v.

THOMAS GALVIN, Appellant.

Argued By: Jennifer Ginsburgh (counsel for the appellant); Delores Heredia (counsel for the respondent)

Judgment Reversed / Accusatory Instruments Dismissed: Andrew J. DiPaola, P.J.; Thomas M. Stark & Daniel F. Luciano, JJ.

DECISION OF THE COURT

<SM-1>

Appeal by defendant from judgments of the District Court, Nassau County (Davis, J. Trial and Sentence) rendered upon a jury verdict finding him guilty of criminal contempt in the second degree and of aggravated harassment in the second degree and imposing sentences.

Judgment convicting defendant of criminal contempt in the second degree unanimously reversed on the law and accusatory instrument dismissed.

Judgment convicting defendant of aggravated harassment in the second degree unanimously reversed on the law and facts and accusatory instrument dismissed.

<SM-2> The accusatory instrument charging defendant with criminal contempt in the second degree alleged that he intentionally violated an order of protection by being at a stated residence at a certain date and time. The instrument, however, failed to allege facts that establish that defendant had knowledge of the order at the time he committed the acts charged (People v Jean-Mary, NYLJ March 21, 1995, App Term, 9th & 10th Jud Dists) and therefore the conviction cannot stand.

We further find that the refusal of the court to place the letters written by complainant to defendant into evidence, either by reading them to the jury or by having the jury read them, denied defendant a fair trial (see, People v Ayrhart, 101 AD2d 703, 704; see also, Olden v Kentucky, 488 US 227; Delaware v Van Arsdall, 475 US 673, 680). Inasmuch as defendant has served his sentence, we do not order a new trial on the charge of aggravated harassment but dismiss the accusatory instrument (see, People v Flynn, 79 NY2d 879; People v Allen, 39 NY2d 916).

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