| People v Harris |
| 2010 NY Slip Op 03536 [72 AD3d 1492] |
| April 30, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v AntwoinHarris, Appellant. (Appeal No. 1.) |
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Appeal from a judgment of the Supreme Court, Erie County (Deborah A. Haendiges, J.),rendered September 4, 2008. The judgment convicted defendant, upon a nonjury verdict, ofcriminal contempt in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from three judgments convicting him following a singlenonjury trial of three counts of criminal contempt in the second degree (Penal Law §215.50 [3]) arising from his three violations of an order of protection. We reject the contention ofdefendant that the evidence at trial is legally insufficient to establish that he intended to violatethe order of protection. A copy of the no-contact order of protection, which was issued todefendant in court and signed by him, was admitted in evidence at trial, and the victim testifiedthat defendant made threats to her on each of the three occasions that he contacted her inviolation of the order of protection. Viewing that evidence in the light most favorable to thePeople (see People v Contes, 60 NY2d 620, 621 [1983]), we conclude that there is avalid line of reasoning and permissible inferences that could lead a rational person to concludethat defendant knew of the existence of the order of protection and intentionally violated it(see generally People v Bleakley, 69 NY2d 490, 495 [1987]; People v Wright, 63 AD3d 1700,1702 [2009]). Also contrary to defendant's contention, viewing the evidence in light of theelements of the crimes in this nonjury trial (see People v Danielson, 9 NY3d 342, 349 [2007]), we concludethat the verdict is not against the weight of the evidence (see generally Bleakley, 69NY2d at 495). Although defendant denied the victim's allegations during his trial testimony,Supreme Court was entitled to credit the testimony of the victim over that of defendant (see People v Lane, 7 NY3d 888,890 [2006]; People v Ange, 37AD3d 1143, 1144 [2007], lv denied 9 NY3d 839 [2007]). "[T]hose who see and hearthe witnesses can assess their credibility and reliability in a manner that is far superior to that ofreviewing judges who must rely on the printed record" (Lane, 7 NY3d at 890), and itcannot be said that the court failed to give the evidence the weight it should be accorded (seegenerally Bleakley, 69 NY2d at 495).
We reject the further contention of defendant that the misdemeanor informations upon [*2]which he was prosecuted were jurisdictionally defective becausethey did not contain nonhearsay allegations that, if true, established his knowledge of the orderof protection. A copy of the order of protection bearing defendant's signature was attached to theinformations in appeal Nos. 1 and 2, and it is well settled that "a defendant's name on thesignature line of an order of protection adequately supports an allegation that the defendant knewof the order's contents" (People vInserra, 4 NY3d 30, 32 [2004]). Contrary to defendant's contention, the fact that theattached copies of the order of protection were not certified does not render the informationsjurisdictionally defective (see generally People v Casey, 95 NY2d 354, 362-363 [2000]).Although a copy of the order of protection was not attached to the information in appeal No. 3,we nevertheless reject defendant's contention that the information was jurisdictionally defective(see id. at 359-360). "So long as the factual allegations of an information give an accusednotice sufficient to prepare a defense and are adequately detailed to prevent a defendant frombeing tried twice for the same offense," the information is sufficient to confer jurisdiction (id.at 360). The third information was signed by the victim, who alleged, inter alia, that theorder of protection was issued to defendant in court. Even assuming, arguendo, that the victim'sallegation is not based upon the victim's personal knowledge, we conclude that defendant'shearsay contention in appeal No. 3 does not implicate the court's jurisdiction and that defendantfailed to preserve that contention for our review by a timely pretrial motion (see id. at364; see also People v Konieczny,2 NY3d 569, 575-576 [2004]).
Finally, we agree with defendant that the sentence imposed in appeal No. 3 is illegal insofaras it imposes a period of probation in addition to a term of incarceration of two years(see Penal Law § 60.01 [2] [d]; § 65.00 [former (1)]). We therefore modifythe judgment in appeal No. 3 by vacating that part of the sentence imposing a period of probation(see People v Furnia, 223 AD2d 887, 887-888 [1996]). The sentence as modified is notunduly harsh or severe. Present—Centra, J.P., Fahey, Peradotto, Carni and Lindley, JJ.