The following papers numbered 1 to 5 were read and considered after trial. Papers Numbered Information 1 Exhibits 2-3 DECISION AND ORDER Defendant is charged by a misdemeanor information filed, under Docket No. CR 2490-21, with one count of Criminal Obstruction of Breathing or Blood Circulation (P.L. §121.11), one count of Criminal Mischief in the Fourth Degree (P.L. §145.00), and one count of Harassment in the Second Degree (P.L. §240.26[1]). By accusatory dated March 18, 2021, under Docket No. CR 2685-21, defendant was charged with one count of Criminal Contempt in the Second Degree (P.L. §215.50). The accusatory alleged that defendant violated an order of protection issued on March 24, 2021, that “defendant had actual knowledge of [the order of protection] as he was advised on March 24, 2021 of its issuance and its contents” (Warrant Misdemeanor Information dated March 18, 2021, Docket No. CR-2685-21). Following a bench trial held on March 9, 2022, defense counsel moved to dismiss Docket No. CR-2685-21, on the grounds that same was jurisdictionally defective. This matter has been pending for quite some time and has appeared on the Court’s calendar for several appearances. Despite the foregoing, the People failed at any time to seek to amend the accusatory to reflect the correct date. The defect of the date of the accusatory is a non-waivable jurisdictional prerequisite to a criminal prosecution. As the accusatory pre-dated the alleged crime of Criminal Contempt in the Second Degree [P.L. §215.50] and pre-dated the Temporary Order of Protection issued pursuant to Docket No. CR-2490-21, the accusatory is dismissed as a jurisdictionally sufficient accusatory instrument is a necessary predicate for a valid trial. (See, People v. Johnson-McLean, 71 Misc.3d 31 [App. Term 2021]). At trial, the complaining witness, Genesis Burns, testified that on March 10, 2021 at approximately 10:30 P.M., defendant, her former boyfriend, pushed her against the wall with his hands on her neck and said, “Shut up bitch!” She stated that she was scared and unable to either breathe or speak.1 She testified that defendant then slapped her twice across the face, causing her glasses to break.2 She stated that she retreated to her mother and stepfather’s bedroom to wake them and that they told defendant to leave. Ms. Burns testified she contacted the Yonkers Police Department. Officer Jorge Mejia, from the Yonkers Police Department Second Precinct, testified that upon arriving at the scene he observed the apartment in disarray, and the complaining witness “in shock”. He further observed a pair of broken eyeglasses and what he described as bruising on the complaining witness’ neck. Defendant testified on his own behalf that he went to the complaining witness’ apartment to retrieve a bracelet given as a gift while they were romantically involved. While defendant acknowledged they had an argument and that the complaining witness’ mother asked him to leave, he denied physically assaulting, choking or slapping the complaining witness at any time and denied any knowledge as to how her glasses may have broken. He said he did not retrieve any of his belongings from the residence that night or any time after. Defense counsel submitted in closing that the dockets should be dismissed for insufficient evidence. He noted that there was no dispute that at the time of the incident, the complaining witness’ parents were home, although never called to testify. Rather, counsel argued, the People only called the complaining witness and two police officers. He claimed this case was simply a matter of “he said, she said”, and that there was insufficient evidence. To sustain a charge of Criminal Obstruction of Breathing or Blood Circulation (P.L. §121.11) the People must establish beyond a reasonable doubt that the defendant, “with intent to impede the normal breathing or circulation of the blood of another person, [ ] (a) applies pressure on the throat or the neck of such person; or (b) blocks the nose or mouth of such person.” In support of their case, the People called the complaining witness and the responding officer to testify and submitted photographic evidence of the welt on the complaining witness’ neck (People Exs. 1A and 1B) which the police observed. This Court finds that the evidence presented supports this charge. To sustain a charge of Criminal Mischief in the Fourth Degree (P.L. §145.00) the People must establish that defendant “having no right to do so nor any reasonable ground to believe that he or she has such right, he or she: (1) intentionally damages property of another person”. The People argued that defendant broke the complaining witness’ prescription eyeglasses which caused her to pay nine hundred dollars ($900.00) to replace same. The People asserted that the charge was supported by the testimony of the complaining witness and the police officer’s observation as well as the photograph admitted into evidence of the broken eyeglasses. (People Ex. 2). The Second Department has held that “[] [a] property owners’ conclusory statements of the amount of damage to their property [] are legally insufficient to sustain those counts of the petition alleging crimes”. In re John B., 261 A.D.2d 471, 472 [2nd Dept. 1999]; see also, People v. David, 133 A.D.2d 277 [2d Dept., 1987]. This Court finds accordingly that the testimony submitted by the People along with the picture of the broken glasses are insufficient to support the instant charge of Criminal Mischief in the Fourth Degree. This charge is dismissed. To sustain a charge of Harassment in the Second Degree (P.L.§240.26[1]) the People must demonstrate that defendant, with the intention to either harass, annoy or alarm the complaining witness, struck, shoved, kicked another person or “[o]therwise subjects such other person to physical contact, or attempts or threatens to do the same.” The Court has found defendant guilty of Criminal Obstruction of Breathing and must also find defendant guilty of Harassment in the Second Degree in that the Court has determined defendant applied “pressure on the throat or neck” and therefore must have subjected “such other person to physical contact”, a required element of the charge of Harassment in the Second Degree. The testimony of the complaining witness that defendant pushed her against the wall, placed his hands around her neck and choked her and slapped her in the face, support this charge. Accordingly, the Court finds defendant guilty of violating Penal Law P.L. §121.11 and §240.26[1] and the charges of P.L. §145.00 and P.L. §215.50 are dismissed. The above entitled matter will appear on the Court’s calendar for a virtual sentencing conference on May 5, 2022 at 9:30 A.M. Appearances are required. Dated and Entered: April 13, 2022
