Opinion
No. 124 SSM 49.
Decided June 3, 2010.
APPEAL, by permission of a Justice of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered February 3, 2009. The Appellate Division affirmed a judgment of the Criminal Division of the Supreme Court, Bronx County (Michael A. Gross, J.), which had convicted defendant, after a nonjury trial, of attempted aggravated harassment in the second degree.
The complainant's daughter and defendant's daughter were involved in an altercation outside their high school. Defendant was a school safety officer assigned to the school. Defendant testified that, at the direction of the school's assistant principal for security, she placed a telephone call to the complainant the day after the incident, and that she stated that she asked the complainant to come to the school with her daughter to participate in a mediation with defendant's daughter. Defendant claimed that she made the call strictly in her official capacity. The complainant testified that defendant did call her, but stated to her "If [you] cared about [your] daughter's well-being, about [your] daughter's safety, you [will] drop the charges."
The Appellate Division concluded that defendant's statement constituted a threat that satisfied the aggravated harassment statute because it specifically referred to placing the safety of the complainant's daughter in jeopardy, and that the threat was credible because defendant, as a school safety officer, was in a position to jeopardize the well-being of complainant's daughter.
People v Wilson, 59 AD3d 153, affirmed.
Legal Aid Society, New York City ( Adrienne Gantt of counsel), for appellant.
Robert T. Johnson, District Attorney, Bronx ( Kayonia L. Whetstone of counsel), for respondent.
Before: Judges CIPAKICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed.
After a nonjury trial, defendant was convicted of attempted aggravated harassment in the second degree, a misdemeanor. She appealed her conviction, which was affirmed by the Appellate Division in a divided decision. One of the Appellate Division dissenters granted defendant leave to appeal.
Defendant does not argue that reversal is warranted because her appeal was heard by the Appellate Division rather than the Appellate Term.
In this Court, contending that her misdemeanor case was tried in Supreme Court, defendant argues for the first time that the trial court lacked the subject matter jurisdiction to adjudicate the matter because it was prosecuted on a misdemeanor information and not an indictment or superior court information (SCI) issued upon waiver of indictment. The People dispute defendant's claim, asserting that the case was resolved in New York City Criminal Court, Bronx County, and was presided over by a New York City Criminal Court Judge who was also an Acting Supreme Court Justice. In addition, the People maintain that Supreme Court possesses the subject matter jurisdiction to try misdemeanors, regardless of whether they are charged in a misdemeanor information, an indictment or an SCI.
Defendant's claim that the trial court lacked subject matter jurisdiction to issue a judgment of conviction may be considered on appeal, despite her failure to timely raise the issue, because it falls within an exception to the preservation rule ( see People v Casey, 95 NY2d 354, 365; see e.g. People v Nicometi, 12 NY2d 428). Even assuming that defendant's case was tried in Supreme Court, she is not entitled to reversal of her conviction on jurisdictional grounds because Supreme Court possesses concurrent subject matter jurisdiction over the trial of unindicted misdemeanor offenses ( see People v Correa, 15 NY3d 213 [decided herewith]). Anticipating this holding, defendant argues in the alternative that, even if Supreme Court may resolve misdemeanor charges, the transfer of her case from New York City Criminal Court to Supreme Court was impermissible since court rules creating the Criminal Division of the Supreme Court in Bronx County and directing the reassignment of certain misdemeanor cases to that court for trial were not in effect on the date of her conviction ( see id.; 22 NYCRR parts 42, 142). Given that Supreme Court had the power to hear the case, the transfer error defendant alleges is the equivalent of an improper venue claim, which is not jurisdictional in nature and is waived if not timely raised ( see People v Carvajal, 6 NY3d 305, 312 ["venue issues — which relate only to the proper place of trial, rather than to the power of the court to hear and determine the case — are waivable"] [emphasis and citation omitted]). Because defendant did not object in the trial court to the (purported) transfer of her case to Supreme Court, we may not consider this alternative claim.
Finally, we have reviewed defendant's challenge to the jurisdictional sufficiency of the accusatory instrument and find it to be lacking in merit.
Chief Judge LIPPMAN taking no part.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed in a memorandum.