People v. Bruce-Ross, 2013–1180 S CR

• Decision Date: 10 May 2018
• Docket Number: 2013–1180 S CR
• Parties: The PEOPLE of the State of New York, Respondent, v. Duncan F. BRUCE–ROSS, Appellant.
• Court: New York Supreme Court — Appellate Term

59 Misc.3d 143 (A)
108 N.Y.S.3d 263 (Table)

The PEOPLE of the State of New York, Respondent,
v.
Duncan F. BRUCE–ROSS, Appellant.

2013–1180 S CR

Supreme Court, Appellate Term, New York.

Decided on May 10, 2018

ORDERED that the judgment of conviction is affirmed.

Defendant was originally charged, in a felony complaint, with criminal contempt in the first degree ( Penal Law § 215.51 ) and criminal mischief in the third degree ( Penal Law § 145.05 [2 ] ), based on a violation of a Family Court domestic violence order of protection that had been issued on behalf of defendant's companion and mother of their infant child, and the vandalizing of the companion's automobile. The felonies were reduced to the misdemeanors of criminal contempt in the second degree ( Penal Law § 215.50 ) and criminal mischief in the fourth degree ( Penal Law § 145.00 [1 ] ), and the People added a second charge of criminal contempt in the second degree, based on a violation of a different order of protection, and a charge of endangering the welfare of a child ( Penal Law § 260.10 ). The charges were consolidated for trial. After a jury trial, defendant was convicted of one charge of criminal contempt in the second degree and acquitted of the remaining charges. Defendant appeals and we affirm.

The information alleging the offense of which defendant was convicted was facially sufficient inasmuch as the attached certified copy of the relevant order of protection established that defendant had been present when the order had been issued and had been informed of the prohibited behavior (see e.g. People v. Pierre–Louis , 53 Misc 3d 130[A], 2016 NY Slip Op 51370[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; People v. Labagh , 40 Misc 3d 54, 57 [App Term, 2d Dept, 9th & 10th Jud Dists 2013]; People v. Caruso , 39 Misc 3d 137[A], 2012 NY Slip Op 52461[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2012]; see also People v. Ferenchak , 82 AD3d 1692, 1693 [2011] ; cf. People v. Bulgin, 105 AD3d 551 [2013] ). Defendant's claim that the expression "acts or threats of domestic violence" in New York Social Services Law article 6–A (see Social Services Law § 459–a [1 ] ) is unconstitutionally vague on its face was not raised at the trial and is not preserved for appellate review (see CPL 470.05 [2 ]; see e.g. People v. Reyes , 4 AD3d 541, 541 [2004] ; People v. Iannelli , 69 NY2d 684, 685 [1986] ). Further, there is no indication that defendant has notified the Attorney General of his constitutional claim (see Executive Law § 71 [1 ]; CPLR 1012 [b] [1] ), which failure generally precludes an appellate court from passing on the merits of the claim (see Executive Law § 71 [3 ]; CPLR 1012 [b] [3]; e.g. Matter of Guidarelli v. Brassard , 88 AD3d 1147, 1149 [2011] ; People v. McKeehan , 2 AD3d 1421, 1422 [2003] ; Jefferds v. Ellis , 122 AD2d 595, 596 [1986] ).

Defendant's claim that he was not present, as required (see CPL 170.10 [1 ] ), when his counsel entered not guilty pleas on his behalf, is also without merit. "A presumption of regularity attaches to judicial proceedings" which may be overcome "only by substantial evidence." That standard is not satisfied merely by a stenographer's failure to record a defendant's presence ( People v. Velasquez , 1 NY3d 44, 48 [2003] ; see also People v. Hall , 156 AD3d 1475 [2017] ; People v. Walker , 78 AD3d 1671, 1672 [2010] ; People v. Yusuf , 47 Misc 3d 138 [A], 2015 NY Slip Op 50583[U], *2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015] ). Even were it the case that defendant was never properly arraigned, the error is not fundamental, and "inasmuch as defendant appeared in court with his attorney and submitted to the court's jurisdiction,...