| People v Mingo |
| 2009 NY Slip Op 07866 [66 AD3d 1043] |
| October 27, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v George Mingo, Appellant. |
—[*1] Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, JeanetteLifschitz, and Rona I. Kugler of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Erlbaum,J.), rendered October 1, 2007, convicting him of assault in the second degree (four counts),criminal mischief in the second degree, criminal mischief in the fourth degree, aggravatedcriminal contempt, criminal contempt in the first degree, and criminal contempt in the seconddegree, after a nonjury trial, and imposing sentence.
Ordered that the judgment is modified, on the law, by vacating the conviction of criminalcontempt in the second degree and the sentence imposed thereon, and dismissing that count ofthe indictment; as so modified, the judgment is affirmed.
The defendant's contention that he was denied the effective assistance of counsel due todefense counsel's alleged failure to communicate with him during a two-week recess in the trial,based on counsel's mistaken belief that such contact was prohibited, is premised for the most parton matter dehors the record and cannot, to that extent, be reviewed on direct appeal (seePeople v Park, 60 AD3d 972 [2009]; People v Holland, 44 AD3d 874 [2007]). Tothe extent that the defendant's contention can be reviewed, the record demonstrates that thedefendant was not denied meaningful representation (see People v Taylor, 1 NY3d 174,176-177 [2003]; People v Benevento, 91 NY2d 708, 712-714 [1998]; People vBaldi, 54 NY2d 137, 147 [1981]; People v Canty, 32 AD3d 1043, 1044 [2006]).
Contrary to the People's contention, preservation of the defendant's claim that his convictionof criminal contempt in the second degree should have been dismissed as a lesser-includedoffense of criminal contempt in the first degree is unnecessary to obtain appropriate relief(see People v Manuel, 237 AD2d 307 [1997]; People v Hammond, 220 AD2d684, 685 [1995]).
The defendant was convicted of criminal contempt in the first degree under Penal Law§ 215.51 (b) (v), which provides, in relevant part, that a person is guilty of that crimewhen "in violation of a duly served order of protection . . . he or she. . . with intent to harass, annoy, threaten or alarm a person for whose protectionsuch order was issued, strikes, shoves, kicks or otherwise subjects such other person [*2]to physical contact or attempts or threatens to do the same."
The defendant also was convicted of criminal contempt in the second degree under PenalLaw § 215.50 (3), which prohibits "[i]ntentional disobedience or resistance to the lawfulprocess or other mandate of a court except in cases involving or growing out of labor disputes asdefined by subdivision two of section seven hundred fifty-three-a of the judiciary law."
Under CPL 300.40 (3) (b), "[a] verdict of guilty upon the greatest count submitted is deemeda dismissal of every lesser count submitted." The People contend that criminal contempt in thesecond degree is not a lesser-included offense of criminal contempt in the first degree because itis theoretically possible to commit criminal contempt in the first degree without, by the sameconduct, committing criminal contempt in the second degree. The People rely on a provision ofthe definition of criminal contempt in the second degree that is not found in criminal contempt inthe first degree—specifically, that the criminal conduct not "involv[e] or grow[ ] out oflabor disputes as defined by . . . the judiciary law" (Penal Law § 215.50 [3]).However, the Court of Appeals has held that the " 'labor disputes' clause operates as a provisothat the accused may raise in defense of the charge rather than an exception that must be pleadedby the People in the accusatory instrument" (People v Santana, 7 NY3d 234, 237[2006]). Thus, the labor dispute defense is not a material element of the charge. Therefore,contrary to the People's contention, criminal contempt in the second degree is a lesser-includedoffense of criminal contempt in the first degree in this case (see People v Lubrano, 43AD3d 829 [2007]; People v Campbell, 269 AD2d 460 [2000]), and the defendant'sconviction and the sentence imposed thereon must be vacated, and that count of the indictmentdismissed (see CPL 300.40 [3] [b]). Rivera, J.P., Eng, Chambers and Hall, JJ., concur.