Caseflicks

Appellate Division of the Supreme Court of the State of New York • 2015

People v. Heiserman

127 A.D.3d 1422 | 7 N.Y.S.3d 653

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case shows that irrelevant and prejudicial evidence may still be harmless when the admissible proof of an intentional order-of-protection violation is overwhelming, while preserved objections remain essential to appellate review of jury instructions.

Background

A stay-away order of protection barred defendant from having contact with the mother of his infant son. The order had been issued after his earlier conviction for second-degree criminal contempt. Amber Montour, who knew both defendant and the mother and recognized the mother’s distinctive vehicle, saw defendant sitting in its front passenger seat while the mother drove. She contacted police because she knew of the order.

At trial, the parties stipulated that the order was in effect and that defendant had a prior criminal-contempt conviction. Montour testified that she saw defendant from only a few feet away and made eye contact with him. The mother testified that she knowingly picked defendant up, that they discussed their child, and that defendant voluntarily stayed in the vehicle with her for 10 to 15 minutes without asking to leave.

The jury convicted defendant of first-degree criminal contempt. County Court sentenced him as a second felony offender to two to four years in prison. On appeal, defendant challenged the admission of his postarrest remarks to police, the prosecutor’s summation comments, and the adequacy of the jury instruction on intent.

Issues

Issue #1

Whether County Court improperly admitted defendant’s hostile postarrest remarks to a police officer.

Holding

Yes. The remarks were irrelevant to the charged offense and should not have been admitted, but the error was harmless.

Reasoning

To prove first-degree criminal contempt under Penal Law § 215.51 (c), the People had to establish that defendant intentionally disobeyed an order of protection of which he had notice or actual knowledge, that the order required him to stay away from the protected person, and that he had a qualifying prior contempt conviction within five years. The disputed questions were whether defendant had contact with the mother in violation of the order and whether he did so intentionally.

Relevant evidence may be excluded when its unfair prejudice substantially outweighs its probative value, but the threshold question is whether the evidence tends to prove a material fact. Defendant’s station-house statement—accusing the officer of harassing him and using profanity—addressed the officer’s supposed motives and defendant’s contempt for police. It neither admitted an intentional violation nor supplied a motive for violating the order.

The evidentiary error did not warrant reversal because there was no significant probability that the jury would have acquitted without the remarks. Defendant stipulated that the order existed, Montour identified him in the mother’s vehicle, and the mother confirmed that she knowingly met with him and that he willingly remained with her for 10 to 15 minutes. That evidence overwhelmingly established a knowing and intentional violation.

Issue #2

Whether the prosecutor denied defendant a fair trial by arguing in summation that Montour lacked a motive to testify falsely.

Holding

No. The prosecutor was entitled to respond to the defense attack on Montour’s credibility and alleged bias, and the comments did not deprive defendant of a fair trial.

Reasoning

Although defense counsel did not directly question Montour about a specific reason to lie, the defense challenged her credibility and capacity to observe the event. Counsel also told the jury in opening statement that witnesses may have biases and may invent testimony because they have reasons to do so.

Once the defense suggested that prosecution witnesses might be biased or motivated to fabricate, the prosecutor could fairly answer that Montour was not biased and had no motive to lie. Read in the context of the entire trial and both summations, the remarks were a permissible response to the defense theory.

Even assuming some portion of the argument exceeded fair comment, it was not so flagrant or pervasive that it denied defendant due process or a fair trial.

Issue #3

Whether County Court’s instruction on intent was inadequate.

Holding

No. The claim was unpreserved, and the instruction in any event adequately defined intent.

Reasoning

Defendant did not request a particular instruction on intent and did not object to the charge that County Court gave. He therefore failed to preserve the issue for appellate review under CPL 470.05 (2).

The Appellate Division also declined to exercise its interest-of-justice authority because the court closely followed the model jury instruction. It clearly explained that intent means a defendant’s conscious objective or purpose, which adequately stated the required mental state for the offense.