ... to establish defendant's knowledge of the existence and contents of [the first] order of protection [and] the conduct prohibited thereby” (People v. Roman, 13 A.D.3d 1115, 1115, 787 N.Y.S.2d 568, lv. denied4 N.Y.3d 802, 795 N.Y.S.2d 178, 828 N.E.2d 94; see Wilmore, 305 A.D.2d at 118, 761 N.Y.S.2d 597).

Contrary to the further contention of defendant in appeal No. 1, the evidence is legally sufficient to establish that he intentionally placed or attempted to place the victim in reasonable fear of physical injury ( seePenal Law § 215.51[b][i]; see also People v. Harrison, 270 A.D.2d 876, 876, 705 N.Y.S.2d 916, lv. denied95 N.Y.2d 797, 711 N.Y.S.2d 165, 733 N.E.2d 237). “It is well established that a defendant may be presumed to intend the natural and probable consequences of his [or her] actions” (Roman, 13 A.D.3d at 1116, 787 N.Y.S.2d 568 [internal quotation marks omitted] ), and that “[i]ntent may be inferred from conduct as well as the surrounding circumstances” (People v. Steinberg, 79 N.Y.2d 673, 682, 584 N.Y.S.2d 770, 595 N.E.2d 845; see People v. Kelly, 79 A.D.3d 1642, 1642, 913 N.Y.S.2d 846, lv. denied16 N.Y.3d 832, 921 N.Y.S.2d 196, 946 N.E.2d 184). Here, the People established that, after calling the victim 23 times, defendant knocked on the door to the victim's apartment and, when she did not answer, he entered the apartment through an upstairs door or window. The victim called 911 and then fled through a window onto the roof of the porch with the parties' infant daughter strapped to her back because, according to the victim, she was afraid defendant would

[978 N.Y.S.2d 500]

kill her. Defendant then picked up a knife and, according to several police officers who responded to the scene, waved the knife at the victim and shouted at her through the window. A neighbor testified that the victim was “crying” and “screaming” on the roof of the porch, and that she “sounded terrified.” We thus conclude that the evidence is legally sufficient to establish that...