Opinion
No. 2016QN002431.
06-16-2016
The PEOPLE of the State of New York v. Daniel McGOVERN, Defendant.
Mary Hoynacki, Esq., The Legal Aid Society, for Defendant. Assistant District Attorney Vinnette K. Campbell, Queens County District Attorney's Office, for People.
Mary Hoynacki, Esq., The Legal Aid Society, for Defendant.
Assistant District Attorney Vinnette K. Campbell, Queens County District Attorney's Office, for People.
BRUNA L. DiBIASE, J.
The defendant, Daniel McGovern, is charged with a single count of Criminal Contempt in the Second Degree (Penal Law § 215.50[3] ), an A misdemeanor, for allegedly violating the terms of an order of protection. The defendant has now moved for an order, pursuant to Criminal Procedure Law (“CPL”) §§ 100.40 and 170.30, dismissing the accusatory instrument as facially insufficient because, among other reasons, it fails to set forth non-hearsay factual allegations establishing his knowledge of the order of protection, and the accompanying non-certified copy of the order contains inadmissible hearsay. The District Attorney's office has submitted a response in opposition. For the reasons set forth below, the defendant's motion to dismiss the accusatory instrument is granted.
Here, the misdemeanor complaint alleges that on or about January 12, 2016, in Queens County, New York, the defendant committed the charged offense as follows:
Deponent [detective] states that he is informed by the complainant, Karen Byrnes, that at the above mentioned date, time and place of occurrence she observed the defendant, Daniel McGovern, standing in front of said location, which is her residence.
Deponent states that he has reviewed an order of protection issued on behalf of the complainant, Karen Byrnes by the Honorable Judge Anne–Marie Jolly of the Queens Family Court, under docket number O–04923–13, on September 5, 2014 which is in effect until September 5, 2016 and which states, among other things, that the defendant, Daniel McGovern, is to stay away from the home, school, business, place of employment of the complainant, refrain from communication or any contact by mail, telephone, e-mail, voice-mail or other means with the complainant and must refrain from assault, menacing, threatening, intimidating, stalking, harassment, disorderly conduct, reckless endangerment and any other criminal offense against the complainant.
Deponent states that he has examined a copy of said order of protection and that the defendant is aware of said order of protection in that said order indicates that the defendant was present in court, informed of the issuance and contents of said order and said order was personally served on the defendant.
The complaint is accompanied by the complainant's supporting deposition in which she avers that “the facts stated in that [accusatory] instrument ... on information furnished by me are true upon my personal knowledge.” The District Attorney's office also filed a non-certified copy of an order of protection dated September 5, 2014, issued out of Queens County Family Court. The order of protection includes terms that Daniel McGovern must, inter alia, stay away from the home of Karen Byrnes, and bears “x” marks next to typed statements that read: “[p]arty against whom order was issued was advised in Court of issuance and contents of Order” and “[o]rder was personally served in Court upon party against whom order was issued.”
Pursuant to CPL § 100.40(1), there are three requirements for facial sufficiency of an information. The first two requirements are: (1) it must substantially conform to the requirements prescribed in CPL § 100.15 (pertaining to its form and content); and (2) its factual allegations, together with those of any supporting depositions, must provide reasonable cause to believe that the defendant committed the offense charged (CPL § 100.40[1] [a] & [b] ).
The third requirement mandates that non-hearsay factual allegations establish, if true, every element of the offense charged and the defendant's commission thereof (CPL § 100.40[1][c] ).This last requirement is therefore comprised of two parts. First, the factual allegations must establish every element of the crime charged against the defendant. This requirement is jurisdictional and cannot be waived (People v. Alejandro, 70 N.Y.2d 133, 136–40 [1987] ; People v. Casey, 95 N.Y.2d 354, 362–64 [2000] ). Second, such allegations must be non-hearsay. This requirement is not jurisdictional and is waived absent a timely pre-trial motion by the defendant challenging a hearsay defect (People v. Casey, 95 N.Y.2d at 362 ; People v. Netusil, 34 Misc.3d 137[A] [App Term, 2d Dept, 9th & 10th Jud Dists 2011] ).
Penal Law § 215.50(3) defines the offense of Criminal Contempt in the Second Degree as the “[i]ntentional disobedience or resistance to the lawful process or other mandate of a court[.]” Thus, the essential elements of this crime are that “a lawful order of the court was in effect and was clearly expressed, that the defendant had knowledge of its provisions ... and that the defendant intentionally disobeyed it” (People v. Labagh, 40 Misc.3d 54, 56–57 [App Term, 2d Dept, 9th & 10th Jud Dists 2013] ).
“Best practice” requires that the prosecution annex to the accusatory instrument a properly certified and authenticated copy of the underlying order of protection (see People v. Inserra, 4 NY3d 30, 33 at fn * [2004]; People v. Casey, 95 N.Y.2d at 359–60 ). However, for facial sufficiency purposes, one may not be necessary so long as the factual allegations independently establish each of the elements of the contempt charge, and such allegations are non-hearsay or would be admissible under an exception to the hearsay rule (see People v. Casey, 95 N.Y.2d at 361 [stating that the “non-hearsay requirement is met so long as the allegation would be admissible under some hearsay rule exception”] ). “Whether the allegation of an element of an offense is hearsay, rendering the information defective, is to be determined on a facial reading of the accusatory instrument” (id. at 361 ).
Here, a facial examination of the accusatory instrument does not demonstrate that the deponent detective had direct, first-hand knowledge that the defendant was aware of the order of protection and its terms; rather, it is clear that the deponent detective relied on a statement contained within the order of protection to establish that fact. The District Attorney's office argues that since the deponent detective reviewed and examined a copy of the order of protection, he had first-hand knowledge of the order. However, hearsay encompasses writings as well as speech (Prince, Richardson on Evidence § 8–101 [Farrell, 11th ed] ), and the writing upon which the deponent detective relied for its truth must meet some hearsay exception (see e.g., Republic W. Ins. Co. v. RCR Builders, Inc., 268 A.D.2d 574 [2d Dept 2000] [finding that there was no showing that the affiant had personal knowledge of the payments allegedly made, and the document upon which the affiant relied was not shown to be an admissible business record “or as anything more than hearsay”]; Jamhil Med., PC v. Allstate Ins. Co ., 35 Misc.3d 135(A) [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012] [finding that the plaintiff relied upon claim forms to establish the fact and amount of loss, but failed to demonstrate that the claim forms were admissible as an exception to the hearsay rule] ).
The Court of Appeals in People v. Casey considered the facial sufficiency of an information that charged a defendant with criminal contempt for allegedly violating an order of protection where the prosecution did not annex a copy of the order. The Court of Appeals found that the suppression hearing and trial record had revealed that the hearsay defect in the information-the “absence of an unequivocal non-hearsay allegation” establishing the defendant's receipt of the order of protection-was readily curable (95 N.Y.2d at 361 ). The Court of Appeals explained that the detective's allegation that the defendant was served with the order of protection was admissible under a hearsay rule exception because the complainant had shown him a certified copy of the order containing the defendant's signature acknowledging receipt of service (id. ). That certified copy of the order in turn would have been admissible to prove service on the defendant under the statutory or common-law public documents exception to the hearsay rule (id. at 362 ).
However, the Court of Appeals ultimately held that since the defendant failed to make a timely motion before the trial court challenging the hearsay defect in the information, the issue was unpreserved for appellate consideration (see id. at 361–67 ).
The defendant also admitted to the detective that he had been served with the order of protection. The Court of Appeals stated that the defendant's admission also provided an exception to the hearsay rule for the admissibility of the allegation that the order was served upon the defendant (id. at 362 ).
Here, in contrast, the factual allegations fail to demonstrate that the copy of the order of protection upon which the deponent detective relied for the truth of a statement contained therein regarding the defendant's knowledge is admissible as an exception to the hearsay rule. There is neither a certified copy of the order of protection filed with the accusatory instrument nor an allegation by a deponent that he or she viewed a certified copy indicating that the defendant was advised of its terms or received a copy of it in court. Accordingly, the deponent detective's allegation regarding the defendant's knowledge of the order of protection constitutes hearsay not shown to be admissible through any hearsay exception.
The District Attorney's office also argues that a certified copy of the underlying order of protection is not necessary where the accusatory instrument “contains allegations from the complainant that she knew of the orders of protection for her benefit and that the defendant had signed the orders[.]” The District Attorney's office further contends that the complainant signed a supporting deposition indicating that she adopted the factual allegations contained in the accusatory instrument as her own, and thus “the complainant had first hand knowledge of the orders of protection to her benefit and that the defendant signed the order.”
However, the supporting deposition signed by the complainant states in a limited fashion only that “the facts stated in [the accusatory] instrument ... on information furnished by me are true upon my personal knowledge” (emphasis added). A facial examination of the accusatory instrument reveals that this encompasses only that portion which states that the “[deponent] is informed by the complainant ... that ... she observed the defendant ... standing in front of [the] location, which is her residence.” There are no factual allegations permitting an inference that the complainant had first-hand knowledge either of the issuance of the order of protection and its terms or that the defendant signed the order (cf. People v. Casey, 95 N.Y.2d at 360 ).
Additionally, contrary to the District Attorney's assertions, the copy of the order of protection filed with the accusatory instrument does not even contain the defendant's signature.
This constitutes the decision and order of the Court.