PEOPLE v. USLOV (2021)

Judgments of conviction (Ann E. Scherzer, J.), rendered July 15, 2016, affirmed.

In view of defendant's knowing 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 under docket number 2014NY056096 was jurisdictionally valid because it described facts of an evidentiary nature establishing reasonable cause to believe that defendant was guilty of assault in the third degree (see Penal Law § 120.00). The instrument recites that defendant beat the victim, his wife, causing a “laceration under her right eye” that was “bleeding,” and “bruising and swelling to her right eye, nose and face and bruises on her torso and arms.” Based upon these allegations, one may reasonably infer that defendant intended to and did cause “physical injury” to the victim, i.e., “substantial pain” (Penal Law § 10.00[9]; see People v Henderson, 92 NY2d 677, 680 [1999]; People v Mercado, 94 AD3d 502 [2012], lv denied 19 NY3d 999 [2012]), a term which simply means “more than slight or trivial pain” (People v Chiddick, 8 NY3d 445, 447 [2007]).

With respect to docket number 2014NY092428, defendant's challenge to his plea to second-degree criminal contempt is unpreserved, since he failed to make an appropriate postallocution motion or otherwise raise this challenge in the plea court, despite ample opportunity to do so within the two months between his guilty plea and sentencing (see People v Laroche, 142 AD3d 872 [2016], lv denied 28 NY3d 1073 [2016]). We decline to review this challenge in the interest of justice. As an alternative holding, we find that the plea was knowing, intelligent and voluntary. Even if defense counsel's statement - that defendant resided at the location where he allegedly violated the “stay away” and do “not communicate” terms of the order of protection - was sufficient to cast doubt upon defendant's guilt to second-degree criminal contempt, the court “properly conducted further inquiry to ensure that defendant's plea was knowing and voluntary” (People v Lopez, 71 NY2d 662, 667 [1988]), and that he violated the order of protection by communicating with the protected person at the subject location (see People v Sandford, 173 AD3d 777, 778 [2019], lv denied 34 NY3d 984 [2019]).

Per Curiam.

All concur.