People v Dimuzio (Joseph)

[*1] People v Dimuzio (Joseph) 2005 NYSlipOp 50722(U) Decided on May 16, 2005 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 16, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: RUDOLPH, P.J., McCABE and TANENBAUM, JJ.
2003-523 N CR

The People of the State of New York, Respondent,

against

Joseph Dimuzio, Appellant.

Appeal by defendant from a judgment of the District Court, Nassau County (M. Fiechter, J.), rendered on March 12, 2003, convicting him of aggravated harassment in the second degree (Penal Law § 240.30 [1]) and imposing sentence.

Judgment of conviction unanimously affirmed.

Contrary to defendant's contention, the information is not jurisdictionally defective since the factual allegations contained therein together with the supporting deposition provide reasonable cause to believe defendant committed the offense charged in the accusatory portion thereof and the nonhearsay allegations of the factual part establish, if true, each and every element of the offense charged (see CPL 100.15, 100.40; see People v Casey, 95 NY2d 354 [2000]).

Although some of the evidence the People presented at trial contradicted the factual allegations set forth in the information, the statement by the defendant made to the complainant during a telephone conversation initiated by defendant, to the effect that he engaged in certain sexual acts with the complainant's wife, did not contradict the factual allegations contained in the information and supporting deposition. Defendant had ample opportunity to prepare a defense and avoid prosecution for the same crime (see People v Grega, 72 NY2d 489 [1998]).

Contrary to defendant's contention, the statute in question is neither unconstitutional on its face (see People v Goldstein, 196 Misc 2d 741, 745 [App Term, 2d & 11th Jud Dists 2003]) nor unconstitutional as applied to him. Communications may be proscribed without offending [*2]free speech protection (see People v Shack, 86 NY2d 529 [1995]). Therefore, we find no basis to disturb the judgment of conviction.
Decision Date: May 16, 2005