People v. Pacienza

• Decision Date: 10 January 2012
• Citation: 91 A.D.3d 672,2012 N.Y. Slip Op. 00227,935 N.Y.S.2d 896
• Parties: The PEOPLE, etc., respondent, v. Vincent PACIENZA, appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 00227
91 A.D.3d 672
935 N.Y.S.2d 896

The PEOPLE, etc., respondent,
v.
Vincent PACIENZA, appellant.

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

Jan. 10, 2012.

Dennis M. Lemke, Mineola, N.Y., for appellant.

Kathleen M. Rice, District Attorney, Mineola, N.Y. (Tammy J. Smiley and Andrea M. DiGregorio of counsel), for respondent.

[91 A.D.3d 672] Appeal by the defendant from a judgment of the Supreme [91 A.D.3d 673] Court, NassauCounty

[935 N.Y.S.2d 897]

(Donnino, J.), rendered January 21, 2011, convicting him of unlawful surveillance in the second degree, after a nonjury trial, and imposing sentence.

ORDERED that the judgment is affirmed, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings pursuant to CPL 460.50(5).

Contrary to the defendant's contention, Penal Law § 250.45(3)(a) is not unconstitutionally vague. The statute provides a person of ordinary intelligence with a reasonable opportunity to know the conduct that is proscribed and contains clear standards for enforcement ( see People v. Stuart, 100 N.Y.2d 412, 420, 765 N.Y.S.2d 1, 797 N.E.2d 28; People v. Shack, 86 N.Y.2d 529, 538, 634 N.Y.S.2d 660, 658 N.E.2d 706; People v. Eun Sil Jang, 17 A.D.3d 693, 793 N.Y.S.2d 540). In addition, the rebuttable presumption set forth in Penal Law § 250.45(3)(b) is not a violation of due process rights, as there is a rational connection between the facts proved and the fact presumed ( see People v. Leyva, 38 N.Y.2d 160, 165–166, 379 N.Y.S.2d 30, 341 N.E.2d 546; People v. Terra, 303 N.Y. 332, 335, 102 N.E.2d 576; People v. Rosano, 69 A.D.2d 643, 656, 419 N.Y.S.2d 543, affd. 50 N.Y.2d 1013, 431 N.Y.S.2d 683, 409 N.E.2d 1357).

Viewing the evidence in the light most favorable to the prosecution ( see People v. Contes, 60 N.Y.2d 620, 621, 467 N.Y.S.2d 349, 454 N.E.2d 932), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt. Moreover, in fulfilling our responsibility to conduct an independent review of the weight of the evidence ( see CPL 470.15[5]; People v. Danielson, 9 N.Y.3d 342, 348, 849 N.Y.S.2d 480, 880 N.E.2d 1), we nevertheless accord great deference to the trier of fact's opportunity to view the witnesses, hear the testimony, and observe demeanor ( see People v. Mateo, 2 N.Y.3d 383, 410, 779 N.Y.S.2d 399, 811 N.E.2d 1053, cert. denied 542 U.S. 946, 124 S.Ct. 2929, 159 L.Ed.2d 828; People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d...