By: Cooper, J.P., Higgitt, McShan, JJ. 15-280. THE PEOPLE OF THE STATE OF NEW YORK,res, v. DESMOND HOSTEN, def-app — Judgment of conviction (Alexander M. Tisch, J. at plea; Neil E. Ross, J., at re-plea and sentencing), rendered April 28, 2014, affirmed. Since defendant waived his right to prosecution by information at the initial plea proceeding when he pleaded guilty to aggravated harassment in the second degree (see Penal Law § 240.30[1]), a second waiver was not required when, one year later, defendant was permitted to replead to the lesser charged offense of harassment in the second degree (see Penal Law § 240.26), a violation. “Having already waived his rights, a rigorous and detailed colloquy at defendant’s replea to a lesser charge, carrying with it a lesser sentence, would have been an unnecessary formalism” (People v. Muir, 134 AD3d 641 [2015], lv denied 26 NY3d 1147 [2016] [internal quotation marks and citation omitted]). The second plea was essentially an extension of the first plea, but with the conviction reduced to a violation for defendant’s benefit (id. at 642). Accordingly, we assess the accusatory instrument under the standard applicable to a misdemeanor complaint (see People v. Dumay, 23 NY3d 518, 522 [2014]). So viewed, the accusatory instrument was jurisdictionally valid, since the factual allegations establish reasonable cause to believe that defendant committed the harassment offenses charged. Allegations that defendant telephoned the police Internal Affairs Bureau and stated “I can’t take it no more, they always harass me…I’m going to bump off a cop, I’m going to get a gun and shoot a cop, the name of the officer who issued me a summons was Shaw,” were sufficient at the pleading stage to support a finding that defendant made a “genuine threat” of physical harm, as opposed to a mere “crude outburst” (People v. Dietze, 75 NY2d 47, 54 [1989]; see People v. Monet, 55 Misc 3d 145[A], 2017 NY Slip Op 50666[U] [App Term, 1st Dept 2017], lv denied 29 NY3d 1131 [2017]; see also Matter of Czop v. Czop, 21 AD3d 958, 959 [2005]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
By: Cooper, J.P., Higgitt, McShan, JJ. 15-413. THE PEOPLE OF THE STATE OF NEW YORK, res, v. MAXWELL ROACH, def-app — Judgment of conviction (Guy H. Mitchell, J.), rendered April 14, 2015, affirmed. The information charging disorderly conduct under the New York City Transit Authority Rule prohibiting any person from occupying more than one seat on a subway train (see 21 NYCRR § 1050.7[j][l]), was not jurisdictionally defective because it contained “nonconclusory factual allegations that, if assumed to be true, address[ed] each element of the crime charged, thereby affording reasonable cause to believe that defendant committed that offense” (People v. Middleton, 35 NY3d 952, 954 [2020], quoting People v. Matthew P., 26 NY3d 332, 335-336 [2015]). Moreover, the allegations satisfy the prima facie requirement. The instrument recited that on a specified date and time, a police officer “observed the defendant lying outstretched with feet extended across multiple seats aboard a northbound ‘A’ train;” that “[t]he train was crowded and there were approximately twenty passengers inside the train car at the time of [the] observation;” and that the officer was “a custodian of the New York City subway system and the defendant did not have permission or authority to engage in the above described conduct.” Contrary to defendant’s present claim, these allegations were sufficient for pleading purposes to support a reasonable inference that defendant’s conduct “interfere[d] or tend[ed] to interfere with…the comfort of other passengers” (21 NYCRR § 1050.7[j][l]; see People v. Richards, 61 Misc 3d 133[A], 2018 NY Slip Op 51458[U] [App Term, 1st Dept 2018]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
