SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

166 

KA 12-01629 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT 

V MEMORANDUM AND ORDER

ADAM M. WERTMAN, DEFENDANT-APPELLANT. 

 

CHARLES A. MARANGOLA, MORAVIA, FOR DEFENDANT-APPELLANT. 

JON E. BUDELMANN, DISTRICT ATTORNEY, AUBURN (HEATHER M. DESTEFANO OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Cayuga County Court (Thomas G.

Leone, J.), rendered June 28, 2012. The judgment convicted defendant,

after a nonjury trial, of aggravated criminal contempt (five counts),

criminal obstruction of breathing or blood circulation (three counts)

and harassment in the second degree (two counts). 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed. 

Memorandum: Defendant appeals from a judgment convicting him

upon a nonjury verdict of, inter alia, five counts of aggravated

criminal contempt (Penal Law § 215.52 [3]) and three counts of

criminal obstruction of breathing or blood circulation (§ 121.11 [a]). 

Defendant failed to preserve for our review his challenge to the legal

sufficiency of the evidence inasmuch as he failed to renew his motion

for a trial order of dismissal after presenting evidence (see People v

Hines, 97 NY2d 56, 61, rearg denied 97 NY2d 678). In any event,

defendant’s challenge is without merit. “[T]he victim’s testimony

constituted ‘competent evidence which, if accepted as true, would

establish every element of [the] offense[s] charged’ ” (People v

Smith, 41 AD3d 1093, 1094, lv denied 9 NY3d 1039, quoting CPL 70.10

[1]; see People v Pettengill, 36 AD3d 1070, 1071, lv denied 8 NY3d

948; People v Liggins, 2 AD3d 1325, 1326). Contrary to defendant’s

contention, it cannot be said that the victim’s testimony was

“manifestly untrue, physically impossible, contrary to experience, or

self-contradictory” (People v Harris, 56 AD3d 1267, 1268, lv denied 11

NY3d 925; see People v Latorre, 94 AD3d 1429, 1430, lv denied 19 NY3d

998, reconsideration denied 20 NY3d 987). 

Viewing the evidence in light of the elements of the crimes in

this bench trial (see People v Danielson, 9 NY3d 342, 349), we

conclude that the verdict is not against the weight of the evidence

(see generally People v Bleakley, 69 NY2d 490, 495). Although a
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KA 12-01629 

different verdict would not have been unreasonable (see Danielson, 9

NY3d at 348), we conclude that, “[b]ased on the weight of the credible

evidence, [County C]ourt . . . was justified in finding the defendant

guilty beyond a reasonable doubt” (id.; see People v Romero, 7 NY3d

633, 642-643). “ ‘Great deference is to be accorded to the

fact[]finder’s resolution of credibility issues based upon its

superior vantage point and its opportunity to view witnesses, observe

demeanor and hear the testimony’ ” (People v Gritzke, 292 AD2d 805,

805-806, lv denied 98 NY2d 697), and we perceive no reason to disturb

the court’s credibility determinations.

Contrary to the further contention of defendant, we conclude that

the court did not err in its Molineux ruling in allowing the People to

introduce testimony concerning defendant’s prior acts of domestic

violence against the victim. That testimony was “relevant to provide

background information concerning the context and history of

defendant’s relationship with the victim” (People v Wolff, 103 AD3d

1264, 1265, lv denied 21 NY3d 948; see People v Meseck, 52 AD3d 948,

950, lv denied 11 NY3d 739; People v Nunez, 51 AD3d 1398, 1399-1400,

lv denied 11 NY3d 792), and it was also relevant to the issue of

defendant’s intent (see People v Crump, 77 AD3d 1335, 1336, lv denied

16 NY3d 857; People v Williams, 29 AD3d 1217, 1219, lv denied 7 NY3d

797). Further, the probative value of such testimony exceeded its

potential for prejudice (see Wolff, 103 AD3d at 1266; Crump, 77 AD3d

at 1336; Nunez, 51 AD3d at 1399-1400).

We reject defendant’s further contention that the court’s

Sandoval ruling constituted an abuse of discretion (see People v

Sandoval, 34 NY2d 371, 374). Defendant’s “intentional violation of

prior court orders bore on his honesty, truthfulness and willingness

to advance his own interests at the expense of society, all bearing on

his testimonial credibility” (People v Olson, 110 AD3d 1373, 1375; see

People v Salsbery, 78 AD3d 1624, 1626, lv denied 16 NY3d 836; People v

Foster, 52 AD3d 957, 960-961, lv denied 11 NY3d 788), and “[t]he

similarity between the prior convictions and the instant crimes does

not by itself preclude cross-examination concerning those prior

convictions” (People v Hammond, 84 AD3d 1726, 1726-1727, lv denied 17

NY3d 816; see People v Hayes, 97 NY2d 203, 208; People v Paige, 88

AD3d 912, 912, lv denied 18 NY3d 885). Although defendant contends

that the record does not establish that the court properly balanced

the probative value of his prior convictions against their potential

for undue prejudice, “it is well settled that ‘an exercise of a trial

court’s Sandoval discretion should not be disturbed merely because the

court did not provide a detailed recitation of its underlying

reasoning . . . , particularly where, as here, the basis of the

court’s decision may be inferred from the parties’ arguments’ ”

(People v Mull, 89 AD3d 1445, 1445, lv denied 19 NY3d 965, quoting

People v Walker, 83 NY2d 455, 459).

Defendant further contends that the court abused its discretion

in denying his late request to call a particular individual as an

alibi witness. We note, however, that defendant waived that

contention because, prior to jury selection, defense counsel advised
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KA 12-01629 

the court that he did not intend to call that individual as a witness

and thus that the court “[did not] need to address any issues” with

respect to such individual (see generally People v Harris, 97 AD3d

1111, 1112, lv denied 19 NY3d 1026; People v Hamilton, 96 AD3d 1518,

1519, lv denied 19 NY3d 997). 

Finally, we reject defendant’s challenge to the severity of the

sentence. The court imposed the minimum term of incarceration allowed

on defendant’s conviction, as a second felony offender, of aggravated

criminal contempt, and the terms of incarceration imposed on the

remaining convictions were directed to run concurrently thereto.

Entered: February 14, 2014 Frances E. Cafarell

Clerk of the Court