People v. Heiserman, 127 A.D.3d 1422 (N.Y. App. Div. 2015). · Go Syfert
People v. Heiserman, 127 A.D.3d 1422 (N.Y. App. Div. 2015). Cases Citing This Book View Copy Cite
25 citation events (25 in the last 25 years) across 2 distinct courts.
Treatment trajectory · 2016 → 2026 · click a year to view as-of
2016 2021 2026
Top citers, strongest first. 20 distinct citers. How cited ↗
discussed Cited as authority (rule) People v. Hoffman
N.Y. App. Div. · 2025 · confidence medium
However, evidence is only relevant if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case, and evidence of merely slight, remote or conjectural significance will ordinarily be insufficiently probative to outweigh the countervailing risks of prejudice" ( People v Heiserman , 127 AD3d 1422, 1423 [3d Dept 2015] [internal quotation marks, ellipsis, brackets and citations omitted]).
discussed Cited as authority (rule) People v. Hoffman
N.Y. App. Div. · 2025 · confidence medium
However, evidence is only relevant if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case, and evidence of merely slight, remote or conjectural significance will ordinarily be insufficiently probative to outweigh the countervailing risks of prejudice" ( People v Heiserman , 127 AD3d 1422, 1423 [3d Dept 2015] [internal quotation marks, ellipsis, brackets and citations omitted]).
discussed Cited as authority (rule) People v. Robbins
N.Y. App. Div. · 2025 · confidence medium
In our view, the investigator's testimony that acknowledged these points was not "introduced simply to demonstrate a predisposition to commit the subject offense" ( People v Hansel , 200 AD3d 1327 , 1331 [3d Dept 2021] [internal quotation marks and citation omitted], lv denied 38 NY3d 927 [2022]), but, rather, was a fair response to defense counsel's trial strategy and attacks on the credibility and motives of the prosecution's witnesses ( see People v Heiserman , 127 AD3d 1422, 1424 [3d Dept 2015]).
discussed Cited as authority (rule) People v. Clark
N.Y. App. Div. · 2024 · confidence medium
In any event, we conclude that defendant's contention is without merit and note that the court instructed the jury using the model instruction on one-witness identifications and cross-racial identifications ( see generally People v J.L. , 36 NY3d 112 , 122-123 [2020]; People v Heiserman , 127 AD3d 1422, 1424-1425 [3d Dept 2015]).
discussed Cited as authority (rule) People v. Hadlock
N.Y. App. Div. · 2023 · confidence medium
Next, given that defense counsel had questioned the credibility of certain law enforcement witnesses both on cross-examination and during closing argument, it was not improper for the prosecutor to ask the jury during summation to consider whether these witnesses had a motive to lie ( see People v Heiserman , 127 AD3d 1422, 1424 [3d Dept 2015]; People v Barber , 13 AD3d 898, 900 [3d Dept 2004], lv denied 4 NY3d 796 [2005]).
discussed Cited as authority (rule) People v. Graham
N.Y. App. Div. · 2023 · confidence medium
Relevant evidence may be excluded by the trial court, in 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 Heiserman , 127 AD3d 1422, 1423 [3d Dept 2015] [internal quotation marks and citation omitted]).
discussed Cited as authority (rule) People v. Abussalam
N.Y. App. Div. · 2021 · confidence medium
The prosecutor's [*8]references to domestic violence were not so flagrant or pervasive in the context of the entire summation as to deprive defendant of a fair trial ( see People v Johnson , 183 AD3d 77, 90 [2020], lv denied 35 NY3d 993 [2020]; People v Heiserman , 127 AD3d 1422, 1424 [2015]).
discussed Cited as authority (rule) People v. Barzee
N.Y. App. Div. · 2021 · confidence medium
With regard to defendant's challenge to County Court's instruction that the plexiglass object was a dangerous instrument, defendant failed to object to the instruction during the charging conference or after the instruction was given to the jury so as to preserve said claim for our review ( see CPL 470.05 [2]; People v Houze , 177 AD3d 1184 , 1188 [2019], lv denied 34 NY3d 1159 [2020]; People v Heiserman , 127 AD3d 1422, 1424-1425 [2015]).
discussed Cited as authority (rule) People v. Johnson
N.Y. App. Div. · 2020 · confidence medium
The prosecutor's comments about the victim's honesty were, for the most part, fair responses to defendant's repeated arguments in summation that she had a history of lying to get what she wanted and that she had lied about defendant's actions ( see People v Hartle , 159 AD3d 1149 , 1154 [2018], lv denied 31 NY3d 1082 [2018]; People v Heiserman , 127 AD3d 1422, 1424 [2015]).
discussed Cited as authority (rule) People v. Lang
N.Y. App. Div. · 2018 · confidence medium
If we were to consider defendant's claims, we would find that the prosecutor either did not vouch for any witness's credibility or that this was proper commentary offered in response to defendant's argument during summation ( see People v Jackson , 160 AD3d 1125 , 1129 [2018]; People v Heiserman , 127 AD3d 1422, 1424 [2015]).
discussed Cited as authority (rule) People v. Nichols
N.Y. App. Div. · 2018 · confidence medium
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 (see People v Heiserman, 127 AD3d 1422, 1423 [3d Dept 2015]) — the People need prove only one of the statutory alternatives beyond reasonable doubt (see People v Becoats, 17 NY3d 643, 654 [2011], cert denied 566 US 964 [2012]; People v Giordano, 87 NY2d 441, 451 [1995]) [FN4] .
discussed Cited as authority (rule) People v. Harris
N.Y. App. Div. · 2018 · confidence medium
More to the point, these isolated comments "'did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process or a fair trial'" ( id. , quoting People v Heiserman , 127 AD3d 1422, 1424 [2015]; see People v Ressy , 141 AD3d 839, 842-842 [2016], lvs denied 28 NY3d 1030 [2016]; People v Wlasiuk , 136 AD3d 1101, 1103-1104 [2016], lv denied 27 NY3d 1009 [2016]).
discussed Cited as authority (rule) People v. Deshane
N.Y. App. Div. · 2018 · confidence medium
During his summation, defense counsel attempted to cast doubt [*2]on the credibility of the witnesses, specifically stating with respect to one witness, "Is he credible?" As to another witness, defense counsel brought to the jury's attention the witness' prior convictions and further stated, "Why did he lie to you on the stand?" The prosecutor's comments during his summation, in our view, were a proper response to defense counsel's attacks on the credibility of the witnesses ( see People v Heiserman , 127 AD3d 1422, 1424 [2015]; People v Pine , 82 AD3d 1498, 1502 [2011], lv denied 17 NY3d 820 …
discussed Cited as authority (rule) People v. Busch-Scardino
N.Y. App. Div. · 2018 · confidence medium
Here, defendant stated during her plea allocution that she did not intend to violate the underlying order [*2]of protection, thus negating an element of criminal contempt in the first degree ( see Penal Law § 215.51 [c]; People v Heiserman , 127 AD3d 1422, 1423 [2015]).
discussed Cited as authority (rule) People v. Favors
N.Y. App. Div. · 2017 · confidence medium
Finally, given that defendant failed to request a curative instruction at any point with regard to the officer’s testimony and did not object to the final charge as given, defendant’s claims in that regard are unpreserved for our review (see CPL 470.05 [2]; People v Jackson, 29 NY3d 18, 22 [2017]; People v Heiserman, 127 AD3d 1422, 1424-1425 [2015]).
discussed Cited as authority (rule) People v. Kerley
N.Y. App. Div. · 2017 · confidence medium
Almost all of the prosecutor’s statements constituted fair comment on the evidence or a reasonable response to the defense summation, and any remarks that may have been improper “did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process or a fair trial” (People v Heiserman, 127 AD3d 1422, 1424 [2015] [internal quotation marks and citation omitted]).
discussed Cited as authority (rule) People v. Every (2×)
N.Y. App. Div. · 2017 · confidence medium
If defendant’s challenges had been preserved, we would have found that the few remaining challenged remarks, even if better left unsaid, “did not rise to the flagrant and pervasive level of misconduct which would deprive defendant of due process or a fair trial” (People v Heiserman, 127 AD3d 1422, 1424 [2015] [internal quotation marks and citation omitted]).
discussed Cited as authority (rule) People v. Acevedo (2×)
N.Y. App. Div. · 2016 · confidence medium
As for the remaining comments that defendant challenges, even if we were to conclude that they -8- 106644 were improper, we would find that they did not constitute such "a flagrant and pervasive pattern of prosecutorial misconduct so as to deprive [him] of a fair trial" (People v Fiorino, 130 AD3d 1376, 1380 [2015] [internal quotation marks and citations omitted], lv denied 26 NY3d 1087 [2015]; see People v Mitchell, 129 AD3d at 1321 ; People v Heiserman, 127 AD3d 1422, 1424 [2015]; compare People v Cassanova, 119 AD3d 976 , 979 [2014]; People v Forbes, 111 AD3d 1154, 1160 [2013]), especially …
discussed Cited as authority (rule) People v. Smith
N.Y. App. Div. · 2016 · confidence medium
Defendant raised no objection to that jury charge before County Court and, as such, the issue is not preserved for appellate review (see CPL 470.05 [2]; People v Melendez, 16 NY3d 869, 870 [2011]; People v Heiserman, 127 AD3d 1422, 1424-1425 [2015]).
discussed Cited "see" People v. Young
N.Y. App. Div. · 2018 · signal: see · confidence high
The challenged testimony established, if anything, that the investigator made a mistake, and we perceive no basis for a finding that such testimony could have "unfairly prejudice[d] [defendant] or misl[ed] the jury" ( People v Scarola , 71 NY2d 769, 777 [1988]; see People v Heiserman , 127 AD3d 1422, 1423-1424 [2015]).
Retrieving the full opinion text from the archive…
The People of the State of New York, Respondent,
v.
Frederick D. Heiserman, Appellant
106041.
Appellate Division of the Supreme Court of the State of New York.
Apr 16, 2015.
127 A.D.3d 1422
McCarthy, Peters, Rose, Clark.
Cited by 24 opinions  |  Published
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-aw ay 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 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[*1423] 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 fucking 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, 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[*1424] 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 facts not in evidence. While defense counsel’s cross-examination 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[*1425] 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 CJI2d[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.

Ordered that the judgment is affirmed.