Opinion
2017-1687 Q CR
12-17-2021
The People of the State of New York, Respondent, v. Michael Karantinidis, Appellant.
Murray, Mancilla & Fantone, LLP (Joseph W. Murray of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott and Ayelet Sela of counsel), for respondent.
Unpublished Opinion
Murray, Mancilla & Fantone, LLP (Joseph W. Murray of counsel), for appellant.
Queens County District Attorney (John M. Castellano, Johnnette Traill, Nancy Fitzpatrick Talcott and Ayelet Sela of counsel), for respondent.
PRESENT: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ.
Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Ernest F. Hart, J.), rendered May 11, 2017. The judgment convicted defendant, after a nonjury trial, of attempted aggravated harassment in the second degree and attempted criminal contempt in the second degree, and imposed sentence.
ORDERED that the judgment of conviction is modified, on the law, by vacating the conviction of attempted aggravated harassment in the second degree and dismissing that count of the accusatory instrument; as so modified, the judgment of conviction is affirmed.
On December 5, 2014, defendant was charged in a misdemeanor information with two counts of aggravated harassment in the second degree (Penal Law § 240.30 [1] [a]; [2]) and one count of harassment in the second degree (Penal Law § 240.26 [1]). According to the information, on November 18, 2014, defendant made a telephone call to his wife, the complainant, during which he said "he was going to gut her and make her eat her guts," causing her annoyance and alarm.
During the arraignment, the Criminal Court issued a temporary order of protection (TOP) by which defendant was required to stay away from the complainant's home and place of work for the next six months. Approximately two months later, on February 12, 2015, defendant was charged in a second misdemeanor information with criminal contempt in the second degree (Penal Law § 215.50 [3]). It was alleged in this second information that, on January 11, 2015, the complainant "observed [] defendant drive around her place of residence 3 times and then pull into her driveway," in violation of the TOP.
Prior to the start of a nonjury trial, the Criminal Court granted two motions by the prosecution regarding the charges, without objection by defendant. On the first information, the two counts of aggravated harassment in the second degree were reduced to attempted aggravated harassment in the second degree (Penal Law §§ 110.00, 240.30 [1] [a]; [2]), and the count of harassment in the second degree was dismissed. On the second information, the count of criminal contempt in the second degree was reduced to attempted criminal contempt in the second degree (Penal Law §§ 110.00, 215.50 [3]). The People subsequently filed a prosecutor's information (see CPL 100.50) charging defendant with these three reduced counts. Following the presentation of trial evidence, the Criminal Court acquitted defendant of attempted aggravated harassment in the second degree pursuant to subsection (1) (a), but convicted him of attempted aggravated harassment in the second degree pursuant to subsection (2) and of attempted criminal contempt in the second degree, and later sentenced him.
Pursuant to Penal Law § 240.30 (2), a person commits aggravated harassment in the second degree when, "[w]ith intent to harass another person, he or she makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication." We have repeatedly exhorted that the "mere recitation in [an] accusatory instrument that the telephone call[s] allegedly made by [a] defendant to [a] complainant had no legitimate purpose of communication, without providing a basis for such allegation, does not establish this element of aggravated harassment in the second degree" (People v Lewis, 52 Misc.3d 134 [A], 2016 NY Slip Op 51025[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [internal quotation marks omitted]; see People v Hargrove, 47 Misc.3d 136 [A], 2015 NY Slip Op 50499[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; People v Singh, 1 Misc.3d 73, 74 [App Term, 2d Dept, 2d & 11th Jud Dists 2003]). The absence of evidentiary support for the "no legitimate purpose of communication" element would similarly render a reduced count of attempted aggravated harassment in the second degree facially insufficient.
In this case, defendant asserts correctly that the reduced charge of attempted aggravated harassment in the second degree in the first misdemeanor information is insufficiently alleged. The "no legitimate purpose of communication" element is not alleged anywhere within the four corners of the first information. The allegation that defendant made a threat during a telephone conversation with the complainant does not, without more, sufficiently permit the inference that there was no legitimate purpose in initiating the communication in the first place (see People v Hassan, 63 Misc.3d 158 [A], 2019 NY Slip Op 50838[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019] ["as the original information failed to provide a basis for the allegation that defendant had engaged in conduct which tended to effectuate a telephone call that had no legitimate purpose of communication, it failed to allege every element of the offense"]; see CPL 100.40 [1] [c]). Consequently, "the count of attempted aggravated harassment in the second degree [pursuant to Penal Law §§ 110.00, 240.30 (2)], charged in the prosecutor's information, was jurisdictionally defective," because" 'the factual allegations of the original information underlying it and any supporting depositions are not legally sufficient to support the charge in the prosecutor's information'" (Hassan, 63 Misc.3d 158[A], 2019 NY Slip Op 50838[U], *1; quoting CPL 170.35 [3] [b]), requiring vacatur of defendant's conviction thereof and dismissal of that count.
Defendant also submits that the count of criminal contempt in the second degree, as charged in the second information underlying the prosecutor's information, is facially insufficient and gives two independent reasons: (1) the underlying accusatory instrument "fails to include pertinent information found in the [TOP]" and (2) the court that issued the TOP during defendant's December 5, 2014 arraignment neglected to properly instruct him about the limits it placed upon him. Even if, for the sake of argument, these reasons were factually accurate, they are immaterial to the facial sufficiency issue because," 'in evaluating the sufficiency of an accusatory instrument,' a court does 'not look beyond its four corners (including supporting declarations appended thereto)'" (People v Slade, 37 N.Y.3d 127, 136-137 [2021], quoting People v Hardy, 35 N.Y.3d 466, 475 [2020]). Upon our review of the underlying accusatory instrument, we are satisfied that the allegation that defendant violated the TOP, by driving around the complainant's home and pulling into her driveway, sufficiently supports the count of attempted criminal contempt in the second degree.
Defendant argues further that the trial evidence was legally insufficient to support his conviction of attempted criminal contempt in the second degree. However, his specific points are unpreserved. In any event, this contention lacks merit. Evidence adduced at trial is legally sufficient to support a guilty verdict if it is "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL 70.10). In other words, trial evidence is legally sufficient if, when it and all reasonable inferences thereof are viewed in the light most favorable to the People (see People v Gordon, 23 N.Y.3d 643, 649 [2014]; People v Contes, 60 N.Y.2d 620, 621 [1983])," 'any valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the fact finder'" (People v Dubarry, 25 N.Y.3d 161, 178 [2015], quoting People v Hines, 97 N.Y.2d 56, 62 [2001]).
In this case, the complainant, defendant's and the complainant's adult son, and the son's girlfriend testified consistently and credibly for the prosecution that, while they were eating lunch together on January 11, 2015, they observed defendant driving around the marital home before parking his vehicle near the gated entrance to the home's driveway, despite his awareness that the TOP he signed barely one month prior explicitly stated that he must stay away from the complainant's home. This evidence, viewed in the light most favorable to the People, was indeed legally sufficient to sustain his conviction of attempted criminal contempt in the second degree. Defendant's conviction also was not against the weight of the evidence.
Each of defendant's remaining appellate contentions are unpreserved, improperly noticed or unnoticed, unavailing on the merits or rendered academic by the foregoing.
Specifically, defendant has provided no proof of notice to the New York State Attorney General of his intent to make an as-applied challenge to the constitutionality of Penal Law § 240.30 (2) in this appeal (see CPLR 1012 [b] [3]; Executive Law § 71 [3]; Guidarelli v Brassard, 88 A.D.3d 1147, 1149 [2011] ["to the extent that petitioners challenge the constitutionality of Election Law § 7-104 as applied to them, that challenge is not properly before us inasmuch as there is no indication in the record that the Attorney General was given the requisite notice"]). "[A]bsent proof that the Attorney General has been duly notified of such" as-applied constitutional challenge, "these issues are not properly before us" (People v Martinez, 59 Misc.3d 131[A], 2018 NY Slip Op 50465[U], *3 [App Term, 2d Dept, 9th & 10th Jud Dists 2018] [declining to consider defendant's claim that the portion of a protective order which mirrored the language contained in CPL 530.13 (1) (a), was "unconstitutional in that he was not thereby informed as to how far from the victim's place of business he was required to remain if he was to avoid violating the order"]).
Accordingly, the judgment of conviction is modified by vacating the conviction of attempted aggravated harassment in the second degree and dismissing that count of the accusatory instrument.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.