People v. Defilippo, 106641.

• Decision Date: 13 July 2017
• Docket Number: 106641.
• Citation: 152 A.D.3d 860,60 N.Y.S.3d 500
• Parties: The PEOPLE of the State of New York, Respondent, v. Michael J. DEFILIPPO, Appellant.
• Court: New York Supreme Court — Appellate Division

152 A.D.3d 860

60 N.Y.S.3d 500

The PEOPLE of the State of New York, Respondent,

v.Michael J. DEFILIPPO, Appellant.

106641.

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

July 13, 2017.

Paul R. Corradini, Elmira, for appellant.

Stephen K. Cornwell Jr., District Attorney, Binghamton (Stephen Ferri of counsel), for respondent.

Before: McCARTHY, J.P., LYNCH, DEVINE, CLARK and AARONS, JJ.

CLARK, J.

Appeal from a judgment of the County Court of Broome County (Cawley, J.), rendered November 8, 2013, upon a verdict convicting defendant of the crime of criminal contempt in the second degree (three counts).

In March 2012, after leaving several voice mail messages on the victim's cell phone in December 2011, January 2012 and February 2012 in violation of an order of protection directing defendant to refrain from any contact with the victim, defendant was charged by indictment with three counts each of criminal contempt in the first degree and aggravated harassment in the second degree. The matter proceeded to a trial and, at the close of evidence, the People requested that the jury be instructed to consider criminal contempt in the second degree as a lesser included offense of criminal contempt in the first degree. Over defendant's objection, County Court granted the request and so charged the jury. The jury ultimately returned a verdict convicting defendant of three counts of criminal contempt in the second degree, as lesser included offenses of the charges of criminal contempt in the first degree, and acquitted defendant of the aggravated harassment charges. County Court denied defendant's subsequent motion to vacate the convictions and sentenced defendant to concurrent one-year conditional discharges on each count. Defendant now appeals, solely challenging County Court's lesser included offense ruling.

To establish entitlement to a lesser included offense charge, the party seeking the charge must demonstrate, first, "that it is impossible to commit the greater crime without concomitantly committing the lesser offense by the same conduct" and, second, that there is "a reasonable view of the evidence to support a finding that the defendant committed the lesser offense but not the greater" ( People v. Van Norstrand, 85 N.Y.2d 131, 135, 623 N.Y.S.2d 767, 647 N.E.2d 1275 [1995] ; see CPL 1.20[37] ; 300.50 [1], [2]; People v. Glover, 57 N.Y.2d 61, 63–64, 453 N.Y.S.2d 660, 439 N.E.2d 376 [1982] ). The first prong of this analysis "requires the court to compare the statutes in the abstract, without reference to any factual particularities of the underlying prosecution" ( People v. Repanti, 24 N.Y.3d 706, 710, 5 N.Y.S.3d 332, 28 N.E.3d 511 [2015] ; see People v. Davis, 14 N.Y.3d 20, 23, 896 N.Y.S.2d 707, 923 N.E.2d 1095 [2009] ; People v. Glover, 57 N.Y.2d at 64, 453 N.Y.S.2d 660, 439 N.E.2d 376 ). In contrast, the second prong "calls for an assessment of the evidence of the particular criminal transaction in the individual case" ( People v. Glover, 57 N.Y.2d at 64, 453 N.Y.S.2d 660, 439 N.E.2d 376 ) and requires that there be " ‘some identifiable, rational basis on which the jury could reject a portion of the prosecution's case which is indispensable to establishment of the higher crime and yet accept so much of the proof as would establish the lesser crime’ " ( People v. Rivera, 23 N.Y.3d 112, 121, 989 N.Y.S.2d 446, 12 N.E.3d 444 [2014], quoting People v. Scarborough, 49 N.Y.2d 364, 369–370, 426 N.Y.S.2d 224, 402 N.E.2d 1127 [1980] ; accord People v. Acevedo, 141 A.D.3d 843, 845, 35 N.Y.S.3d 752 [2016] ).

Turning to the applicable statutory provisions, a defendant is guilty of criminal contempt in the first degree when, in violation of an order of protection "of which the defendant has actual knowledge because he or she was present in court when such order was issued," and "with intent to harass, annoy, threaten or alarm a person for whose protection such order was issued," he or she "repeatedly makes telephone calls to such person ... with no purpose of legitimate communication" ( Penal Law § 215.51[b][iv] ). A conviction for criminal contempt in the second degree requires, as relevant here, that the defendant engage in "[i]ntentional disobedience or resistance to the lawful process or other mandate of a court" ( Penal Law § 215.50[3] ). Here, an abstract comparison of the relevant statutes plainly reveals that it would be theoretically impossible to engage in conduct sufficient to constitute criminal contempt in the first...