PEOPLE v. JOHNSON

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Supreme Court, Appellate Term, New York.

The PEOPLE of the State of New York, Respondent, v. Tyeleake JOHNSON, Appellant.

Decided: August 27, 2001

Present:  Hon. WILLIAM P. McCOOE, J.P., Hon. PHYLLIS GANGEL-JACOB, Hon. LUCINDO SUAREZ, Justices. Duroseau, Sullivan & DeMarco, Bronx (Brian J. Sullivan of counsel), for appellant. Robert T. Johnson, District Attorney of Bronx County (Stanley R. Kaplan of counsel), for respondent.

Judgment of conviction rendered May 19, 1999 (Burton Hecht, J.H.O .) affirmed.

 Defendant's present objection to the court's apparent failure to formally arraign him on the prosecutor's information, to the extent reviewable without timely protest below (compare, People v. White, 115 Misc.2d 800, 804-805, 454 N.Y.S.2d 792;  see also, People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233), is lacking in merit.   Since the prosecutor's information added no new charges and merely tracked the non-felony offenses contained in the original accusatory instrument on which defendant was properly arraigned, the absence of a formal arraignment on the prosecutor's information was at most a “procedural irregularity” which does not require reversal of defendant's otherwise valid conviction (People v. White, supra, 115 Misc.2d, at 805, 454 N.Y.S.2d 792).

 The prosecutor's information insofar as it charged defendant with second degree harassment was facially sufficient since it specifically referred to the statute defining the offense charged and set forth “a plain and concise statement of the conduct constituting [that] offense” (CPL 100.35), id est, that defendant subjected the complainant correction officer to “physical contact, or attempt[ed] or threaten[ed] to do the same.”   Nor was it incumbent upon the People to include in the prosecutor's information an allegation concerning the element of intent, at least in these circumstances where it is undisputed that the original accusatory instrument properly pleaded the intent element of the second degree harassment count contained in both instruments (cf., People v. Tarka, 75 N.Y.2d 996, 557 N.Y.S.2d 266, 556 N.E.2d 1073).  “[W]here jurisdictional sufficiency is concerned, a prosecutor's information will be tested by the same standards as an indictment” (Preiser, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 100.35, at 253), an instrument which, “as a general rule ․ need only allege where, when and what the defendant did” (People v. Iannone, 45 N.Y.2d 589, 598, 412 N.Y.S.2d 110, 384 N.E.2d 656).

PER CURIAM.