17-158. THE PEOPLE OF THE STATE OF NEW YORK, app, v. ROBERT BRYANT, def-res — Order (Laurence E. Busching, J.), dated April 27, 2016, reversed, on the law, and the superseding information reinstated.Criminal Court erred in dismissing the accusatory instrument on facial sufficiency and speedy trial grounds. The People’s superseding information, filed on November 2, 2015, was not jurisdictionally defective. The instrument contained sworn allegations by a police sergeant alleging that he was “flagged down” by an individual prior to receiving a radio run for an assault in progress; that “upon arriving at the [stated] location, a private house,” he observed the complaining witness, who “was crying and visibly upset,” sitting on the front steps “bleeding from the mouth,” “missing a tooth…and [with] swelling on her forehead”; and that the complaining witness identified her husband as the perpetrator, stating “MY HUSBAND BEAT ME UP. HE IS IN THE HOUSE. HIS NAME IS ROBERT. HE PUNCHED ME NUMEROUS TIMES IN THE FACE.”Giving these facts “a fair and not overly restrictive or technical reading” (People v. Casey, 95 NYd 354, 360 [2000]), we find the sworn police allegations were sufficient to establish reasonable cause to believe and a prima facie case that defendant was guilty of assault in the third degree (see Penal Law §120.00[1]) and harassment in the second degree (see Penal Law §240.26[1]). Contrary to defendant’s contention, the superseding information satisfied the nonhearsay requirement of CPL 100.40(1)(c) since it contained either nonhearsay allegations or allegations which “would be admissible under some hearsay rule exception” (People v. Casey, 95 NY2d at 361). In this regard, the allegations reasonably justify the conclusion that the victim’s statements to the officer qualify for admission under the excited utterance exception to the hearsay rule (see People v. Johnson, 1 NY3d 302 [2003]), since the statements were made while still under the influence of the stress of the incident (see People v. Johnson, 129 AD3d 486 [2015], lv denied 26 NY3d 1089 [2015]; People v. Auleta, 82 AD3d 1417, 1419 [2011], lv denied 17 NY3d 813 [2011]; People v. Mitchell, 46 AD3d 480 [2007], lv denied 10 NY3d 842 [2008]), and not under the impetus of studied reflection (see People v. Edwards, 47 NY2d 493, 497 [1979]).Inasmuch as the People converted the accusatory instrument into a facially sufficient information on November 2, 2015, which was well within the period of readiness prescribed by CPL 30.30[1][b]), the motion to dismiss on speedy trial grounds should have been denied.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 22, 201814-366. THE PEOPLE OF THE STATE OF NEW YORK, res, v. JOSE CESPEDES, def-app — Judgment of conviction (John J. DeLury, J.H.O.) rendered, February 27, 2014, affirmed.The accusatory instrument was not jurisdictionally defective. Police allegations that, on a particular date and time, and in “f/o 231 Edgecombe Avenue,” defendant was “observed urinating in public view,” were sufficient for pleading purposes to charge defendant with public urination (see People v. Gomez, 55 Misc 3d 144[A], 2017 NY Slip Op 50641[U] [App Term, 1st Dept 2017], lv denied 30 NY3d 980 [2017]). The citation in the accusatory instrument to an incorrect subsection of New York City Administrative Code §16-116 — that is, §16-116(1) rather than §16-116(6) — is disregarded as mere surplusage, since the instrument fully advised defendant of the facts relied upon to constitute the alleged violation (see People v. Love, 306 NY 18, 23 [1953]; People v. Hare, 66 Misc 2d 207 [App Term, 1st Dept 1971]; see also People v. Jackson, 128 AD3d 1279 [2015], lv denied 26 NY3d 930 [2015]; People v. Rodriguez, 97 AD3d 246 [2012], lv denied 19 NY3d 1028 [2014]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 22, 201814-434. THE PEOPLE OF THE STATE OF NEW YORK, res, v. CARLOS PENA, def-app — Judgment of conviction (Alvin M. Yearwood, J.), rendered January 21, 2014, affirmed.The verdict convicting defendant of attempted criminal contempt in the second degree (see Penal Law §§110.00/ 215.50[3]) and harassment in the second degree (see Penal Law §240.26[1]) was supported by legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the court’s credibility determinations. There was ample evidence of defendant’s guilt, including the testimony of the complainant, defendant’s estranged wife, that defendant threatened to “kill” her, in violation of a valid order of protection, as well as the testimony of a police officer who observed the visibly upset complainant and her children shortly after the incident (see People v. Kaplan, 125 AD3d 465 [2015], lv denied 25 NY3d 1203 [2015]; People v. Delvecchio, 106 AD3d 624 [2013], lv denied 22 NY3d 955 [2013]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 22, 201815-295. THE PEOPLE OF THE STATE OF NEW YORK, res, v. EDGARDO REYES, def-app — Judgment of conviction, (Ann E. Scherzer, J., at plea; Laurie Peterson, J., at sentencing), rendered November 14, 2014, affirmed.Defendant’s contention that his plea was not knowing, voluntary and intelligent is unpreserved for appellate review, since defendant did not make a postallocution motion to withdraw his plea or to set aside the judgment of conviction pursuant to CPL 440.10 (see People v. Conceicao, 26 NY3d 375, 381-382 [2015]; People v. Jackson, 123 AD3d 634 [2014], lv denied 25 NY3d 1202 [2015]) and we decline to review it in the interest of justice. Unlike the situation in People v. Tyrell (22 NY3d 359 [2013]), defendant had the opportunity to move to withdraw his plea or otherwise raise the issue and the alleged deficiency did not rise to the level of a mode of proceedings error (see People v. Powell, 134 AD3d 647 [2015], lv denied 27 NY3d 1073 [2016]). As an alternative holding, we find that the plea was knowing, intelligent and voluntary, notwithstanding the absence of a full enumeration of all the rights waived during the course of the allocution (see People v. Sougou, 26 NY3d 1052, 1054 [2015]; People v. Simmons, 138 AD3d 520 [2016], lv denied 27 NY3d 1139 [2016]).In any event, defendant expressly requests that he does not want his plea to be vacated unless we were to dismiss the accusatory instrument based on his completion of his sentence. Since dismissal is not warranted (see People v. Conceicao, 26 NY3d at 385 n 1 [2015]; People v. Teron, 139 AD3d 450 [2016]), we affirm on this basis as well (see People v. Diaz, 112 AD3d 423 [2013], lv denied 23 NY3d 1036 [2014]; People v. Schweitzer, 83 AD3d 503 [2011], lv denied 17 NY3d 800 [2011]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 22, 201816-348. THE PEOPLE OF THE STATE OF NEW YORK, res, v. ALVIN SPARKS, def-app — Judgment of conviction, (Laurence E. Busching, J.), rendered December 3, 2015, affirmed.Defendant’s guilty plea was knowing, intelligent and voluntary (People v. Conceicao, 26 NY3d 375, 382 [2015]; People v. Sougou, 26 NY3d 1052, 1054 [2015]). At the plea proceeding defendant, among other things, waived prosecution by information and formal allocution, admitted his guilt to the offense to which he was pleading, stated that he was pleading guilty freely and voluntarily after consultation with counsel, and that he understood he was giving up his rights to a trial by jury, to remain silent, to call witnesses and to confront the People’s witnesses. Thus, the record as a whole establishes defendant’s understanding and waiver of his constitutional rights (see Boykin v. Alabama, 395 US 238 [1969]), and nothing in the allocution casts any doubt on the plea’s voluntariness.THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.January 22, 2018
