People v. Doran
| Decision Date | 09 July 2007 |
| Docket Number | No. 05050248.,05050248. |
| Citation | 48 N.Y.S.3d 266 (Table) |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Richard L. DORAN, Defendant. |
| Court | New York County Court |
Hon. Matthew J. Murphy, III, Niagara County District Attorney, Charles Peressi, of counsel, for The People.
Alan S. Hoffman, Attorney for Defendant, Richard L. Doran.
POSITION OF THE PARTIES:
Defendant, Richard L. Doran (Doran) in a post conviction/sentence CPL § 440 Motion requests this Court to set aside his conviction or, in the alternative, to re-sentence him. Doran asserts inter alia that there was insufficient proof to sustain his conviction for Stalking in the Fourth Degree; the sentence imposed upon him for his Criminal Contempt in the Second Degree was harsh and excessive; he was denied due process because of ineffective assistance of counsel; and the court did not comply with the strict requirements of CPL § 320.10 regarding waiver of a jury trial.
The People assert there did exist sufficient proof to sustain defendant's conviction for Stalking in the Fourth Degree; the defense erred in its interpretation of the Criminal Contempt statute; Defendant received adequate representation and the sentence was conducted in a fundamentally fair manner and the court complied with CPL § 320.10.
The Appeal from the trial conviction and sentence of this court is pending in Niagara County Court; after an initial few days of incarceration, this court granted defendant a stay of execution of his sentence pending the perfection of his appeal and the defendant is free on bail.
a. Stalking in the Fourth Degree
The applicability of the Criminal Procedure Law § 440.10(2)(5) to a non record court has always been curious to this court. However, a Record on Appeal exists for the Niagara County Court to review for sufficiency upon which the conviction was based. Insufficiency of proof is a legal question which is reviewable on appeal and, therefore, the hearing request on that issue must be denied by this court. Were this court not constrained by CPL § 440.10(2)(b), it would sustain the conviction as the defense argument is misplaced. People v. Watson, 32 A.D.3d 1199, 821 N.Y.S.2d 328 (4th Dept.) is not applicable because it relates to § 120.45(1) of the Penal Law and defendant was convicted under Section 120.45(2). Bernadette Bucolo (Bucolo) testified that Doran told her he loved her, had things delivered to her house and came to her house pounding on the front door. Bucolo was home alone with her two year old son when she saw Doran's car. She was scared and afraid and hid in the bathroom. After hearing her garage door go up, she found a pile of notes left there from Doran. Bucolo had her phone number changed three times, but Doran continued to call her. She told him 100 times she did not want to see him. Doran threatened to tell Bucolo's husband they were having an affair. Doran wanted to have an affair. Doran's actions were upsetting to Bucolo. She cried begging him to stop. Bucolo eventually became afraid to go outside even to play with her children because Doran would drive up and down the street. The investigating Niagara County Sheriff Deputy testified to Bucolo's demeanor as crying and being upset. Numerous letters (Exhibits "A" to "X") were admitted into evidence by consent. Doran admitted sending them to Bucolo. The court credited Bucolo's testimony. As such, the People proved that the defendant caused material harm to the mental or emotional health of Bucolo (Cf PL § 120.45(2) and People v. Stuart, 100 N.Y.2d 412, 765 N.Y.S.2d 1, 797 N.E.2d 28 (2003).
(b) Criminal Contempt in the Second Degree
Likewise, the sufficiency of evidence for defendant's conviction for Criminal Contempt in the Second Degree is a question of law for the Appellate Court to decide. The applicability of CPL § 440.10(2)(b) requires denial of the defense motion for a hearing. But even without that section of law, this court believes the proof is sufficient to sustain a conviction under Penal Law Section 215.50(3). Defense, again, misconstrues the First Department's 2005 case of People v. DeMisse, 24 A.D.3d 118, 804 N.Y.S.2d 743. While the felony of Criminal Contempt First Degree [PL 215.51(B)(i) ] needs reasonable fear of physical injury, serious physical injury or death, the misdemeanor of Criminal Contempt Second [PL 215.50(3) ] requires only an intentional disobedience of a lawful mandate of the court.
Bucolo testified that on August 24, 2005, she and her children went to Tops (a supermarket in the Town of Lockport). When she came out of Tops with her children, Doran drove to her around her car, honking his car's horn, calling her name. She was scared, went back into Tops getting help from a checkout girl to call the Police.
Doran testified at trial (his affidavit is attached to 440 CPL motion, states what he "would have said"), he was at Tops in the Town of Lockport. He was returning from Youngstown and had an appointment at Gonzo's (a bar in downtown City of Lockport). Doran was at BBQ Pit for lunch, then went cruising around area for commercial property. He saw BUCOLO at a distance. He knew she saw him. Doran was 25–30 yards away, put his arm in air, but did not say anything. This court has previously ordered a full stay away Order of Protection (the text of which is obscured in record on appeal as bottom half is folder over), but in any event, this court credits Bucolo's version of facts, especially in light of Doran's incredible testimony he was driving from Youngstown to downtown City of Lockport and after having lunch, he somehow ended up in the Town of Lockport after 6:30 p.m. There is no commercial property for sale in Tops Plaza and the route described by Doran certainly was not on his way home to Tonawanda.
Even if Doran's arrival in the Tops parking lot (a grocery store) was a chance encounter, Bucolo's testimony that he was honking his horn, calling Bucolo's name and driving his car around her suggests defendant's conduct was not merely part of a fortuitous chain of events (See People v. Nawaz, 183 Misc.2d 194, 702 N.Y.S.2d 520 (N.Y.Crim. Ct.1999) and People v. Garrity, 2002 WL 31748578 ). Reviewing the evidence in a light most favorable to the People, and according great deference to the fact finder's credibility determinations, this court must deny the defense request on this ground. [See People v. Hure, 16 A.D.3d 774, 790 N.Y.S.2d 591 (2005) and People v. Krzykowski, 293 A.D.2d 877, 742 N.Y.S.2d 138 (2002), lv. denied 100 N.Y.2d 643, 769 N.Y.S.2d 209, 801 N.E.2d 430 (2003) ].
Whether or not this court's sentence of defendant was harsh or excess is another issue reviewable on appeal by the Niagara County Court. That court can modify the sentence of this court pursuant to CPL § 470.15.
Nor does CPL § 440.20 authorize this court to reduce defendant's original sentence as defendant is entitled to relief under that section only if the original sentence was "unauthorized, illegally imposed or otherwise invalid as a matter of law." [CPL § 440.20(1) ; People v. Butts 30 A.D.3d 1013, 815 N.Y.S.2d 839 (4th Dept.2006).
Finally, once defendant starts service of the sentence imposed by this court, it is without authority to resentence. CPL § 430.10. Accordingly, defense motion to resentence is denied.
This court requires, upon request by the defendant, for a non-jury trial, to have him execute in open court, a jury waiver and Parker warning acknowledgment. At trial, this court marks the jury waiver as Court Exhibit "1", and again requesting from both parties their consent to enter the same into evidence. No objection was received in this case. Once the defendant makes a knowingly intelligent waiver in open court, the court is bound to accept it (Cf People v. Saunders, 19 AD3d 744, 795 N.Y.S.2d 446 (3d Dept.2005) ]. The Appellate Court can review this procedure to see if the statutory requirements have been met. Defense motion for a hearing on...
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