Opinion
No. 11–192.
2012-03-8
The PEOPLE of the State of New York, Respondent,— v. Yan KOMIZOROV, Defendant–Appellant.
Defendant appeals from a judgment of the Criminal Court of the City of New York, Bronx County (Judith S. Lieb, J.), rendered April 23, 2010, after a nonjury trial, convicting him of attempted aggravated harassment in the second degree and harassment, and imposing sentence.
Present SCHOENFELD, J.P., SHULMAN, TORRES, JJ.
PER CURIAM.
Judgment of conviction (Judith S. Lieb, J.), rendered April 23, 2010, affirmed.
The prosecutor's information insofar as it charged defendant with attempted aggravated harassment (Penal Law §§ 110.00/240.30[1][a] ) was facially sufficient, since it specifically referred to the statutory provisions defining the offense charged and set forth “a plain and concise statement of the conduct constituting [that] offense” (CPL 100.35), viz., that defendant “did intentionally attempt to communicate with [the complainant], by telephone in a manner likely to cause annoyance or alarm.” It was not incumbent upon the People to include in the prosecutor's information an allegation concerning the defendant's “harassing” intent, at least in these circumstances where the original accusatory instrument properly pleaded the intent element of the aggravated harassment statute ( cf. People v. Tarka, 75 N.Y.2d 996 [1990] ). “[W]here jurisdictional sufficiency is concerned, a prosecutor's information will be tested by the same standards as an indictment” (Preiser, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 100.35, at 384–385), an instrument which, “as a general rule ... need only allege where, when and what the defendant did” (People v. Iannone, 45 N.Y.2d 589, 598 [1978] ). Inasmuch as the prosecutor's information was facially sufficient in its initial form, we need not and do not pass upon the efficacy of the midtrial amendment of the instrument permitted by the court.
We find unavailing defendant's challenge to the trial court's Molineux ruling allowing evidence that defendant made a series of threatening telephone calls to the complainant approximately one week before placing the phone call giving rise to this prosecution. The evidence was properly admitted since it was probative on the issue of defendant's intent, countered defense contentions, and provided necessary background to explain the relationship between the parties leading up to the incident giving rise to this prosecution ( see People v. Steinberg, 170 A.D.2d 50, 73 [1991],affd79 N.Y.2d 673 [1992];People v. Angel, 238 A.D.2d 210 [1997],lv denied90 N.Y.2d 1009 [1997] ).
To the extent that defendant's claim of ineffective assistance of counsel is reviewable on direct appeal, defense counsel provided meaningful representation ( see People v. Benevento, 91 N.Y.2d 708 [1998] ).