Opinion
2015–1916 K CR
01-19-2018
The PEOPLE of the State of New York, Respondent, v. Andy ROMAN, Also Known as Anthony Roman, Appellant.
New York City Legal Aid Society (Shahar Azoulay, Esq.), for appellant. Kings County District Attorney (Leonard Joblove, Seth M. Lieberman and James T. Castle of counsel), for respondent.
New York City Legal Aid Society (Shahar Azoulay, Esq.), for appellant.
Kings County District Attorney (Leonard Joblove, Seth M. Lieberman and James T. Castle of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, DAVID ELLIOT, JJ.
ORDERED that the judgment of conviction is reversed, on the law, and, as a matter of discretion in the interest of justice, the accusatory instrument is dismissed.
In an accusatory instrument, defendant was charged with, among other things, criminal contempt in the second degree ( Penal Law § 215.50 [3 ] ). The accusatory instrument alleged, among other things, that, on or about July 1, 2015, defendant violated an order of protection that had been issued in Family Court on April 22, 2015, which was in effect until October 21, 2015. Insofar as relevant to this appeal, the accusatory instrument further alleged that "defendant stated in sum and substance that defendant is aware that defendant has an order of protection against defendant and that defendant viewed the first page of said order of protection." At a plea proceeding, defendant waived prosecution by information and pleaded guilty to the count of criminal contempt in the second degree in satisfaction of all the charges.
On appeal, defendant contends that so much of the accusatory instrument as charged him with criminal contempt in the second degree is jurisdictionally defective.
At the outset, we note that, as defendant's objection to the facial sufficiency of the accusatory instrument raises a jurisdictional issue, it was not forfeited upon his plea of guilty (see People v. Dreyden , 15 NY3d 100, 103 [2010] ; People v. Lucas , 11 NY3d 218, 220 [2008] ; People v. Konieczny , 2 NY3d 569, 573 [2004] ). Since defendant, through his counsel, expressly waived his right to be prosecuted by information, the accusatory instrument's legal sufficiency must be evaluated under the standards which govern that of a misdemeanor complaint (see People v. Dumay , 23 NY3d 518, 524 [2014] ), which is sufficient on its face when it alleges facts of an evidentiary character supporting or tending to support the charge (see CPL 100.15 [3 ] ) and provides reasonable cause to believe that the defendant committed the offense charged (see CPL 100.40 [4 ] [b]; People v. Dumas , 68 NY2d 729, 731 [1986] ). Moreover, so long as the factual allegations of an accusatory instrument provide an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading (see Dreyden , 15 NY3d at 103 ; People v. Kalin , 12 NY3d 225, 231–232 [2009] ; Konieczny , 2 NY3d at 576 ; People v. Casey , 95 NY2d 354, 360 [2000] ).
Penal Law § 215.50 (3) : provides that:
"A person is guilty of criminal contempt in the second degree when he engages in any of the following conduct:
3. Intentional disobedience or resistance to the lawful process or other mandate of a court ..."
An order of protection is a mandate of the court (see People v. Halper , 209 AD2d 637 [1994] ). The essential elements of the crime of criminal contempt in the second degree, as charged herein, are that a lawful order of protection was in effect, that defendant had knowledge of the order of protection, and that defendant intentionally disobeyed it (see Matter of McCormick v. Axelrod , 59 NY2d 574, 583 [1983] ).
The factual portions of the accusatory instrument and supporting deposition fail to contain any allegation that defendant had been served with the April 22, 2015 order of protection, that he had been present in court when it had been issued or that he had signed that order of protection (see People v. Inserra , 4 NY3d 30, 33 [2004] ). We note that a copy of the order of protection was not annexed to the accusatory instrument (see Konieczny , 2 NY3d 569 ). While the accusatory instrument sets forth that "defendant stated in sum and substance that defendant is aware that defendant [sic] has an order of protection against defendant," it fails to allege that defendant had knowledge of the order of protection that had been issued by the Family Court in favor of the victim on April 22, 2015 and against him, which is the order he is being charged with violating. Even if it be assumed that the allegation in the accusatory instrument—to the effect that defendant stated that he was aware of "an order of protection" and had viewed the first page of said order of protection" (emphasis added)—was referring to the April 22, 2015 Family Court order previously mentioned in the accusatory instrument, the accusatory instrument failed to allege that defendant had been aware of it and viewed it prior to the date of the offense involved herein. There was, thus, no allegation from which it can be inferred that defendant had knowledge of the April 22, 2015 order of protection prior to July 1, 2015. This constituted an omission of a factual allegation establishing an element of the offense charged. Consequently, so much of the accusatory instrument as charged defendant with criminal contempt in the second degree is dismissed as jurisdictionally defective (see Penal Law § 215.50 [3 ]; People v. Inserra , 4 NY3d at 33 ; People v. Carthew , 19 Misc 3d 138[A], 2008 NY Slip Op 50879[U] [App Term, 2d Dept, 9th and 10th Jud Dists 2008] ).
Instead of reinstating the remainder of the accusatory instrument to its prepleading status (see CPL 470.55 [2 ] ), we dismiss it, as a matter of discretion in the interest of justice, since defendant has completed his sentence and no penological purpose would be served by restoring the criminal action (see People v. Vicuna, 53 Misc 3d 153[A], 2016 NY Slip Op 51734[U] [App Term, 2d Dept, 2d, 11th and 13th Jud Dists 2016] ).
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
PESCE, P.J., WESTON and ELLIOT, JJ., concur.