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The People of the State of New York v. Sergei Kramtsov

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT June 2010 Term


December 30, 2010

THE PEOPLE OF THE STATE OF NEW YORK
RESPONDENT,
v.
SERGEI KRAMTSOV,
DEFENDANT-APPELLANT.

People v Kramtsov (Sergei)

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Shulman, Hunter, Jr., JJ

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Rita Mella, J.), rendered August 5, 2008, convicting him, upon a plea of guilty, of menacing in the third degree, and imposing sentence. Per Curiam. Judgment of conviction (Rita Mella, J.), rendered August 5, 2008, affirmed.

The misdemeanor information sufficiently set forth the factual basis of the underlying menacing charge by alleging, inter alia, that, shortly after midnight on a specified date, defendant "approached" a Manhattan restaurant while the complainant was standing directly behind the restaurant's front window; that defendant "took out a knife from [his] pocket, looked at [the complainant], and ... tap[ped] said knife on the window"; and that police eventually recovered a gravity knife from defendant's right front pants pocket. These allegations, "given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), were sufficient for pleading purposes to establish reasonable cause and a prima facie case that defendant committed menacing in the third degree by displaying the knife so as to "intentionally place[ ] or attempt[ ] to place" the complainant in fear of imminent physical injury (see Penal Law §120.15; People v Brown, 307 AD2d 973 [2003], lv denied 100 NY2d 641 [2003]; People v Roberts, 19 Misc 3d 140[A], 2007 NY Slip Op 50348[U] [2007], lv denied 8 NY3d 990 [2007]; cf. People v Nwogu, 22 Misc 3d 201 [2008]. That defendant and the complainant are alleged to have stood on opposite sides of a glass window during the incident is not fatal to the prosecution's case, at least upon a threshold, pleading-stage inquiry, where the sworn allegations of the information were otherwise sufficient to support a finding that defendant acted with the requisite intent and that the complainant had a well-founded fear of physical injury.

Reargument granted and, upon reargument, the decision and order of this court entered on June 21, 2010, recalled and vacated and a new decision and order substituted therefor.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur

DECEMBER 30, 2010

McKeon, P.J., Shulman, Hunter, Jr., JJ.

The People of the State of New York Respondent, v. Sergei Kramtsov, Defendant-Appellant.

No. 570537/08

NY County Clerk's

Calendar No. 08/464-468

Defendant appeals from a judgment of the Criminal Court of the City of New York, New York County (Rita Mella, J.), rendered August 5, 2008, convicting him, upon a plea of guilty, of menacing in the third degree, and imposing sentence.

Per Curiam.

Judgment of conviction (Rita Mella, J.), rendered August 5, 2008, affirmed. The misdemeanor information sufficiently set forth the factual basis of the underlying menacing charge by alleging, inter alia, that, shortly after midnight on a specified date, defendant "approached" a Manhattan restaurant while the complainant was standing directly behind the restaurant's front window; that defendant "took out a knife from [his] pocket, looked at [the complainant], and ... tap[ped] said knife on the window"; and that police eventually recovered a gravity knife from defendant's right front pants pocket. These allegations, "given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]), were sufficient for pleading purposes to establish reasonable cause and a prima facie case that defendant committed menacing in the third degree by displaying the knife so as to "intentionally place[ ] or attempt[ ] to place" the complainant in fear of imminent physical injury (see Penal Law §120.15; People v Brown, 307 AD2d 973 [2003], lv denied 100 NY2d 641 [2003]; People v Roberts, 19 Misc 3d 140[A], 2007 NY Slip Op 50348[U] [2007], lv denied 8 NY3d 990 [2007]; cf. People v Nwogu, 22 Misc 3d 201 [2008]. That defendant and the complainant are alleged to have stood on opposite sides of a glass window during the incident is not fatal to the prosecution's case, at least upon a threshold, pleading-stage inquiry, where the sworn allegations of the information were otherwise sufficient to support a finding that defendant acted with the requisite intent and that the complainant had a well-founded fear of physical injury. Reargument granted and, upon reargument, the decision and order of this court entered on June 21, 2010, recalled and vacated and a new decision and order substituted therefor.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: December 30, 2010

Decision Date: December 30, 2010

20101230

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