Opinion
04-06-2016
The PEOPLE of the State of New York, Respondent, v. Matthew KWAS, Appellant.
Matthew Kwas, appellant pro se. Madeline Singas, District Attorney, Mineola (Kevin King and Monica M.C. Leiter of counsel), for respondent.
Matthew Kwas, appellant pro se.
Madeline Singas, District Attorney, Mineola (Kevin King and Monica M.C. Leiter of counsel), for respondent.
PRESENT: MARANO, P.J., IANNACCI and GARGUILO, JJ.
Opinion
Appeal from judgments of the District Court of Nassau County, First District (Rhonda E. Fischer, J.), rendered May 1, 2012. The judgments convicted defendant, upon his pleas of guilty, of stalking in the fourth degree and attempted criminal contempt in the second degree, respectively. ORDERED that so much of the appeal as is from the judgment convicting defendant of attempted criminal contempt in the second degree is dismissed as abandoned; and it is further,
ORDERED that the judgment convicting defendant of stalking in the fourth degree is affirmed.
In satisfaction of multiple charges, defendant pleaded guilty, pursuant to a negotiated plea agreement, to stalking in the fourth degree (Penal Law § 120.45 ) and attempted criminal contempt in the second degree (Penal Law §§ 110.00, 215.50[3] ), and he waived his right to appeal. On appeal, defendant contends that the information charging him with stalking in the fourth degree is jurisdictionally defective.
In order for an information to be facially sufficient, it must contain nonhearsay allegations which establish, if true, every element of the offense charged and the defendant's commission thereof (CPL 100.40[1] ; see People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 [2000] ). These requirements—with the exception of a claim of hearsay, which is waived if it is not raised in a timely motion, and forfeited as a consequence of a guilty plea (see People v. Keizer, 100 N.Y.2d 114, 121, 760 N.Y.S.2d 720, 790 N.E.2d 1149 [2003] )—are jurisdictional (see People v. Casey, 95 N.Y.2d at 363–365, 717 N.Y.S.2d 88, 740 N.E.2d 233 ), and defendant's jurisdictional challenge survives both a guilty plea and the waiver of the right to appeal (People v. Oliveri, 49 A.D.3d 1208, 1209, 856 N.Y.S.2d 354 [2008] ; see People v. Lopez, 6 N.Y.3d 248, 255, 811 N.Y.S.2d 623, 844 N.E.2d 1145 [2006] ; People v. Hansen, 95 N.Y.2d 227, 230–231, 715 N.Y.S.2d 369, 738 N.E.2d 773 [2000] ; People v. June, 30 A.D.3d 1016, 1017, 817 N.Y.S.2d 799 [2006] ). The law does not require that the most precise words or phrases which most clearly express the thought be provided in an information, but only that the crime be alleged and the specifics set forth so that a defendant can prepare himself for trial, and so that he will not be tried again for the same offense (People v. Konieczny, 2 N.Y.3d 569, 575, 780 N.Y.S.2d 546, 813 N.E.2d 626 [2004] ; People v. Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ). Penal Law § 120.45 provides, in pertinent part:
“A person is guilty of stalking in the fourth degree when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at
a specific person, and knows or reasonably should know that such conduct:
...
2. causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person's immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct.”
Contrary to defendant's contention, the information is not jurisdictionally defective. The supporting deposition of Patricia Calvert accompanying the information (see CPL 100.20 ; 100.40[1][b] ) contains the allegation that she had asked defendant to stop following her and contacting her, “but he continues.” As a matter of “common sense and reasonable pleading” (People v. Davis, 13 N.Y.3d 17, 31, 884 N.Y.S.2d 665, 912 N.E.2d 1044 [2009] ; see also People v. Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ), this allegation sufficiently sets forth facts (see People v. Thomas, 4 N.Y.3d 143, 146, 791 N.Y.S.2d 68, 824 N.E.2d 499 [2005] ) which establish that defendant was “previously clearly informed to cease that conduct” (Penal Law § 120.45[2] ). The statute does not require that the information contain an allegation stating the precise time when, and the exact place where, a defendant “was previously clearly informed to cease that conduct” (Penal Law § 120.45[2] ). The factual allegations contained in the supporting deposition indicate that Ms. Calvert had previously advised defendant to cease the offensive conduct within a reasonable period of time prior to the incident.
For pleading purposes, the requisite mental state may be alleged on the basis of a logical inference from the act itself or upon the surrounding circumstances (People v. Bishop, 41 Misc.3d 144[A], 2013 N.Y. Slip Op. 52063[U], *2, 2013 WL 6500895 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2013] ). Proof of a state of mind, such as guilty knowledge or intent, absent a confession, is normally based on circumstantial evidence (see People v. Bishop, 41 Misc.3d 144[A], 2013 N.Y. Slip Op. 52063[U], *2, 2013 WL 6500895 ; see also People v. Johnson, 65 N.Y.2d 556, 561, 493 N.Y.S.2d 445, 483 N.E.2d 120 [1985] ; People v. Mackey, 49 N.Y.2d 274, 279, 425 N.Y.S.2d 288, 401 N.E.2d 398 [1980] ; People v. Collins, 178 A.D.2d 789, 789, 578 N.Y.S.2d 273 [1991] ; People v. Prevete, 10 Misc.3d 78, 809 N.Y.S.2d 777 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2005]; People v. Ramnauth, 8 Misc.3d 128[A], 2005 N.Y. Slip Op. 50968[U], 2005 WL 1522806 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2005], citing People v. Bracey, 41 N.Y.2d 296, 301, 392 N.Y.S.2d 412, 360 N.E.2d 1094 [1997] ). “Since intent' is an operation of mind and cannot be the subject of a nonhearsay evidentiary allegation, it [is] not necessary to repeat the intent allegation in the factual part.... It is necessary only that there be alleged evidentiary facts from which intent may be inferred” (People v. Bishop, 41 Misc.3d 144[A], 2013 N.Y. Slip Op. 52063[U], *2, 2013 WL 6500895 [citations omitted]; see People v. Dasilva, 21 Misc.3d 141[A], 2008 N.Y. Slip Op. 52374[U], 2008 WL 5005198 [App.Term, 2d Dept., 9th & 10th Jud.Dists.2008] ).
Furthermore, contrary to defendant's contention, Ms. Calvert alleged in her supporting deposition that defendant's conduct caused her emotional distress and that she feared for her safety. In our view, the allegations contained in the information sufficiently alleged facts which establish that defendant knew or reasonably should have known that his conduct “causes material harm to the mental or emotional health” of the targeted person (Penal Law § 120.45[2] ).
The statute's requirement that the defendant's conduct have “no legitimate purpose' means the absence of a reason or justification to engage someone, other than to hound, frighten, intimidate or threaten” (People v. Stuart, 100 N.Y.2d 412, 428, 765 N.Y.S.2d 1, 797 N.E.2d 28 [2003] ). Here, the information alleged that, between June 27, 2010 and August 19, 2010, defendant “constantly showed up at [Patricia Calvert's] place of employment,” called and texted her, and went to her residence at all hours of the day and night. Ms. Calvert's supporting deposition provides that she had asked defendant to “stop following [her] and contacting [her] but he continues.” Additionally, she alleged that, on August 19, 2010, defendant walked into her home uninvited and refused to leave when she asked him to do so. She further alleged that defendant had been following her for days, that he had gone to her place of employment—from which she had been fired due to defendant's behavior—and that he had contacted her by telephone on August 19, 2010. As a result, “[t]he common understanding” (People v. Stuart, 100 N.Y.2d at 428, 765 N.Y.S.2d 1, 797 N.E.2d 28 ) of the phrase “no legitimate purpose” under Penal Law § 120.45(2) put defendant on notice that his pursuit of Ms. Calvert was unlawful. The sheer volume of unwanted contact and communications can establish the “no legitimate purpose” element of Penal Law § 120.45(2) (see People v. Sonee, 25 Misc.3d 128[A], 2009 N.Y. Slip Op. 52076[U], 2009 WL 3298054 [App.Term, 1st Dept.2009] ). Thus, the information herein served its fundamental purpose—to afford defendant his due process right to a fair opportunity to prepare a defense and to avoid being charged twice with the same offense (People v. Casey, 95 N.Y.2d at 360, 717 N.Y.S.2d 88, 740 N.E.2d 233 ). Moreover, regardless of whether defendant waived his right to appeal or not, his contention—that, in effect, the People improperly withheld Rosario and Brady materials from him—was forfeited by pleading guilty (see People v. Huggins, 105 A.D.3d 760, 961 N.Y.S.2d 784 [2013] ; People v. Kidd, 100 A.D.3d 779, 953 N.Y.S.2d 863 [2012] ; People v. Philips, 30 A.D.3d 621, 817 N.Y.S.2d 373 [2006] ; People v. Knickerbocker, 230 A.D.2d 753, 646 N.Y.S.2d 171 [1996] ).
Accordingly, the judgment convicting defendant of stalking in the fourth degree is affirmed. So much of the appeal as is from the judgment convicting defendant of attempted criminal contempt in the second degree is dismissed as abandoned, as no issue was raised on appeal with respect thereto.
MARANO, P.J., IANNACCI and GARGUILO, JJ., concur.