People v. Nichols, 1277

• Decision Date: 15 June 2018
• Docket Number: 1277,KA 15–00937
• Parties: The PEOPLE of the State of New York, Respondent, v. Justin M. NICHOLS, Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 39
78 N.Y.S.3d 590

The PEOPLE of the State of New York, Respondent,
v.
Justin M. NICHOLS, Defendant–Appellant.

1277
KA 15–00937

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

Entered June 15, 2018

REEVE BROWN PLLC, ROCHESTER (GUY A. TALIA OF COUNSEL), FOR DEFENDANT–APPELLANT.

BROOKS T. BAKER, DISTRICT ATTORNEY, BATH (JOHN C. TUNNEY OF COUNSEL), FOR RESPONDENT.

PRESENT: WHALEN, P.J., SMITH, LINDLEY, NEMOYER, AND CURRAN, JJ.

OPINION AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously modified as a matter of discretion in the interest of justice by amending the order of protection and as modified the judgment is affirmed, and the matter is remitted to Steuben County Court for further proceedings in accordance with the following opinion by NEMOYER , J.:

This appeal presents a convenient opportunity to examine the murky relationship between factually inconsistent verdicts and legal sufficiency review in criminal cases. Excepting a minor technical problem with the final order of protection issued at sentencing, we see no error in the judgment appealed from.

FACTS

A grand jury indicted defendant on six counts arising out of a December 2013 altercation with his estranged wife in the Town of Cohocton, Steuben County. At the time of the altercation, defendant's wife had an order of protection against him issued by the Steuben County Family Court.

Because the interplay of the various counts is critical to this appeal, we will describe the indictment in some detail:

• Count one charged defendant with criminal contempt in the first degree ( Penal Law § 215.51[b][i] ) and alleged that he, in violation of a "duly served order of protection, or such order of which he has actual knowledge because he was present in court when such order was issued," intentionally placed or attempted to place his wife in reasonable fear of physical injury, serious physical injury, or death by displaying a dangerous instrument, to wit, a metal pipe.

78 N.Y.S.3d 593

• Count two charged defendant with criminal contempt in the first degree ( § 215.51[b][vi] ) and alleged that he, by physical menace and in violation of a "duly served order of protection, or such order of which he has actual knowledge because he was present in court when such order was issued," intentionally placed or attempted to place his wife in reasonable fear of imminent serious physical injury.

• Count three charged defendant with criminal possession of a weapon in the third degree (§ 265.02[1] ) and alleged that he, after having been previously convicted of a crime, possessed a dangerous or deadly instrument, to wit, a metal pipe, with intent to use it unlawfully against his wife.

• Count four charged defendant with criminal mischief in the third degree (§ 145.05[2] ) and alleged that he intentionally damaged his wife's property in an amount exceeding $250.

• Count five charged defendant with reckless endangerment in the second degree (§ 120.20) and alleged that he recklessly engaged in conduct which created a substantial risk of serious physical injury to his wife.• Count six charged defendant with menacing in the second degree (§ 120.14[1] ) and alleged that he intentionally placed or attempted to place his wife in reasonable fear of physical injury, serious physical injury, or death by displaying a dangerous instrument, to wit, a metal pipe.

At trial, a Family Court clerk testified about the underlying order of protection. The clerk, who personally prepared the order, testified that it was in effect in December 2013, and that it required defendant to refrain from, inter alia, criminal acts of assault, harassment, menacing, reckless endangerment, or any other criminal offense against his wife. The clerk testified that the order was labeled "Justin Nichols- PS in ct," which meant that it was "personally served in court" upon defendant; a box was also checked stating "Order personally served in Court upon party against whom order was issued." Although it was not signed by defendant, the order further stated, in multiple places, that both parties were present in court on the date of its issuance. The order of protection itself was admitted as an exhibit, and our review thereof confirms that the Family Court clerk accurately described the various notations and entries on the document.

Defendant's wife then testified about the altercation at issue. Despite the protective order, the wife explained that she and defendant got together at his residence to try and work things out. According to the wife, they did meth all night, and, in the morning, defendant asked to use her car to go to court on an unrelated incident; the wife refused. The wife testified that defendant then got angry, took "something long and metal," and threatened to smash either her head or the windows of her car. The wife then got into her car, but before she could drive away, defendant came out of the house and smashed the car's front windshield, its two driver-side windows, and its back windshield "with that long metal object." The wife then drove away. In short, the wife testified that defendant threatened her with a "long metal object" and that he used that object to knock out the windows of her car.

The jury ultimately convicted defendant on count two (criminal contempt/first for violating the order of protection by physical menace) and count five (reckless endangerment/second), but it acquitted him on the remaining counts. Defendant did not object to any factual inconsistency or

78 N.Y.S.3d 594

repugnancy in the verdict before the jury was discharged.

County Court thereafter sentenced defendant, as a second felony offender, to an indeterminate term of 2 to 4 years' imprisonment on count two, and to a definite, one-year term of incarceration on count five. The sentences ran concurrently by operation of law (see Penal Law § 70.35 ). In addition, the court issued a final order of protection in the wife's favor, and it fixed the expiration date thereof at May 18, 2026. The court did not articulate, on the record, its reasons for issuing a final order of protection. Defendant did not object to the final order of protection on any ground.

Defendant now appeals.

DISCUSSION

I

Defendant lodges multiple challenges to the legal sufficiency and weight of the evidence underlying his two convictions (see generally People v. Delamota, 18 N.Y.3d 107, 113, 116–117, 936 N.Y.S.2d 614, 960 N.E.2d 383 [2011] ; People v. Romero, 7 N.Y.3d 633, 636–644, 826 N.Y.S.2d 163, 859 N.E.2d 902 [2006] ). Insofar as relevant here, a person is guilty of first-degree criminal contempt when, "in violation of a duly served order of protection, or such order of which [he or she] has actual knowledge because he or she was present in court when such order was issued, ... [he or she] ... by physical menace, intentionally places or attempts to place a person for whose protection such order was issued in reasonable fear of death, imminent serious physical injury or physical injury" ( Penal Law § 215.51[b][vi] ). Moreover, a "person is guilty of reckless endangerment in the second degree when he [or she] recklessly engages in conduct which creates a substantial risk of serious physical injury to another person" (§ 120.20). The jury was instructed consistently with these statutory provisions.

A

Defendant first argues that the criminal contempt conviction is "legally insufficient on the [element] of physical menace" and that the reckless endangerment conviction is "legally insufficient on the [element of] conduct which created a substantial risk of serious physical injury." Critically, however, defendant does not claim that the trial evidence, viewed in the light most favorable to the People, failed to establish the challenged elements beyond reasonable doubt, or, more precisely, that no reasonable juror could have so found (see generally Jackson v. Virginia, 443 U.S. 307, 313–324, 99 S.Ct. 2781, 61 L.Ed.2d 560 [1979] ; People v. Danielson, 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ). Quite the opposite; defendant all but concedes the legal sufficiency of the trial proof underlying the challenged elements by acknowledging that "there may have been proof in the record to support the convictions generally." Defendant's effective concession is well taken; viewing his wife's testimony in the light most favorable to the People, a rational juror could easily find that the People established the challenged elements (physical menace and substantial risk of serious physical injury) beyond reasonable doubt.

Instead, defendant argues only that the convictions on counts two and five are legally insufficient due to the jury's acquittals on the remaining counts. According to defendant, "when the conduct that was plainly rejected by the jury is removed from consideration, there is nothing left to support the physical menace conviction [count two] or the conviction for engaging in conduct that created a substantial risk

78 N.Y.S.3d 595

of serious physical injury [count five]." Put differently, "the only conduct upon which defendant could be found guilty of the crimes for which he was convicted was smashing [his wife's] car windows...