People v. Pham

• Decision Date: 12 June 2014
• Citation: 2014 N.Y. Slip Op. 04276,987 N.Y.S.2d 687,118 A.D.3d 1159
• Parties: The PEOPLE of the State of New York, Respondent, v. Marc PHAM, Appellant.
• Court: New York Supreme Court — Appellate Division

118 A.D.3d 1159
987 N.Y.S.2d 687
2014 N.Y. Slip Op. 04276

The PEOPLE of the State of New York, Respondent,
v.
Marc PHAM, Appellant.

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

June 12, 2014.

[987 N.Y.S.2d 689]

Paul J. Connolly, Delmar, for appellant.

P. David Soares, District Attorney, Albany (Steven M. Sharp of counsel), for respondent.

Before: STEIN, J.P., McCARTHY, ROSE and EGAN JR., JJ.

McCARTHY, J.

Appeal from a judgment of the County Court of Albany County (Herrick, J.), rendered September 20, 2012, upon a verdict convicting defendant of the crimes of rape in the first degree, criminal sexual act in the first degree, criminal contempt in the first degree, criminal contempt in the second degree and tampering with a witness in the fourth degree.

Defendant's ex-girlfriend (hereinafter the victim), who was also the mother of two of his children, accused defendant of raping her during a domestic dispute. At the time, a stay-away order of protection prohibited defendant from being in her presence or contacting her in any way. A new order of protection was entered, but defendant repeatedly attempted to call the victim from jail. He reached her twice and attempted to discourage her from cooperating with the police or prosecution. Following a trial, a jury convicted defendant of rape in the first degree, criminal sexual act in the first degree, criminal contempt in the first degree, criminal contempt in the second degree and tampering with a witness in the fourth degree. County Court sentenced defendant to an aggregate term of 22 years in prison and 15 years of postrelease supervision. Defendant appeals.

The jury's verdict was not against the weight of the evidence. Defendant only specifically challenges the verdict on the count of criminal contempt in the first degree. That count required proof that, “in violation of a duly served order of protection,” defendant, “with intent to harass, annoy, threaten or alarm a person for whose protection such order was issued, repeatedly ma[de] telephone calls to such person, whether or not a conversation ensue[d], with no purpose of legitimate communication” (Penal Law § 215.51 [b][iv] ). This Court must “weigh the evidence in light of the elements of the crime as charged without objection by defendant” ( People v. Noble, 86 N.Y.2d 814, 815, 633 N.Y.S.2d 469, 657 N.E.2d 490 [1995];accord People v. Cooper, 88 N.Y.2d 1056, 1058, 651 N.Y.S.2d 7, 673 N.E.2d 1234 [1996] ). The charge included all of the statutory language. In addition to the orders of protection and proof that defendant was personally served with them, the People submitted phone records and recordings indicating that defendant attempted to call the victim more than 50 times during the five days following the rape and actually spoke to the victim twice. The jury could find that the sheer volume of calls indicates an intent to harass or annoy the victim, but defendant also called back when the victim told him to stop calling and hung up on him ( see People v. Soler, 52 A.D.3d 938, 940, 859 N.Y.S.2d 514 [2008],lv. denied11 N.Y.3d 741, 864 N.Y.S.2d 400, 894 N.E.2d 664 [2008] ). Combined with defendant's prior abusive relationship with the victim that resulted in the orders of protection, this evidence was sufficient to allow the jury to conclude that defendant was contacting the victim to harass or annoy her, without any legitimate purpose ( see People v. Tomasky, 36 A.D.3d 1025, 1025–1026, 828 N.Y.S.2d 625 [2007],lv. denied8 N.Y.3d 927, 834 N.Y.S.2d 518, 866 N.E.2d 464 [2007] ).

[987 N.Y.S.2d 690]

County Court did not err in allowing evidence of the history of domestic violence between defendant and the victim. While not admissible to demonstrate bad character generally or a propensity to commit the charged crimes, “evidence of uncharged crimes or bad acts may be admitted if it establishes an element of the crime charged, such as the element of forcible compulsion in a rape case, is inextricably interwoven with the charged crime [ ], provide[s] necessary background[,] ... complete[s] a witness's narrative, or falls within the five general Molineux exceptions” ( People v. Higgins, 12 A.D.3d 775, 777–778, 784 N.Y.S.2d 232 [2004],lv. denied4 N.Y.3d 764, 792 N.Y.S.2d 7, 825 N.E.2d 139 [2005] [internal quotation marks and citations omitted]; see People v. Cook, 93 N.Y.2d 840, 841, 688 N.Y.S.2d 89, 710 N.E.2d 654 [1999] ). “Indeed, ‘[p]rior bad acts in domestic violence situations are more likely to be considered relevant and probative evidence because the aggression and bad acts are focused on one particular person, demonstrating the defendant's intent [and] motive’ ” ( People v. Burkett, 101 A.D.3d 1468, 1470, 957 N.Y.S.2d 417 [2012],lv. denied20 N.Y.3d 1096, 965 N.Y.S.2d 792, 988 N.E.2d 530 [2013], quoting People v. Westerling, 48 A.D.3d 965, 966, 852 N.Y.S.2d 429 [2008] ). Testimony from the victim's sister and brother-in-law concerning the turbulent nature of defendant's relationship with the victim was relevant and probative evidence on the issues of intent and forcible compulsion and provided necessary background regarding their history ( see People v. Higgins, 12 A.D.3d at 777–778, 784 N.Y.S.2d 232).

County Court did not err in admitting photographs of the victim taken during her medical examination. The sanction for failing to produce discoverable evidence pursuant to CPL 240.20 is left to the sound discretion of the trial court ( seeCPL 240.70[1]; People v. Jenkins, 98 N.Y.2d 280, 283–284, 746 N.Y.S.2d 651, 774 N.E.2d 716 [2002];People v. Carpenter, 88 A.D.3d 1160, 1161, 931 N.Y.S.2d 442 [2011] ). “Preclusion of evidence is a severe sanction, not to be employed unless any potential prejudice arising from the failure to disclose cannot be cured by a lesser sanction” ( People v. Jenkins, 98 N.Y.2d at 284, 746 N.Y.S.2d 651, 774 N.E.2d 716). The People did not provide defendant with copies of the photographs when he demanded them. ¹ The People represented that they showed defense counsel the photographs...