Appeal from a judgment of the Criminal Court of the City of New York, Kings County (William E. Garnett, J.), rendered November 20, 2009.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2012
PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ
The judgment, insofar as appealed from as limited by the brief, convicted defendant, after a non-jury trial, of menacing in the third degree.
ORDERED that the judgment of conviction, insofar as appealed from, is affirmed.
Following a non-jury trial, defendant was convicted of menacing in the third degree (Penal Law § 120.15) and harassment in the second degree (Penal Law § 240.26 [I]). On appeal, defendant contends that the information charging him with menacing in the third degree is jurisdictionally defective in that it failed to allege sufficient facts establishing that he had caused the complainant to fear imminent physical injury. As defendant's contention concerning the facial sufficiency of the accusatory instrument is jurisdictional (see People v Dreyden, 15 NY3d 100, 103 ; People v Alejandro, 70 NY2d 144 ), it may be raised on appeal even though defendant never raised the argument in the Criminal Court (see Dreyden, 15 NY3d at 103; People v Kalin, 12 NY3d 225, 229 ).
In the factual portion of the information, it is alleged that defendant pointed a gun at Steve Bailey and threatened him by stating, among other things, that "You [Bailey] are not going to be coming into this building too much longer." It is alleged further that this caused Bailey to "fear imminent physical injury." In our view, the information sufficiently alleged facts of an evidentiary character supporting or tending to support the count of menacing in the third degree (Penal Law § 120.15), providing reasonable cause to believe that defendant had committed the offense charged (see CPL 100.40  [b]), and establishing, if true, every element of the offense charged (see 100.40  [c]), including that defendant's actions had placed Bailey in fear of imminent physical injury.
Accordingly, the judgment of conviction, insofar as appealed from, is affirmed.
Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: September ...