| People v Ellison |
| 2013 NY Slip Op 03170 [106 AD3d 419] |
| May 2, 2013 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Ian Ellison, Appellant. |
—[*1] Robert T. Johnson, District Attorney, Bronx (Orrie A. Levy of counsel), forrespondent.
Judgment, Supreme Court, Bronx County (Diane Kiesel, J.), rendered July 7, 2010,convicting defendant, after a nonjury trial, of attempted criminal contempt in the seconddegree, and sentencing him to a term of 45 days, unanimously affirmed. The matter isremitted to Supreme Court, Bronx County, for further proceedings pursuant to CPL460.50 (5). Order, same court and Justice, entered on or about June 20, 2011, whichdenied defendant's CPL 440.10 motion to vacate the judgment, unanimously affirmed.
The accusatory instrument was facially sufficient. In pertinent part, it alleged thatdefendant entered his ex-wife's place of employment, and that he thereby intentionallydisobeyed a valid order of protection that directed him to stay away from his ex-wife'splace of employment. The underlying complaint stated the precise location of theoffense, and also established that, only nine days earlier, defendant was present at theissuance of the order of protection and signed it. These allegations gave defendantsufficient notice to prepare a defense and had detail adequate to prevent him from beingtried twice for the same offense (see People v Kalin, 12 NY3d 225 [2009]; see also People v Inserra, 4NY3d 30, 33 [2004]).
Defendant's principal argument is that the underlying order of protection wasdefective because it did not identify or state the address of defendant's ex-wife's place ofemployment. Unlike a challenge to the sufficiency of an accusatory instrument, achallenge to the validity of an underlying order of protection does not assert anonwaivable jurisdictional defect (see People v Konieczny, 2 NY3d 569, 574-576 [2004];People v Casey, 95 NY2d 354, 360 [2000]). We decline to review thisunpreserved claim in the interest of justice. As an alternative holding, we find no basisfor reversal, since it is clear that defendant knew where his wife worked, both at the timethe order was issued and at the time he deliberately violated the order by going to thatlocation.
Defendant's legal sufficiency claim is unpreserved and we decline to review it in theinterest of justice. As an alternative holding, we reject it on the merits. We also find thatthe verdict was not against the weight of the evidence (see People v Danielson, 9NY3d 342, 348-349 [2007]). There is no basis for disturbing the court's credibilitydeterminations. The evidence warranted the conclusion that defendant wilfully violatedthe order of protection.[*2]
Defendant's challenge to the prosecutor'ssummation is also unpreserved, and we decline to review it in the interest of justice. Asan alternative holding, we also reject it on the merits. In context, the challenged remarkswere responsive to defense arguments, and the prosecutor did not urge the court toconvict defendant on a different theory from the one specified in the accusatoryinstrument.
The record supports the court's denial of defendant's motion to vacate the judgment.Defendant received effective assistance of counsel under the state and federal standards(see People v Benevento, 91 NY2d 708, 713-714 [1998]; see also Stricklandv Washington, 466 US 668 [1984]). Counsel's alleged deficiencies did not deprivedefendant of a fair trial or affect the outcome, particularly in the context of a nonjury trial(see generally People v Moreno, 70 NY2d 403, 405-406 [1987]).
We perceive no basis for reducing the sentence. Concur—Tom, J.P., Sweeny,Román and Feinman, JJ.