The People &c.,
2002 NY Int. 108
The order of the Appellate Division should be affirmed.
A temporary order of protection prohibited defendant
from making contact with specified persons who had complained
that he was harassing them. Despite the order, defendant left a
series of threatening messages on the voicemail of one of those
persons. Defendant was then indicted on one count of criminal
contempt, first degree (Penal Law § 215.51[b][iv]) and four
counts of criminal contempt, second degree (Penal Law §
215.50). Each of the second degree counts recited that
An indictment is jurisdictionally defective only if it
does not effectively charge the defendant with the commission of
a particular crime -- for instance, if it fails to allege that
the defendant committed acts constituting every material element
of the crime charged (People v Iannone, , 45 NY2d 589, 600 1978]).
The incorporation by specific reference to the statute operates
without more to constitute allegations of all the elements of the
crime (People v Ray, , 71 NY2d 849, 850 ; People v Motley, , 69 NY2d 870, 872 ; People v Cohen, , 52 NY2d 584, 586 1981]).
Defendant attempts to limit the rule of Cohen and its progeny by
Accordingly, the indictment is not jurisdictionally defective. Absent a timely motion to dismiss, we have no occasion to consider whether statutory mandates beyond the jurisdictional minimum required the indictment to recite that defendant's calls did not arise in a case "involving or growing out of labor disputes" (see Criminal Procedure Law § 200.50[a]; Penal Law § 215.50), or whether this labor dispute exemption is an exception or a proviso (cf. People v Kirkham, 273 AD2d 509 ). Defendant's remaining contention is without merit.