The Fourth Department, in a full-fledged opinion by Justice NeMoyer, rejected defendant’s arguments that (1) the People failed to prove the “service of the order” element of criminal contempt, and (2) his acquittal on some counts of the indictment rendered the evidence legally insufficient for the counts on which he was convicted.
… [D]efendant argues only that the convictions on counts two and five are legally insufficient due to the jury’s acquittals on the remaining counts. According to defendant, “when the conduct that was plainly rejected by the jury is removed from consideration, there is nothing left to support the physical menace conviction [count two] or the conviction for engaging in conduct that created a substantial risk of serious physical injury [count five].” Put differently, “the only conduct upon which defendant could be found guilty of the crimes for which he was convicted was smashing [his wife’s] car windows with a metal pipe while she was inside it. Because the jury was unwilling to find that defendant engaged in that conduct,” defendant continues, “the convictions must be reversed as unsupported by legally sufficient evidence.”
… [T]he mixed verdicts provide no basis to question the legal sufficiency of the convictions… . In fact, defendant’s argument is a classic “masked repugnancy” argument … , and it suffers from the same premise error that dooms all “masked repugnancy” arguments: it assumes that a jury’s verdict on one count can be weaponized to attack the legal or factual sufficiency of its verdict on another count. But that is not the law. To the contrary, the Court of Appeals has repeatedly held that “[f]actual inconsistency [in a verdict]— which can be attributed to mistake, confusion, compromise or mercy—does not provide a reviewing court with the power to overturn a verdict’ ” on legal sufficiency grounds … . * * *
… [D]efendant says that the People failed to prove the so-called “service element” of that crime, i.e., that the underlying protective order was “duly served” upon him or that he had “actual knowledge [thereof] because he . . . was present in court when [it] was issued” … . Because the service element is phrased disjunctively — i.e., it is satisfied if the defendant violates either a “duly served” protective order or a protective order of which he or she has “actual knowledge” because of his or her presence in court …) — the People need prove only one of the statutory alternatives beyond reasonable doubt … . People v Nichols, 2018 NY Slip Op 04502, Fourth Dept 6-15-18
CRIMINAL LAW (ACQUITTAL ON SOME COUNTS DID NOT RENDER PROOF OF OTHER COUNTS LEGALLY INSUFFICIENT, SERVICE ELEMENT OF CRIMINAL CONTEMPT PROVEN BY DEFENDANT’S RECEIPT OF THE ORDER IN COURT (FOURTH DEPT))/VERDICTS (CRIMINAL LAW, ACQUITTAL ON SOME COUNTS DID NOT RENDER PROOF OF OTHER COUNTS LEGALLY INSUFFICIENT, SERVICE ELEMENT OF CRIMINAL CONTEMPT PROVEN BY DEFENDANT’S RECEIPT OF THE ORDER IN COURT (FOURTH DEPT))/INCONSISTENT VERDICTS (CRIMINAL LAW, ACQUITTAL ON SOME COUNTS DID NOT RENDER PROOF OF OTHER COUNTS LEGALLY INSUFFICIENT, SERVICE ELEMENT OF CRIMINAL CONTEMPT PROVEN BY DEFENDANT’S RECEIPT OF THE ORDER IN COURT (FOURTH DEPT))/CONTEMPT, CRIMINAL (SERVICE ELEMENT OF CRIMINAL CONTEMPT PROVEN BY DEFENDANT’S RECEIPT OF THE ORDER IN COURT (FOURTH DEPT))