STARKWEATHER, JESS, PEOPLE v ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
420
KA 10-00552
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
V MEMORANDUM AND ORDER
JESS STARKWEATHER, DEFENDANT-APPELLANT.
ROBERT M. PUSATERI, CONFLICT DEFENDER, LOCKPORT (EDWARD P. PERLMAN OF
COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL J. VIOLANTE, DISTRICT ATTORNEY, LOCKPORT (THOMAS H. BRANDT OF
COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Niagara County Court (Matthew J.
Murphy, III, J.), rendered February 9, 2010. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the second
degree (two counts).
It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him,
upon his guilty plea, of two counts of criminal contempt in the second
degree (Penal Law § 215.50 [3]). According to defendant, reversal is
required because the superior court information (SCI) charging him
with those offenses is jurisdictionally defective inasmuch as it fails
to allege that he was aware that an order of protection was in effect
when he had physical contact with the victim. We reject that
contention. An SCI “is subject to the same rules as an indictment
(CPL 200.15), and an indictment that states no more than the bare
elements of the crime charged and, in effect, parrots the Penal Law is
legally sufficient; the defendant may discover the particulars of the
crime charged by requesting a bill of particulars” (People v Price,
234 AD2d 978, 978, lv denied 90 NY2d 862; see People v Iannone, 45
NY2d 589, 598-599; see generally People v Fitzgerald, 45 NY2d 574,
580, rearg denied 46 NY2d 837). Although the SCI in this case does
not explicitly allege that defendant had knowledge of the order of
protection when he violated it by having physical contact with the
victim, the accusatory instrument is nevertheless jurisdictionally
sufficient inasmuch as it alleges, in conformance with Penal Law §
215.50 (3), that defendant “intentionally disobeyed a mandate of a
court; that is, the defendant intentionally disobeyed an Order of
Protection.” In any event, we note our agreement with the People that
the SCI sufficiently alleges defendant’s alleged knowledge of the
order of protection because he could not have intentionally violated
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KA 10-00552
the order of protection unless he knew of its existence.
Entered: April 1, 2011 Patricia L. Morgan
Clerk of the Court