v.

LIAUTAUD JEAN-MARY, Appellant.

Submitted By: Judah Serfaty (counsel for the appellant); Peter Shapiro (counsel for the respondent)

Judgment Reversed in part & Affirmed in part: Andrew J. DiPaola, P.J.; Thomas M. Stark & Angelo J. Ingrassia, JJ.

DECISION OF THE COURT

<SM-1>

Appeal by defendant from judgments of the District Court, Nassau County (Feuerstein, J. at jury trial and sentence) rendered on May 14, 1993, and convicting him of three counts of aggravated harassment in the second degree, one count of assault in the third degree and three counts of criminal contempt in the second degree and imposing sentence.

Judgments convicting defendant of aggravated harassment in the second degree and assault in the third degree unanimously affirmed.

Judgments convicting defendant of criminal contempt in the second degree unanimously reversed in the law and accusatory instruments dismissed.

<SM-2> Regarding the convictions of assault in the third degree and aggravated harassment in the second degree, it was error to strike the testimony of Beverly Trigg as to the January 6, 1993 incident while permitting the jury to consider that of complainant regarding the same incident. However, in view of the overwhelming evidence of guilt, any error was harmless. We also find that the charges of assault in the third degree and aggravated harassment were properly consolidated for trial (CPL 100.45, 200.20[2]) and that the computer documents and the flyer were properly admitted into evidence.

The accusatory instruments charging defendant with criminal contempt in the second degree alleged that he violated a temporary order of protection by committing acts of aggravated harassment in the second degree against the complainant. The instruments, however, fail to allege facts that establish, if believed, that defendant had knowledge of the order at the time he committed the acts charged (Penal Law § 215.50[3]). There were no allegations that defendant was served with the order or that he was present when it was issued (see, CPL 510.13[6], cf. Yorktown Cent School Dist No. 2 v. Yorktown Congress of Teachers, 42 AD2d 422). Nor may the fact that defendant was <SM-3> charged in succeeding instrument with violating the order supply circumstantial evidence establishing the requisite element of knowledge, since they contain no indication as to when defendant became aware of their existence. The convictions for criminal contempt, therefore, cannot stand.

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