        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

898
KA 14-00193
PRESENT: SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

ALBERT ACKERMAN, DEFENDANT-APPELLANT.


CARA A. WALDMAN, FAIRPORT, FOR DEFENDANT-APPELLANT.

ALBERT ACKERMAN, DEFENDANT-APPELLANT PRO SE.

DONALD G. O’GEEN, DISTRICT ATTORNEY, WARSAW (VINCENT A. HEMMING OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Wyoming County Court (Mark H. Dadd,
J.), rendered December 23, 2013. The judgment convicted defendant,
upon his plea of guilty, of aggravated criminal contempt.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of aggravated criminal contempt (Penal Law § 215.52
[1]), defendant contends that County Court erred in imposing an
enhanced sentence based upon his postplea arrest for violating an
order of protection. We reject that contention. Defendant does not
dispute that he was informed, at the time of his plea, that he could
receive an enhanced sentence in the event that he committed any new
crimes or got into any “trouble,” but he contends that there was no
legitimate basis for his postplea arrest. Although defendant’s
contention survives the valid waiver of the right to appeal (see
People v O’Brien, 98 AD3d 1264, 1264, lv denied 20 NY3d 1063), and is
preserved for our review through defendant’s motion to withdraw his
plea on that ground (cf. People v Fumia, 104 AD3d 1281, 1281, lv
denied 21 NY3d 1004), we nevertheless conclude that the contention
lacks merit. It is well settled that “a court may not impose an
enhanced sentence unless ‘the court can be satisfied . . . of the
existence of a legitimate basis for the arrest,’ . . . [and] here the
existence of a legitimate basis was established by the admission of
defendant that he violated an order of protection” (People v Taylor,
286 AD2d 916, 916, lv denied 97 NY2d 688, quoting People v Outley, 80
NY2d 702, 713; see Fumia, 104 AD3d at 1281-1282). Contrary to
defendant’s contention, his violation of the order of protection was
not an “innocent mistake.” He admitted that he was well aware of the
existence of the order; that the order prohibited him from having any
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                                                         KA 14-00193

contact with the person in whose favor the order had been issued; and
that he knew that he could get in trouble for talking to that person.
Despite such knowledge, defendant admitted to repeated contact with
the person, including a joint vacation to Letchworth State Park.
Although defendant contends that “there were no physical or verbal
disputes between the parties” and that the contact was initiated by
the person in whose favor the order had been issued, those facts are
irrelevant to the issue whether he violated the clear and unambiguous
terms of the order of protection that required him to have no contact
with that person “EVEN IF INVITED” by that person. The sentence, as
enhanced by the court, is not unduly harsh or severe.

     Defendant further contends that he was improperly sentenced as a
second felony offender because the court, in determining whether a
Florida conviction could serve as a predicate felony conviction,
erroneously relied on the felony complaint instead of a superseding
indictment, and thus improperly “extended or enlarged the allegations
of the accusatory instrument” (People v Yancy, 86 NY2d 239, 247; see
People v De Aga, 74 AD3d 552, 553). Inasmuch as defendant did not
object to the introduction of the Florida felony complaint at the
second felony offender hearing, he has failed to preserve his
contention for our review (see People v Samms, 95 NY2d 52, 57; De Aga,
74 AD3d at 553). In any event, defendant and the People agree that
the record does not establish whether there was a superseding
indictment and, therefore, the “record [has not been] developed for
appellate review” (Samms, 95 NY2d at 57; cf. De Aga, 74 AD3d at 553).

     We reject defendant’s further contention that he was improperly
sentenced as a second felony offender because the predicate Florida
conviction, i.e., felony battery in the third degree (Fla Stat §
784.041), is not comparable to New York’s felony assault in the second
degree (Penal Law § 120.05 [1]) and cannot satisfy the New York test
for foreign jurisdiction predicate felonies under Penal Law § 70.06
(1) (b) (i). The Florida statute addresses two separate and distinct
offenses, only one of which requires the infliction of great bodily
harm. Subdivision (1) provides that a person commits felony battery
if he or she “[a]ctually and intentionally touches or strikes another
person against the will of the other; and . . . [c]auses great bodily
harm, permanent disability, or permanent disfigurement” (Fla Stat §
784.041 [1]). Although the term “great bodily harm” “is not
statutorily defined” (Key v State of Florida, 837 So 2d 535, 537),
that term “ ‘defines itself and means great as distinguished from
slight, trivial, minor, or moderate harm, and as such does not include
mere bruises as are likely to be inflicted in a simple assault and
battery’ ” (Coronado v State of Florida, 654 So 2d 1267, 1270).

     Subdivision (2) provides that “[a] person commits domestic
battery by strangulation if the person knowingly and intentionally . .
. impedes the normal breathing or circulation of the blood of a family
or household member or of a person with whom he or she is in a dating
relationship, so as to create a risk of or cause great bodily harm by
applying pressure on the throat or neck of the other person or by
blocking the nose or mouth of the other person” (Fla Stat § 784.041
[2] [a] [emphasis added]). Because the foreign jurisdiction’s statute
                                 -3-                           898
                                                         KA 14-00193

encompasses conduct that could be either a felony or a misdemeanor,
i.e., subdivision (2) includes merely a risk of great bodily harm, we
are authorized to review the accusatory instrument (see People v
Medina, 129 AD3d 429, 430; see generally People v Muniz, 74 NY2d 464,
468), and the accusatory instrument submitted at the hearing
established that defendant was convicted under the first subdivision.
We agree with the First Department that the term “great bodily harm”
as used in the Florida statutes is “analogous to New York’s
requirement of ‘serious physical injury,’ ” and we thus conclude that
defendant’s conviction under Florida Statutes § 784.041 (1) is
“equivalent to a conviction of assault in the second degree” and may
serve as a predicate felony conviction under Penal Law § 70.06 (1) (b)
(i) (Medina, 129 AD3d at 430).

     In his pro se supplemental brief, defendant contends that he was
denied effective assistance of counsel. To the extent that
defendant’s contentions with respect thereto survive the guilty plea
and valid waiver of the right to appeal (see People v Jackson, 85 AD3d
1697, 1699, lv denied 17 NY3d 817; People v Santos, 37 AD3d 1141,
1141, lv denied 8 NY3d 950), we conclude that his contentions lack
merit (see generally People v Ford, 86 NY2d 397, 404). We have
considered defendant’s remaining contentions in his pro se
supplemental brief and conclude that none warrants reversal or
modification of the judgment.




Entered:   November 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
