People v Komizorov (Yan)

[*1] People v Komizorov (Yan) 2012 NY Slip Op 50382(U) Decided on March 8, 2012 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 8, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Torres, JJ
11-192.

The People of the State of New York, Respondent, - -

against

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.

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 NY2d 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 NY2d 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 [*2]Steinberg, 170 AD2d 50, 73 [1991], affd 79 NY2d 673 [1992]; People v Angel, 238 AD2d 210 [1997], lv denied 90 NY2d 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 NY2d 708 [1998]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 08, 2012