Opinion
14-227438
04-17-2014
People of the State of New York v. Brian M. McArdle, Defendant
P. David Soares, Esq. Jennifer McCanney, Esq. Assistant District Attorney Albany County District Attorney Albany City Court - Criminal Part O'Connell & Aronowitz Stephen R. Coffey, Esq. Attorney for Defendant
P. David Soares, Esq.
Jennifer McCanney, Esq.
Assistant District Attorney
Albany County District Attorney
Albany City Court - Criminal Part
O'Connell & Aronowitz
Stephen R. Coffey, Esq.
Attorney for Defendant
, J.
Defendant, Brian M. McArdle, was arraigned on a violation of probation on April 9, 2014. A Declaration of Delinquency was issued by this Court on March 26, 2014. The People filed an addendum to the violation of probation on April 11, 2014. The charges stem from a three-year probation sentence imposed on May 23, 2013. A violation of probation ("VOP") hearing was scheduled and held on April 14, 2014. At the hearing, the People had the burden to prove the allegations set forth in the addendum to the violation of probation filed on April 11, 2014, that defendant "violated a no contact order of protection on March 29, 2014 by making an obscene gesture toward the protected person, Sarah Tierney." The matter now comes before the Court for a decision.
FINDINGS OF FACT
The Court makes the following findings of fact and conclusions of law based upon the evidence presented at the hearing. James Maron, defendant's probation officer, testified for the People. He is one of two probation officers in Albany County that are assigned to adult defendant's with disabilities related to their mental health. He was assigned to defendant's case on June 18, 2013 and had his initial meeting with defendant on June 20, 2013. At that time, Mr. Maron reviewed the orders and conditions of defendant's probation with him to ensure that defendant understood them. He and defendant signed the order and conditions form on that day, indicating that defendant understood them. Paragraph number 13 of the order and conditions states as follows: "[a]bide by all active Orders of Protection issued by any Court."
On March 1, 2014, the Hon. William A. Carter issued a temporary order of protection against defendant and in favor of Sarah Tierney, with an expiration date of September 2, 2014. This order of protection directed defendant to "stay away from" Sarah Tierney (no contact or third party contact) and refrain from assault, stalking ... intimidation, threats, or any criminal offense against Sarah Tierney. There was an apparent attempt to check a third box on the order of protection form. However, no additional box was checked. While it appears that it was the Court's intent to check the box numbered "14" (refrain from communication or any other contact by mail, telephone, e-mail, voicemail or other electronic or any other means with Sarah Tierney), this box was not actually checked. In fact, the court exhibit (People's Exhibit No. 3) shows that the check mark is "floating" in front of and between the box with an "F" in front of it and the box with a "14" in front of it.
Probation Officer Maron met with defendant on a weekly or bi-weekly basis since their initial meeting. In these meetings Mr. Maron advised defendant that he should refrain from giving people "the finger" (raising his middle finger at them), as this would only cause further problems in his neighborhood. However, Mr. Maron did not recall ever informing defendant that giving his neighbors (and specifically Sarah Tierney) the finger could result in a violation of probation and/or a violation of the order of protection issued against him. Notably, Mr. Maron testified that defendant has been compliant with his probation. Mr. Maron stated that a violation of probation was issued against defendant because he was arrested for criminal contempt in the second degree for violating the order of protection by communicating with Sarah Tierney by using his middle finger (giving her the finger).
James Tierney next testified for the People, followed by Sarah Tierney (his 10 year old daughter). On Saturday, March 29, 2014 around 3:00 pm, Mr. Tierney and his daughter Sarah were walking from their home (located at 158 S. Pine Avenue in Albany) to Sarah's friend's house on Mercer Street for a play date. In order to get to the friend's house, the two had to walk past defendant's house (located at 125 S. Pine Avenue). The two were walking on the same side of the street that they lived on (the opposite side of the street as the defendant) when they passed by defendant's house. Mr. Tierney was walking on the right side of Sarah, in between Sarah and the street. As they passed by defendant's house, Sarah told her father that she saw defendant standing inside his house looking at them from a window, leaning against the window, and with his left hand against his chest, giving them "the finger" (lifting his middle finger at them). Mr. Tierney did not see defendant himself. He simply told his daughter to keep walking. They were about 70 feet away from defendant at the time Sarah told this to her father.
The two continued walking up S. Pine Avenue until they reached Mercer Street. Next they turned right onto Mercer, passing by the corner house on Mercer and S. Pine Avenue (the house directly in front of defendant's house). After passing by the corner house, Sarah looked back at defendant's house and saw defendant leaning out his back door and looking in their direction. Mr. Tierney also witnessed defendant this time. They were about 90 feet from defendant's house at the time they witnessed defendant looking at them from his back door. On Wednesday, April 2, 2014, Mr. Tierney filed a report with the Albany Police Department regarding this incident. Defendant was arraigned on the charge of criminal contempt in the second degree, a violation of Penal Law 215.50(3), and on the alleged violation of probation, on April 9, 2014, at the time he was due to be in Court on another matter.
Defendant then testified for the defense. He stated that he did not give the finger (raise his middle finger) toward Sarah.
CONCLUSIONS OF LAW
A hearing to determine whether a defendant violated the conditions of his or her probation is governed by CPL §410.70. The standard of proof at such a hearing is whether the violation is proven by a preponderance of the evidence [see CPL §410.70(3); People v. Torres, 5 AD3d 1097 (4th Dept 2004)] and the court may receive any relevant evidence not legally privileged [CPL §410.70(3)]. In this case, the Court finds that the People did not sustain their burden of proof with respect to the violation of probation in that they failed to prove that defendant intentionally disobeyed the order of protection by projecting the non-verbal communication of displaying his left middle finger to the victim. While the People did prove to this Court that Sarah Tierney thought she saw defendant give the finger to her and her father, the Court finds that it was not proven by a preponderance of the evidence at the hearing that defendant actually violated the order of protection at issue.
The Court notes that the order of protection dated March 1, 2014 was not clear in directing defendant to refrain from direct or non-verbal communication with Sarah Tierney. While the blank line following this section of the protective order was filled out with the name of Sarah Tierney, the box in front of this section of the order was not clearly marked as being an applicable section of the order with which defendant must comply. Where an individual's liberty is at stake for a violation of an order of protection, nothing short of crystal clear document terms may serve as a basis for a finding of intentional disobedience.
Finally, the Court wishes to expound upon defendant's cognitive and developmental disabilities as outlined in the pre-plea investigation report filed by the probation department on April 24, 2013. The report states that defendant has been diagnosed with borderline intellectual functioning, speech and language delay, Tourette syndrome, generalized anxiety disorder with OCD features, learning disorder, ADHD, and intermittent explosive disorder.
The Court notes that while "a defendant's mental condition can be a relevant factor [to consider] in a probation violation and revocation proceeding," a defendant's mental disease or defect cannot be raised as an affirmative defense under Penal Law §40.15. People v. Recor, 87 NY2d 933, 934 (1996) (citations omitted). This is because "such a [probation] violation is not an "offense" triggering a right to present a formal Penal Law insanity defense." Id at 934 (citations omitted).However, it is the opinion of this Court that defendant's numerous disabilities impact his ability to understand the phrase, "[r]efrain from communication" with Sarah Tierney. In order for the People to prove that defendant violated Penal Law §215.50(3), they would have to prove that defendant intentionally disobeyed the order of protection dated March 1, 2014. See Penal Law §215.50(3). The facts set forth in the information which charges defendant with a violation of Penal Law §215.50(3) allege that defendant violated the order of protection by "projecting a non-verbal communication towards the victim" by "exhibiting his left middle finger towards the victim." Therefore, the People would have to prove that defendant understood that his alleged act of "exhibiting his left middle finger towards the victim" was a form of communication which violated the terms of the protective order. It is the finding of this Court that the People failed to establish, by a preponderance of the evidence, that the defendant fully understood the term "communication" to include a non-verbal act, such as giving someone the finger or waving to someone.
As a general matter, this Court would not condone or excuse misconduct directed at a ten year old child. However, that is not the issue for decision. Based upon the record before me, I conclude that the People failed to sustain their burden of proof with respect to the violation of probation in that they failed to establish that defendant committed the allegations set forth in the addendum filed on April 11, 2014. Accordingly, the violation of probation is dismissed.
All motions not granted herein are hereby denied. This opinion shall constitute the Decision and Order of the Court.
ENTER.SO ORDERED.
This 17th day of April, 2014
Albany, New York
David J. Wukitsch
Acting Albany City Court Judge