Opinion
2003-1354 KCR.
Decided March 22, 2006.
Appeal from a judgment of the Criminal Court of the City of New York, Kings County (Richard N. Allman, J.), rendered September 8, 2003. The judgment convicted defendant, upon his plea of guilty, of attempted criminal contempt in the second degree.
Judgment of conviction affirmed.
PRESENT: GOLIA, J.P., RIOS and BELEN, JJ
Defendant was charged in a superseding information with, inter alia, attempted criminal contempt in the second degree (Penal Law §§ 110.00, 215.50). We do not take the position, as urged by the People, that defendant's present claim of insufficiency of the accusatory instrument is unpreserved, waived or forfeited. While the Court of Appeals has held that violation of the non-hearsay requirements of CPL 100.15 and 100.40 must be preserved by a motion brought in the court of first instance ( People v. Casey, 95 NY2d 354), and can also be waived by a guilty plea ( People v. Pittman, 100 NY2d 114), the requirement that the information allege sufficient facts to support every element of the crime charged remains jurisdictional ( see People v. Hansen, 95 NY2d 227, 230 ["The limited issues surviving a guilty plea in the main relate . . . to jurisdictional matters (such as an insufficient accusatory instrument)"]; People v. Alejandro, 70 NY2d 133; People v. Hall, 48 NY2d 927, 927 ["It is a fundamental and nonwaivable jurisdictional prerequisite that an information state the crime with which the defendant is charged and the particular facts constituting that crime"]; People v. Case, 42 NY2d 98, 100 ["An objection to the substantive sufficiency of the information, such as the one that it does not state a crime, as distinguished from an objection to the form of the instrument, is not waived by a plea of guilty"]; Preiser, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 100.40, at 388-389).
The accusatory instrument charging defendant with attempted criminal contempt in the second degree is jurisdictionally sufficient. Penal Law § 215.50 (3) proscribes "[i]ntentional disobedience or resistance to the . . . mandate of a court except in cases involving or growing out of labor disputes . . ." The factual allegations of the instrument together with its supporting deposition, establish, if true, that a specifically described order of protection was in effect at the time of defendant's violation, that it ordered him to stay away from Jennifer Ward and to refrain from harassing or intimidating her, that she observed him following her in his car and that she observed him drive past her. The information also alleged that defendant had knowledge of the order of protection which bore what purported to be his signature and that he had been advised in court of its issuance. In People v. Inserra ( 4 NY3d 30), it was held that a defendant's knowledge of an order of protection was sufficiently established, for pleading purposes, by an officer's deposition alleging that the defendant's signature was on the order of protection. Furthermore, the instant superseding information expressly asserted that defendant engaged in intentional disobedience or resistance to the lawful process or other mandate of the court ( cf. People v. Hall, 48 NY2d 927, supra), and the required intent for the crime may be inferred from both the accusatory and factual parts of the information ( People v. Horner, 5 Misc 3d 134 [A], 2004 NY Slip Op 51457[U] [App Term, 9th 10th Jud Dists], lv denied 4 NY3d 764). In addition, the subject accusatory instrument contained factual allegations underlying the charges stemming from earlier violations of the order of protection supporting, or tending to support, the requisite element of intent for the instant violation.
Defendant's contention that the accusatory instrument was jurisdictionally defective for failure to allege that the case did not involve or grow out of a labor dispute has already been held by this court to be without merit ( People v. Sylla, 7 Misc 3d 8 [App Term, 2d 11th Jud Dists 2005], lv denied 4 NY3d 857; People v. Campbell, 6 Misc 3d 930 [A], 2005 NY Slip Op 50064[U] [App Term, 2d 11th Jud Dists], lv denied 4 NY3d 852).
Golia, J.P., Rios and Belen, JJ., concur.