By: Shulman, P.J., Ling-Cohan, Edmead, JJ.16-373. THE PEOPLE OF THE STATE OF NEW YORK, res, v. RAFAEL BAH, def-app — Judgment of conviction (Laurie Peterson, J.), rendered January 13, 2016, affirmed.The misdemeanor complaint was jurisdictionally valid, since it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of aggravated harassment in the second degree (see Penal Law §240.30[3]; see also People v. Dumay, 23 NY3d 518, 522 [2014]). Allegations that at a specified date, time and location, defendant approached two named individuals and stated “America doesn’t approve of homosexuals like you, I choked people like you to death in Afghanistan, if we were outside, I’d beat the shit out of you,” while defendant repeatedly pointed his finger in said individuals’ faces and stood directly in front of them, were sufficient at the pleading stage to support a finding that defendant made a “genuine threat [to] physical[ly] harm” the victims (People v. Dietze, 75 NY2d 47, 54 [1989]) and placed them in reasonable fear of harmful physical contact (see People v. Thomas, 58 AD3d 445, 446 [2009], lv denied 12 NY3d 788 [2009]; People v. Green, 41 Misc 3d 134[A], 2013 NY Slip Op 51863[U] [App Term, 1st Dept 2013], lv denied 22 NY3d 1139 [2014]), based on defendant’s perception of their sexual orientation (see Penal Law §240.30[3]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 20, 2019
By: Shulman, P.J., Ling-Cohan, Edmead, JJ.14-045. THE PEOPLE OF THE STATE OF NEW YORK, res, v. NYASIA BULLOCK, def-app — Judgment of conviction (Felicia A. Mennin, J.), rendered July 31, 2012, affirmed.In view of defendant’s waiver of the right to prosecution by information, the accusatory instrument only had to satisfy the reasonable cause requirement (see People v. Dumay, 23 NY3d 518, 522 [2014]). So viewed, the accusatory instrument charging petit larceny was jurisdictionally valid, since it gave defendant sufficient notice of the charged conduct to prepare a defense and avoid double jeopardy (see People v. Kasse, 22 NY3d 1142 [2014]), specified information from which the taking and intent elements of the offense could be inferred (see People v. Olivo, 52 NY2d 309 [1981]), and provided reasonable cause to believe that defendant wrongfully took property from the owner thereof (see Penal Law §§155.25, 155.05).Defendant’s argument that her guilty plea was invalid because the court failed to advise her of her constitutional rights under Boykin v. Alabama (395 US 238 [1969]) is unpreserved, since defendant “could have sought relief from the sentencing court in advance of the sentence’s imposition” (People v. Murray, 15 NY3d 725, 727 [2010]; see People v. Jackson, 123 AD3d 634 [2014], lv denied 25 NY3d 1202 [2015]), and we decline to review this unpreserved claim in the interest of justice. As an alternative holding, we find the record as a whole establishes the voluntariness of the plea (see People v. Conceicao, 26 NY3d 375 [2015]).THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.March 20, 2019
