Opinion
5844 Ind. 3855/14
03-01-2018
The PEOPLE of the State of New York, Respondent, v. Daniel BROOKS, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Lindsey Richards of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Lindsey Richards of counsel), for respondent.
Acosta, P.J., Friedman, Richter, Kapnick, JJ.
Judgment, Supreme Court, New York County (Mark Dwyer, J.), rendered July 28, 2015, convicting defendant, after a jury trial, of criminal contempt in the first degree and aggravated family offense, and sentencing him, as a second felony offender, to an aggregate term of 1½ to 3 years, unanimously affirmed.
We reject defendant's challenges to the sufficiency of the evidence supporting his contempt conviction. The record supports reasonable inferences that at least a significant portion of the hundreds of calls, frequently containing threatening, hostile and foul language, that defendant made to the victim in violation of an order of protection, was intended to harass, annoy, threaten, or alarm her, and that these calls were made with no purpose of legitimate communication (see Penal Law 215.51[b][iv] ; People v. Shack, 86 N.Y.2d 529, 538, 634 N.Y.S.2d 660, 658 N.E.2d 706 [1995] ; People v. Padin, 121 A.D.3d 628, 994 N.Y.S.2d 309 [1st Dept. 2014],lv denied 25 N.Y.3d 1169, 15 N.Y.S.3d 301, 36 N.E.3d 104 [2015] )
The count charging aggravated family offense, in which certain misdemeanors are raised to felonies based on prior convictions, was not jurisdictionally defective. The count alleged all the elements of that crime, including that defendant committed a misdemeanor defined in Penal Law § 240.75(2), because it "unmistakably identified the ‘specified offense’ [second-degree contempt] defendant was alleged to have committed by stating its definition, albeit without identifying it by section number" ( People v. Parrilla, 145 A.D.3d 629, 629–630, 42 N.Y.S.3d 825 [1st Dept. 2016], lv denied 29 N.Y.3d 951, 54 N.Y.S.3d 382, 76 N.E.3d 1085 [2017] ). This count set forth the definition of second-degree criminal contempt under Penal Law § 215.50(3), which is a qualifying misdemeanor under Penal Law § 240.75. Although the only other count in the indictment charged first-degree contempt, a felony, there is no requirement that the "specified offense" relied upon to charge aggravated family offense be independently charged in a separate count.