People v. Rivera (Juan)

69 Misc. 3d 130(A), 2020 NY Slip Op 51158(U)

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 5, 2020
• Docket: 570597/14
• Status: Unpublished

Opinion

People v Rivera (2020 NY Slip Op 51158(U)) [*1]

People v Rivera (Juan)

2020 NY Slip Op 51158(U) [69 Misc 3d 130(A)]

Decided on October 5, 2020

Appellate Term, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 5, 2020

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Edmead, P.J., Cooper, Higgitt, JJ.
570597/14

The People of the State of New York, Respondent,

against

Juan Rivera, Defendant-Appellant.

Defendant appeals from the judgment of the Criminal Court of the City of New York, New York County (Steven M. Statsinger, J.), rendered June 5, 2014, convicting him, upon a plea of guilty, of harassment in the second degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Steven M. Statsinger, J.), rendered June 5, 2014, affirmed.

The information charging criminal contempt in the second degree (see Penal Law § 215.50[3]) was jurisdictionally valid because it contained nonconclusory factual allegations that, if assumed to be true, addressed each element of the crime charged, thereby affording reasonable cause to believe that defendant committed that offense (see CPL 100.15[3]; 100.40[1]; People v Middleton, 35 NY3d 952, 954 [2020]). In pertinent part, the instrument alleged that defendant "use[d] his hands and feet to bang and kick [Dorali Deaza's] apartment door," and that he thereby intentionally disobeyed a valid order of protection that directed him to refrain from, inter alia, intimidating, threatening, menacing or committing any other criminal offense against Ms. Deaza. The information stated the precise date, time and location of the offense, and also established that, only three days earlier, defendant was present at the issuance of the order of protection and signed it. These allegations gave defendant sufficient notice to prepare a defense and had detail adequate to prevent him from being tried twice for the same offense (see People v Kaplan, 125 AD3d 465 [2015], lv denied 25 NY3d 1203 [2015]; People v Ellison, 106 AD3d 419 [2013], lv denied 21 NY3d 1004 [2013]).

Contrary to defendant's present contention, a fair implication of the factual allegations provided reasonable cause to believe and made a prima facie showing for pleading purposes that defendant wilfully violated the terms of the order of protection by banging and kicking Deaza's apartment door, conduct that could reasonably be inferred as intimidating, threatening and menacing the victim (see People v Creech, 165 AD3d 1491 [2018]; People v Cortese, 79 AD3d 1281, 1283 [2010], lv denied 16 NY3d 857 [2011]; Matter of Julie A.C. v Michael F.C., 15 AD3d 1007 [2005]; see also People v Udeke, 34 NY3d 1118 [2019]). Defendant's contention that his conduct was not in violation of the order of protection, but merely an attempt to gain [*2]access to the apartment, "was a matter to be raised as a defense to the contempt charge, not by insistence that this information was jurisdictionally defective" (People v Konieczny, 2 NY3d 569, 577 [2004] [internal quotation marks and alterations omitted]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 5, 2020