Opinion
2008-1039 N CR.
Decided April 1, 2011.
Appeal from judgments of the District Court of Nassau County, First District (Sharon M.J. Gianelli, J.), rendered May 14, 2008. The judgments convicted defendant, upon jury verdicts, of aggravated harassment in the second degree and stalking in the fourth degree.
ORDERED that the judgment convicting defendant of stalking in the fourth degree is reversed, on the law, and that information is dismissed; and it is further,
ORDERED that the judgment convicting defendant of aggravated harassment in the second degree is modified, as a matter of discretion in the interest of justice, by vacating the sentence of one year's incarceration and sentencing defendant to three years' probation; as so modified, the judgment of conviction is affirmed, and the matter is remitted to a different judge of the District Court to set the conditions of probation.
PRESENT: TANENBAUM, J.P., MOLIA and IANNACCI, JJ.
Defendant was charged in separate accusatory instruments with aggravated harassment in the second degree (Penal Law § 240.30) and stalking in the fourth degree (Penal Law § 120.45), and found guilty, upon jury verdicts, of said charges.
The information charging defendant with stalking in the fourth degree is jurisdictionally defective. The allegations of the factual portion of the information do not establish every element of the offense charged and defendant's commission thereof ( see CPL 100.40 [c]; People v Curiale , 20 Misc 3d 133 [A], 2008 NY Slip Op 51465[U] [App Term, 9th 10th Jud Dists 2008]). The information failed to allege that "the actor was previously clearly informed to cease [the stalking] conduct" (Penal Law § 120.45), which is an element of the offense charged. Consequently, the judgment convicting defendant of stalking in the fourth degree is reversed and that information dismissed.
With respect to the charge of aggravated harassment in the second degree, upon a review of the record, and after applying the appropriate standard of review, we conclude that the verdict of guilty was not against the weight of the evidence ( see People v Danielson , 9 NY3d 342 ; People v Romero , 7 NY3d 633 ). Moreover, we reject defendant's contention that she was denied her right to the effective assistance of counsel under either the state standard ( see People v Benevento, 91 NY2d 708) or the federal standard ( see Strickland v Washington, 466 US 668).
Insofar as defendant argues that her sentence was unduly harsh and excessive, we agree. [*2]While a sentencing court is allocated "wide latitude" in the exercise of its "unique judicial [sentencing] function" ( People v Day, 73 NY2d 208, 212), a court's sentencing discretion "is not without limits" ( People v Naranjo, 89 NY2d 1047, 1049). The record before us does not support a sentence of incarceration. Thus, we exercise our inherent authority to substitute our sentencing discretion for that of the sentencing court and modify the sentence, which, even though legal, is unduly harsh and severe ( see CPL 470.15 [b]; People v Delgado, 80 NY2d 780, 783). Accordingly, the sentence of a year's incarceration is vacated, defendant is sentenced to three years' probation and the matter is remitted to a different judge of the District Court to set the conditions of probation.
Tanenbaum, J.P., Molia and Iannacci, JJ., concur.