People v. Burch

• Citation: 2012 N.Y. Slip Op. 05678,948 N.Y.S.2d 742,97 A.D.3d 987
• Parties: The PEOPLE of the State of New York, Respondent, v. Loren BURCH, Appellant.
• Decision Date: 19 July 2012
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 987
948 N.Y.S.2d 742
2012 N.Y. Slip Op. 05678

The PEOPLE of the State of New York, Respondent,
v.
Loren BURCH, Appellant.

Supreme Court, Appellate Division, Third Department, New York.

July 19, 2012.

Kelly L. Egan, Albany, for appellant.

P. David Soares, District Attorney, Albany (Kenneth C. Weafer of counsel), for respondent.

Before: ROSE, J.P., SPAIN, MALONE JR., KAVANAGH and EGAN JR., JJ.

[948 N.Y.S.2d 743]

EGAN JR., J.

[97 A.D.3d 987]Appeal from a judgment of the County Court of Albany County (Breslin, J.), rendered April 21, 2011, upon a verdict convicting defendant of the crime of criminal contempt in the first degree.

Defendant and the victim are the biological parents of two children. In February 2010, a temporary order of protection was entered in favor of the victim precluding defendant from having any contact with her. Two months later, and while the order of protection remained in effect, defendant arrived at the home of [97 A.D.3d 988]the victim's parents and demanded to speak with the victim.¹ The victim's mother repeatedly instructed defendant to leave and, when he refused, the two became involved in an altercation, prompting the victim to call 911 and then run across the street to secure the assistance of an off-duty member of the City of Albany Police Department.

As a result of this incident, defendant ultimately was indicted and charged in a second superseding indictment with criminal contempt in the first degree (count 1) and endangering the welfare of a child (counts 2 and 3). At the close of the People's proof, County Court granted defendant's motion to dismiss the second and third counts of the indictment, and the jury thereafter convicted defendant of the sole remaining charge of criminal contempt in the first degree. County Court subsequently sentenced defendant to a prison term of 1 to 3 years, prompting this appeal.

We affirm. As defendant did not move to dismiss the indictment due to the asserted lack of required signatures, this issue is unpreserved and is “ ‘reviewable as of right only if the missing signature renders the indictment jurisdictionally defective’ ” ( People v. Brown, 17 A.D.3d 869, 870, 793 N.Y.S.2d 270 [2005], quoting People v. Stauber, 307 A.D.2d 544, 545, 763 N.Y.S.2d 854 [2003],lv. denied100 N.Y.2d 599, 766 N.Y.S.2d 175, 798 N.E.2d 359 [2003];accord People v. Striplin, 48 A.D.3d 878, 879, 851 N.Y.S.2d 685 [2008],lv. denied10 N.Y.3d 871, 860 N.Y.S.2d 497, 890 N.E.2d 260 [2008] ). In this regard, the face of the indictment is signed by the presenting Assistant District Attorney, and the accompanying backer is signed by both the Assistant District Attorney and the grand jury foreperson. Accordingly, we are satisfied that the requirements of CPL 200.50(8) and (9) have been met ( see People v. Wheatley, 55 A.D.3d 947, 948, 865 N.Y.S.2d 381 [2008],lv. denied11 N.Y.3d 931, 874 N.Y.S.2d 16, 902 N.E.2d 450 [2009];People v. Striplin, 48 A.D.3d at 879, 851 N.Y.S.2d 685;People v. Brown, 17 A.D.3d at 870, 793 N.Y.S.2d 270).

Defendant's remaining challenge to the indictment is equally lacking in merit. “[W]here an indictment count incorporates by reference the statutory provision applicable to the crime intended to be charged, it has been repeatedly held that this is sufficient to apprise the defendant of the charge and, therefore, renders the count jurisdictionally valid” ( People v. Brown, 75 A.D.3d 655, 656, 903 N.Y.S.2d 825 [2010] [internal quotation marks and citation omitted]; accord People v. Griswold, 95 A.D.3d 1454, 1455, 944 N.Y.S.2d 346 [2012];see People v. Binns, 82 A.D.3d 1449, 1450, 918 N.Y.S.2d 753 [2011] ). Based upon our review of the relevant count of the indictment, which specifically recited, among other things, the provision of the Penal Law under which defendant had been charged, we are satisfied [97 A.D.3d 989]that

[948 N.Y.S.2d 744]

defendant was provided with fair notice of the charge against him.

Nor are we persuaded that defendant effectively was denied the right to be present at side bar conferences due to County Court's requirement that he be accompanied by a court officer. Although a criminal defendant indeed has a statutory right to be present for such conferences ( seeCPL 260.20; People v. Vargas, 88 N.Y.2d 363,...