Appeal from a judgment of the Justice Court of the Town of Ramapo, Rockland County (Arnold P. Etelson, J.), rendered May 5, 2011. The judgment convicted defendant, after a nonjury trial, of attempted assault in the third degree and harassment in the second degree.

ORDERED that the judgment of conviction is affirmed.

Defendant was initially charged, by misdemeanor information, with attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]). Immediately prior to the commencement of a nonjury trial, the People filed a superseding prosecutor's information which, in addition to charging defendant with attempted assault in the third degree, also charged him with harassment in the second degree (Penal Law § 240.26 [1]). After the trial, defendant was convicted of both counts.

Defendant argues that the Justice Court lost personal jurisdiction over him as a result of the procedures followed by the court upon the filing of the superseding prosecutor's information. Defendant claims that the prosecutor stipulated to dismiss the misdemeanor information (cf. CPL 100.50 [2]), divesting the court of jurisdiction, and that an arraignment on the superseding prosecutor's information would have conferred personal jurisdiction over him (see CPL 1.20 [9]), but the Justice Court failed to conduct one. Thus, defendant argues, the judgment of conviction [*2]should be reversed for lack of personal jurisdiction.

Even if, as defendant argues, the Justice Court lost jurisdiction upon a dismissal of the misdemeanor information (cf. People v Golston, 13 AD3d 887, 889 [2004]), it is generally accepted that by appearing in court and participating in court proceedings, a defendant submits to the court's jurisdiction (see People v Hallenbeck, 81 AD3d 1077, 1078-1079 [2011]; People v Golston, 13 AD3d at 889; People v Lavidas, 36 Misc 3d 160[A], 2012 NY Slip Op 51827[U] [App Term, 9th & 10th Jud Dists 2012]; People v Carter, 33 Misc 3d 14 [App Term, 9th & 10th Jud Dists 2011], lv denied 17 NY3d 902 [2011]). As defendant participated in the trial, he cannot now complain that the Justice Court lacked jurisdiction over his person by its failure to arraign him on the superseding prosecutor's information.

Defendant further contends that the intent element was not properly charged for either attempted assault in the third degree or harassment in the second degree. To be facially sufficient, a prosecutor's information must contain, among other things, an allegation of "the offense or offenses charged" and set forth "a plain and concise statement of the conduct constituting each such offense" (CPL 100.35; see People v Komizorov, 34 Misc 3d 154[A], 2012 NY Slip Op 50382[U] [App Term, 1st Dept 2012]). Where the prosecutor's information is filed pursuant to CPL 100.50 (2), the original information underlying it must also be facially sufficient (see CPL 170.35 [3] [b]). A misdemeanor information is jurisdictionally defective where it fails to allege facts of an evidentiary nature establishing, if true, each element of the offense charged and the defendant's commission thereof (CPL 100.15 [3]; 100.40 [1]; see People v Kalin, 12 NY3d 225, 228-229 [2009]; People v Alejandro, 70 NY2d 133 [1987]), because the factual allegations in an information must give a defendant sufficient notice to prepare a defense and prevent him from being tried twice for the same offense (see e.g. People v Dreyden, 15 NY3d 100, 103 [2010]).

Both the original misdemeanor information and the superseding prosecutor's information allege that defendant purposefully, and with force, used his shoulder to bump into the complainant in an attempt to knock her down the stairs. As an intent to cause physical injury can be inferred from these allegations, both the underlying and superseding accusatory instruments are facially sufficient to charge that element of attempted assault in the third degree (see People v Prevete, 10 Misc 3d 78, 79-80 [App Term, 9th & 10th Jud Dists 2005]; People v Leiner, NYLJ, Oct. 15, 1997 at 34, col 5 [App Term, 2d & 11th Jud Dists 1997]).

The prosecutor's information also sets forth a plain and concise statement of the conduct that constituted harassment in the second degree, and further refers specifically to Penal Law § 240.26 (1). It is therefore facially sufficient as to that charge as well (see CPL 100.35; People v Komizorov, 34 Misc 3d 154[A], 2012 NY Slip Op 50382[U]). "[W]here jurisdictional sufficiency is concerned, a prosecutor's information will be tested by the same standards as an indictment" (Preiser, Practice Commentary, McKinney's Cons Laws of NY, Book 11A, CPL 100.35, at 384-385). "The incorporation by specific reference to the statute operates without more to constitute allegations of all the elements of the crime required by explicit provision of the statute itself or by judicial gloss overlaid thereon, if any, for conviction under that statute" (People v Cohen, 52 NY2d 584, 586 [1981]). Here, in addition to referencing the statute, the prosecutor's information also incorporates intent language from the statute, alleging that defendant acted with the "intent to harass, annoy or alarm another person." Thus, although the [*3]prosecutor's information later alleges that defendant acted with the intent to cause physical injury, rather than the intent to harass, annoy or alarm, this statement is extraneous and does not render the information jurisdictionally defective.

Finally, defendant argues that he should not have been convicted of both attempted assault in the third degree and harassment in the second degree because harassment in the second degree is a lesser included offense of attempted assault in the third degree. This argument fails, as the Court of Appeals has held that harassment is not a lesser included offense of assault, noting that harassment requires proof of an intent to harass, annoy or alarm, an element that is not required to establish assault (People v Moyer, 27 NY2d 252 [1970]). The foregoing reasoning must extend to the crime involved herein, attempted assault.

Accordingly, the judgment of conviction is affirmed.

Nicolai, P.J., Iannacci and Tolbert, JJ., concur.
Decision Date: July 08, 2013