The People of the State of New York, Respondent, v. Anthony Lagano, Appellant. (2023)

ORDERED that the judgment of conviction is affirmed.

In a misdemeanor information dated May 30, 2017, defendant was charged with aggravated harassment in the second degree (Penal Law § 240.30 [1] [a]). One year later, the People filed a prosecutor's information, charging defendant with one count of aggravated harassment in the second degree and one count of harassment in the second degree (Penal Law § 240.26 [1]). Thereafter, the count charging defendant with aggravated harassment in the second degree was reduced to attempted aggravated harassment in the second degree.

The case proceeded to a nonjury trial on October 29, 2018 and, after trial, defendant was convicted of harassment in the second degree (Penal Law § 240.26 [1]), and was acquitted of the other charge. By decision and order dated July 30, 2021, this court reversed the judgment of conviction on the ground that the evidence at trial was legally insufficient to establish defendant's guilt of harassment in the second degree beyond a reasonable doubt (People v Lagano, 72 Misc 3d 138[A], 2021 NY Slip Op 50767[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). On December 13, 2022, the Court of Appeals reversed the decision and order of this court, concluding that the evidence was legally sufficient to establish defendant's guilt, and remitted the matter to this court for a determination of the facts and issues raised but not determined on the appeal (People v Lagano, 39 NY3d 108 [2022]).

Defendant's challenge to the count of the prosecutor's information charging him with harassment in the second degree is without merit. Pursuant to CPL 100.50 (2), the People properly filed a superseding prosecutor's information that added the new charge of harassment in the second degree based on the factual allegation set forth in the original information.

Defendant further contends that the judgment convicting him of harassment in the second degree should be reversed since he was not arraigned on that charge. However, even if 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, consented to the assignment of a trial date and . . . proceeded to trial fully aware of the charge asserted against him," defendant suffered no prejudice by the procedure followed (People v Hallenbeck, 81 AD3d 1077, 1078-1079 [2011]; see People v Bruce-Ross, 59 Misc 3d 143[A], 2018 NY Slip Op 50696[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; People v Brigandi, 57 Misc 3d 5, 7 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; People v Repanti, 40 Misc 3d 131[A], 2013 NY Slip Op 51132[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2013], affd 24 NY3d 706 [2015]).

Finally, defendant's contention that the People changed the theory of the case upon prosecuting him on the added charge of harassment in the second degree is unpreserved for appellate review (see CPL 470.05 [2]; People v Gibson, 106 AD3d 834 [2013]) and we decline to review it.

Accordingly, the judgment of conviction is affirmed.

BUGGS, J.P., OTTLEY and VENTURA, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: March 3, 2023