v.

RAYMOND WHITE, Appellant.

Argued By: Tammy Feman (counsel for the appellant); Delores S. Heredia (counsel for the respondent)

Conviction Reversed & Dismissed: Andrew J. DiPaola, P.J.; Marquette L. Floyd & Louis C. Palella, JJ.

DECISION OF THE COURT

<SM-1>

Appeal by defendant from a judgment of the District Court of Nassau County (R. LaPera, J.) rendered on February 22, 1996 convicting him upon jury verdicts of one count of criminal contempt in the second degree (Penal Law § 215.50[3]) and one count of assault in the third degree (Penal Law § 120.00[1]) and sentencing him on the former conviction to a conditional discharge with a fine and on the latter conviction to 10 days' incarceration.

Judgment of conviction unanimously reversed on the law and as a matter of discretion in the interest of justice, fine, if paid, remitted, and accusatory instrument dismissed. <SM-2>

As the People concede herein, the accusatory instrument was jurisdictionally defective with respect to the count of criminal contempt, since it failed to contain factual allegations establishing, if true, the requisite knowledge by defendant of the order of protection (Penal Law § 215.50[3]; People v. Jean-Mary, NYLJ, March 21, 1995 [App Term, 9th & 10th Jud Dists]).

Defendant was denied a fair trial by, inter alia, prosecutorial goading and comments to the effect that he was calling the police officers who had testified on behalf of the People "liars" (see, People v. Overlee, 236 AD2d 133, 138). While defendant's testimony was in conflict with that of the officers in some respects, such discrepancies were tangential to the occurrence of the subject incident itself, and the testimony was "susceptible to the suggestion that the witnesses spoke out of mistake or hazy recollection" (ibid., at 139). Inasmuch as defendant has already served a term of incarceration on the assault charge, however, said charge is dismissed rather than a new trial being ordered thereon (see, People v. West, 56 NY2d 637; People v. Burwell, 53 NY2d 849, 851).

In view of the instant dispositions, the order of protection is no longer in existence.

__