People v. Soler

269 A.D.2d 844, 703 N.Y.S.2d 776, 2000 N.Y. App. Div. LEXIS 1787

Opinion

—Judgment unanimously modified on the law and as modified affirmed and matter remitted to Ontario County Court for sentencing in accordance with the following Memorandum: The District Attorney candidly concedes that the evidence adduced in support of the jury verdict is not legally sufficient to establish defendant’s guilt of criminal contempt in the first degree (Penal Law § 215.51 [c]) under the first two counts of the indictment. Penal Law § 215.51 (c) is not applicable to the violation of an order of protection issued pursuant to CPL 530.13. We reject defendant’s contention that those counts of the indictment are jurisdictionally defective (see, People v Ray, 71 NY2d 849, 850; People v Cohen, 52 NY2d 584, 586-587). We conclude that the evidence is legally sufficient to establish defendant’s guilt of the lesser included offense of criminal contempt in the second degree (Penal Law § 215.50 [3]). Thus, we modify the judgment pursuant to CPL 470.15 (2) (a) by reducing the conviction under counts one and two of the indictment to criminal contempt in the second degree (Penal Law § 215.50 [3]) and vacating the sentences imposed thereon, and we remit the matter to Ontario County Court for sentencing. (Appeal from Judgment of Ontario County Court, Harvey, J. — Criminal Contempt, 1st Degree.) Present — Wisner, J. P., Hurlbutt, Scudder and Law-ton, JJ.