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The People of the State of New York v. William Rivera

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


September 22, 2011

THE PEOPLE OF THE STATE OF NEW YORK,
RESPONDENT,
v.
WILLIAM RIVERA,
APPELLANT.

People v Rivera (William)

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2011

PRESENT: PESCE, P.J., WESTON and GOLIA, JJ

Consolidated appeal from judgments of the Criminal Court of the City of New York, Queens County (Deborah Stevens Modica, J.), rendered October 23, 2007. The judgments convicted defendant, upon a jury verdict, of criminal contempt in the second degree based on an incident occurring in May 2006 and, upon his plea of guilty, of criminal contempt in the second degree based on an incident occurring in April 2007.

ORDERED that the judgment convicting defendant, upon a jury verdict, of criminal contempt in the second degree based on the May 2006 incident is affirmed; and it is further,

ORDERED that so much of the appeal as is from the judgment convicting defendant, upon his plea of guilty, of criminal contempt in the second degree based on the April 2007 incident is dismissed as abandoned.

Following a jury trial, defendant was convicted of criminal contempt in the second degree (Penal Law § 215.50 [3]) based on an incident which occurred in May 2006. In October 2007, defendant pleaded guilty to criminal contempt in the second degree (Penal Law § 215.50 [3]) based on an incident which occurred in April 2007. On October 23, 2007, defendant was sentenced to two six-month concurrent terms of imprisonment. His separate appeals were thereafter consolidated by order of this court. As no issue is raised on appeal with respect to the judgment of conviction based on the 2007 incident, we dismiss as abandoned so much of the appeal as is from that judgment of conviction.

Defendant contends that his CPL 30.30 motion to dismiss the accusatory instrument charging him with criminal contempt in the second degree for the 2006 incident should have been granted because the misdemeanor complaint was never converted to an information, as the People did not file a certified order of protection, and, therefore, their statements of readiness were illusory. Contrary to defendant's contention, the misdemeanor complaint was converted to an information upon the filing of the complainant's supporting deposition at the arraignment (see People v Arellano, 22 Misc 3d 139[A], 2009 NY Slip Op 50355[U] [App Term, 9th & 10th Jud Dists 2009]). Section 100.40 (1) of the Criminal Procedure Law states that an information is sufficient on its face when it substantially conforms to the requirements of CPL 100.15, the factual allegations (together with any supporting depositions which may accompany it) provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part, and the non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof (see People v Dumas, 68 NY2d 729, 731 [1986]). These requirements are jurisdictional (see People v Kalin, 12 NY3d 225 [2009]; People v Casey, 95 NY2d 354 [2000]; People v Alejandro, 70 NY2d 133 [1987]; People v Dumas, 68 NY2d at 731) and may be asserted at any time, with the exception of a claim of hearsay, which is waived if it is not timely raised by a pretrial motion (see People v Casey, 95 NY2d 354). The essential elements of criminal contempt in the second degree are that a lawful order of the court was in effect and was clearly expressed, that defendant had knowledge of its provisions (although not necessarily through actual service of the order) and that defendant intentionally disobeyed it (see Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]; People v Carthew, 19 Misc 3d 138[A], 2008 NY Slip Op 50879[U] [App Term, 9th & 10th Jud Dists 2008]).

Herein, the detective stated that he had examined a copy of the order of protection and knows that defendant is aware of the order of protection in that defendant's signature appears next to the line which states that defendant had been advised in court of the issuance of the order of protection and that defendant had received the order. Since it can be inferred from defendant's signature that he had knowledge of the provisions of the order of protection (see People v Inserra, 4 NY3d 30, 33 [2004]), there is no merit to defendant's contention that the complaint had not been properly converted to an information because a certified copy of the order of protection had not been filed (see Matter of McCormick, 59 NY2d at 583; People v Carthew, 19 Misc 3d 138[A], 2008 NY Slip Op 50879[U]). Consequently, the People's statements of readiness were not illusory, the People did not exceed the 90-day statutory speedy trial limit, and defendant's CPL 30.30 motion was properly denied.

Defendant further contends that the Criminal Court erred in denying his motion to suppress the statements that he had made to the detective, in regard to the 2006 incident, in that the officer's contradictory testimony was incredible as a matter of law. This contention, however, is unpreserved for appellate review since it was not raised at the suppression hearing (see People v Jefferson, 71 AD3d 694 [2010]; People v Crawford, 61 AD3d 773 [2009]; People v Nadal, 57 AD3d 574 [2008]). In any event, defendant's contention lacks merit. We find that the detective's testimony was neither contradictory nor incredible as a matter of law. Moreover, as the complainant's testimony alone provided sufficient evidence to establish defendant's violation of the order of protection, any error in admitting the detective's testimony was harmless in view of the overwhelming evidence of defendant's guilt, and the fact that there was no significant probability that the error contributed to defendant's conviction (see People v Crimmins, 36 NY2d 230, 241-242 [1975]).

Accordingly, the judgment convicting defendant, upon a jury verdict, of criminal contempt in the second degree based on the 2006 incident is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: September 22, 2011

20110922

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