State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 16, 2015 106041 

________________________________

THE PEOPLE OF THE STATE OF 

NEW YORK,

Respondent,

v MEMORANDUM AND ORDER

FREDERICK D. HEISERMAN, 

Appellant.

________________________________

Calendar Date: February 19, 2015

Before: Peters, P.J., McCarthy, Rose and Clark, JJ.

__________

Cheryl L. Sovern, Clifton Park, for appellant.

Andrew J. Wylie, District Attorney, Plattsburgh (Nicholas

J. Evanovich of counsel), for respondent. 

__________

McCarthy, J.

Appeal from a judgment of the County Court of Franklin

County (Main Jr., J.), rendered June 23, 2013, upon a verdict

convicting defendant of the crime of criminal contempt in the

first degree.

Amber Montour observed defendant in the front passenger

seat of a vehicle driven by the mother of defendant's infant son

(hereinafter the mother). At that time, a stay-away order of

protection was in place prohibiting defendant from having any

contact with the mother, which had been entered by County Court

upon his prior conviction of criminal contempt in the second

degree. Montour, who knew the vehicle occupants and was aware of

the order of protection, contacted the police. A police officer

stopped the vehicle, then driven by the mother's brother, who
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indicated that he had dropped off the mother at school, and

arrested defendant, a passenger in the vehicle. 

At trial, the parties stipulated to the terms of the order

of protection and that defendant had a prior criminal contempt

conviction. Montour testified that as she drove past the

distinct vehicle driven by the mother, with which she was

familiar, she saw the occupants from a "few feet" away and made

eye contact with defendant. The mother testified, under

subpoena, acknowledging that she was aware of the terms of the

order of protection but wanted to see defendant that day and

still loved him. She explained that she left home for school

with her brother in the distinct car and picked up defendant;

defendant sat in the front passenger seat, and she had a

discussion with him regarding their child. She recounted that

defendant got into her vehicle willingly, remained for 10 to 15

minutes and never asked to get out. Upon his conviction of

criminal contempt in the first degree, County Court sentenced

defendant, as a second felony offender, to 2 to 4 years in

prison. Defendant appeals. 

Defendant challenges County Court's trial ruling regarding

his postarrest remarks to police. This argument centers on the

court's ruling permitting a police officer to recount the

substance of defendant's postarrest statements over his objection

that the prejudicial effect of this evidence outweighed its

probative value. Specifically, the officer testified that, after

defendant was taken to the police station, he stated to an

officer, "You're a nightmare. You were after me. You're doing

this to me. You're harassing me, you f*cking b*tch." 

While relevant evidence is generally admissible unless it

violates an exclusionary rule, "relevant evidence . . . may

still be excluded by the trial court in the exercise of its

discretion if its probative value is substantially outweighed by

the danger that it will unfairly prejudice the other side or

mislead the jury" (People v Scarola, 71 NY2d 769, 777 [1988]; see

People v Caruso, 6 AD3d 980, 984-985 [2004], lv denied 3 NY3d 704

[2004]). However, evidence is relevant only "if it tends to

prove the existence or non-existence of a material fact, i.e., a

fact directly at issue in the case" (People v Primo, 96 NY2d 351,
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355 [2001]; see People v Mateo, 2 NY3d 383, 424 [2004], cert

denied 542 US 946 [2004]), and "[e]vidence of merely slight,

remote or conjectural significance will ordinarily be

insufficiently probative to outweigh [the] countervailing risks

[of prejudice]" (People v Primo, 96 NY2d at 355 [internal

quotation marks and citations omitted]).

Here, the People were required to prove that defendant

intentionally disobeyed an order of protection that was "duly

served" or of which he had "actual knowledge" because he was

present in court when the order was issued, that the order

required him to stay away from the protected party, and that he

had been convicted of criminal contempt in the first or second

degree in the prior five years (Penal Law § 215.51 [c]; see Penal

Law § 215.50 [3]). The only disputed issues at trial were

whether defendant had violated the order of protection and had

done so intentionally. Defendant's remarks to the police officer

were directed at the officer's motives and conduct and reflected

defendant's disdain for her or the police, which were not

relevant to or probative of any element of the charged crime or

any material fact in issue (compare People v Austin, 115 AD3d

1063, 1065 [2014], lv denied 23 NY3d 960 [2014]). The remarks do

not suggest a motive for defendant's violation of the order of

protection and did not constitute an admission by defendant that

he had intentionally violated the order of protection. Thus, as

defendant's statements are not relevant to or probative of his

motive or any disputed fact or element of the crime charged, they

should not have been admitted into evidence. However, given the

overwhelming evidence of defendant's guilt – including his

stipulation that the order of protection was in place, Montour's

testimony placing defendant in the vehicle with the mother and

the mother's testimony that they voluntarily remained together in

the vehicle for 10 to 15 minutes – there is no "significant

probability" that he would have been acquitted had it not been

for the admission of his postarrest statements (People v

Crimmins, 36 NY2d 230, 241-242 [1975]; see People v Byer, 21 NY3d

887, 889 [2013]).

We are unpersuaded by defendant's further contention that

the prosecutor's references in summation to Montour's lack of a

motive to testify against defendant were improper and referred to
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facts not in evidence. While defense counsel's crossexamination of Montour did not directly address her motives for

testifying, it did question her credibility and ability to

observe the incident. In his opening statement, defense counsel

referred generally to witness "biases" and asserted, among other

things, that "[p]eople sometimes make things up because they have

reasons to make things up." Where, as here, defense counsel

attacks the credibility and alludes to the motives and biases of

prosecution witnesses, the prosecutor is entitled in summation to

fairly respond and argue that the witness is not biased and had

no motive to lie (see People v Marcus, 112 AD3d 652, 653 [2013],

lv denied 22 NY3d 1140 [2014]; People v Barber, 13 AD3d 898, 900

[2004], lv denied 4 NY3d 796 [2005]; People v Alexander, 255 AD2d

708, 710 [1998], lv denied 93 NY2d 897 [1999]; see generally

People v Halm, 81 NY2d 819, 821 [1993]). Viewing the

prosecutor's remarks in the context of the trial and summations

as a whole, defendant was not deprived of a fair trial. Even if

the prosecutor's remarks were not a fair comment on the evidence

or a measured response to defense counsel's arguments, they "did

not rise to the flagrant and pervasive level of misconduct which

would deprive defendant of due process" or a fair trial (People v

Robinson, 16 AD3d 768, 770 [2005], lv denied 4 NY3d 856 [2005]).

Finally, defendant's contention that County Court's charge

was inadequate was not preserved for appellate review, as he did

not make a request for a particular charge on intent and did not

object to the charge as given (see CPL 470.05 [2]; People v

Green, 119 AD3d 23, 30 [2014], lv denied 23 NY3d 1062 [2014]). 

In any event, as County Court closely followed the Model Jury

Charge, explaining clearly that intent means "conscious objective

or purpose" (see CJI[NY] Penal Law § 215.51 [c]), no corrective

action is warranted in the interest of justice (see CPL 470.15

[6] [a]).

Peters, P.J., Rose and Clark, JJ., concur.
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ORDERED that the judgment is affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court