JOHN COLANGELO, J.

This case revolves around a temporary order of protection issued in the context of a Family Court proceeding under Sections 240 and 252 of the Domestic Relations Law (the "TOP"). The TOP was issued by the Hon. Fred L. Shapiro on June 12, 2003 with an expiration date of September 24, 2003 and later extended to January 30, 2004 by the Hon. Bruce E. Tolbert. Defendant does not deny receiving the TOP, originally and as extended. The principal protected parties under the TOP — and the subjects of its strict stay away provisions — are Defendant's wife, Ruthanne Pucilowski, and the children of Defendant and Mrs. Pucilowski. Paragraph 99 of the TOP further provides that Defendant must "[o]bserve such other conditions as are necessary to further the purposes of protection" including that Defendant is "not to contact co-workers, friends and/or neighbors of the plaintiff, Ruthanne Pucilowski." No such "co-workers, friends and/or neighbors" are identified by name in the TOP. It is this "no contact" provision that is at the heart of this case. The misdemeanor information alleges that Defendant violated the TOP when, on January 26, 2004, he "did contact a co-worker, namely, Florence-Michelle Daw [sic], and did speak about a pending Family Court case involving the Defendant and his wife Ruthanne Pucilowski." As a result, Defendant was charged with Criminal Contempt in the Second Degree.

A non-jury trial was held on May 12, 2004. The People called two witnesses: Defendant's wife, Ruthanne Pucilowski, whose testimony consisted, in essence, of her identification of Florence Dawz as her co-worker and, for the past two years, her subordinate at Westchester County's Technology Department, in the county offices located at 148 Martine Avenue, White Plains, New York. Defendant is also employed by Westchester County — in the Department of Public Works — and at all relevant times, his office was also located at 148 Martine Avenue. The People also called Florence Dawz. Defendant testified on his own behalf, and was the sole witness for the defense.

As the testimony at trial revealed, it is undisputed that Ms. Dawz, a Westchester County employee for the past seventeen years, was a co-worker of Ruthanne Pucilowski as of January 26, 2004; for the approximately two years preceding the date of the incident, Mrs. Pucilowski had been, and continues to be, her superior. It is also undisputed that on least two occasions prior to January 26, 2004, Mrs. Dawz had in person conversations with Defendant to discuss her, at those times, precarious employment position. One such discussion took place after the TOP was in effect. Although the precise details of these pre-January 26 communications are disputed, this much is clear: both conversations were brief, centered on Mrs. Dawz's employment situation, and resulted from chance meetings in the building where both Mrs. Dawz and Defendant worked. In addition, Mrs. Dawz was a willing participant in both such conversations.

On January 26, 2004, a third chance meeting between Mrs. Dawz and Defendant occurred, in the lobby of 148 Martine Avenue. This encounter and conversation of no more than several minutes duration began when Mrs. Dawz and Defendant met by "happenstance" in the lobby at 148 Martine Avenue at lunch hour, continued while they walked across the street to a restaurant, and ended at the restaurant's door. Although the accounts diverge as to whether they met when the doors of two elevators containing each opened simultaneously in the lobby, or whether Defendant emerged from a stairway, the significant agreed upon fact is that this encounter was not premeditated or pre-arranged in any way; it just happened. And while both Mrs. Dawz and Defendant claim that the other party initiated the conversation, Defendant concedes that he did not immediately break off the contact.

In essence, Mrs. Dawz's version of the conversation is that Defendant disparaged his wife, sometimes using colorful language to do so; Defendant's version focused on his inquiry into Mrs. Dawz's employment situation, and how his wife may be affecting it. While the two versions of the content of the conversation do differ, neither party testified that Defendant physically restrained Mrs. Dawz or otherwise forced her to engage in conversation, and neither party testified to any statement that could be construed as a threat by Defendant to be delivered to his wife, the principal protected party under the TOP.

The ultimate issue here is whether the People have proven, beyond a reasonable doubt, that Defendant's participation in such a conversation that occurred after a chance meeting with a person other than the principal protected party under the TOP amounted to an "[i]ntentional disobedience" of the TOP pursuant to Penal Law § 215.50(3). For the reasons set forth below, the Court finds that it does not, and that the People have failed to sustain their burden of proof.

DISCUSSION AND CONCLUSION

The hallmark of an order of protection — particularly stay-away and not to contact provisions — is to make unlawful conduct that would otherwise be lawful. For this reason, the courts recognize that in order to find that a defendant has violated such an aspect of an order of protection, the proscribed conduct must be carefully and clearly delineated by the Court. Only by so doing can a Court fairly apprise a party to conform his conduct — which, but for the order of protection, would not bear the taint of illegality — to the order's terms. Ambiguity in the order insofar as describing what a defendant is required to do or, more to the point, not do, should be resolved in favor of the defendant when such conduct would not run afoul of any other criminal statute.

For example, in People v. Gunatilaka, 156 Misc 2d 958, 962-963 (Crim.Ct., NY Co. 1993), the Court dismissed the charge of Criminal Contempt in the Second Degree against a defendant who was alleged to have violated an order of protection by walking back and forth on a public street in front of the protected party's place of business. Finding that, among other things, the order of protection did not sufficiently put defendant "on notice" that such acts were prohibited, the Court dismissed the criminal contempt charge. As the Court stated:

"In order to find that contempt has occurred in a given case, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect."( Matter of McCormick v. Axelrod, 59 NY2d 574, 583; see also, People v. Forman, 145 Misc 2d 115 [Crim Ct, NY County 1989].) When the terms of an order are vague and indefinite as to what actions are required or prohibited to a party, he or she may not be adjudged in criminal contempt for failing to take the required action or for taking the prohibited action.

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As alleged there is absolutely nothing about defendant's conduct that can be construed as harassing, threatening or intimidating, particularly where there is no showing that the parties were even visible to one another. There is also nothing in the complaint to support a finding that the defendant engaged in the conduct alleged for purposes of harassing, threatening, or intimidating the protected party. Moreover, there is nothing in the order to have put the defendant on notice that the prohibition against such acts included walking back and forth on a public street near to where the complainant worked." (Emphasis supplied.)

See also, e.g., Matter of Holtzman v. Beatty, 97 A.D.2d 79, 82 (2d Dept. 1983) ["The district attorney argues . . . that the order should be construed as though it contained a direction to give handwriting exemplars, because that was the belief of all of the parties. This contention ignores `[t]he long standing, salutary rule in contempt cases . . . that ambiguities and omissions in orders redound to the benefit of the person charged with contempt.'"]; People v. Hogan, 172 Misc 2d 279, 285-286 (Crim. Co., Kings Co. 1997), aff'd, 181 Misc.2d 748 (App. Term, 2d Dept. 1998) [The Court dismissed a criminal contempt charge against defendant for "harassing" the protected party — his wife — by cursing at her because such conduct was not specifically proscribed in the order of protection: "If a court wants to prohibit a defendant from using swear words when arguing with his spouse, it may explicitly forbid such conduct in the order of protection . . . But, even if an order of protection could permissibly have been drafted to cover Mr. Hogan's calling his spouse a `f____ing bitch and a whore,' the order of protection which he was issued did not do so. The contempt charge thus cannot be made out since the conduct alleged was not in violation of a specific order of the court."]; People v. Gonzalez, 200 A.D. 2d 759, 760 (2d Dept. 1994) [Reversing a jury verdict convicting defendant of criminal contempt, the Second Department held that "[v]iewing the evidence in the light most favorable to the People . . . we find that it was legally insufficient to establish that the defendant violated the order of protection by `going to' his daughter's home. Rather, the evidence only established that the defendant walked by his daughter's home while walking in the direction of his home."]

In the instant case, paragraph 99 of the TOP is ambiguous in several respects. For one, Defendant was ordered to have no contact not with a particular named individual or individuals, but with several classes of people — the "co-workers, friends and/or neighbors" of the principal protected party, Defendant's wife. More importantly, the TOP does not define — and there is no evidence in the record that the Court that signed the TOP or its extension did so in open court — what precisely the phrase "not to contact" means. Unlike the more typical "stay away" provision — applied in the TOP to Mrs. Pucilowski — the court-improvised "not to contact" prohibition is ambiguous as to its meaning and scope. Does it proscribe physical contact, but allow occasional verbal communication — particularly when Mrs. Pucilowski's co-workers are all located in the County office building where Defendant works? Does it mean that Defendant may not initiate contact with members of the listed classes, but may verbally respond if spoken to or approached — not an unreasonable interpretation in view of the fact that, as Mrs. Pucilowski's husband and as someone who worked in the same building as his wife, Defendant surely knows, at least on sight, several "co-workers, friends and/or neighbors" of his wife and they know him. Does it mean that if a member of a protected class speaks to Defendant, then Defendant must refrain from responding, and immediately break off the encounter? Does it mean that if there is a chance meeting between Defendant and a protected party, then Defendant must immediately walk in the other direction without exchanging social pleasantries? Paragraph 99 is unclear.

This much is clear, however: since the more straightforward stay away provision and its unequivocal language were not applied to these three classes of people, the ineluctable conclusion is that the "not to contact" prohibition used in Paragraph 99 of the TOP means something less than a full, more precise and more stringent "stay away" directive. In resolving any ambiguity, the specific language of the TOP must first be examined to see what it says and, of equal importance, what it does not say. Paragraph 99 of the TOP states that Defendant is "not to contact" members of three classes of individuals related in some manner to Defendant's wife. It does not say that Defendant is to have no contact under any circumstances with those individuals. In other words, Paragraph 99 does not prohibit any contact whatsoever as, arguably, the typical stay away provision does. Rather, it is a direction to Defendant that under pain of criminal contempt, he is not to take the affirmative act out of contacting any individual in the in the named classes. The fact that the TOP does contain a stay away provision — applicable to Mrs. Pucilowski and her children — and the issuing Court chose not to include the classes named in Paragraph 99 in that clause impliedly indicates that the Court intended the "not to contact" provision as something less than a "no contact" or full stay away directive. When the language of Paragraph 99 is so parsed and viewed through the prism of the applicable legal principle that in these types of cases, any ambiguities in an order of protection must be resolved in a defendant's favor, then it is clear that Defendant's conduct herein does not amount to a violation of the TOP under the facts adduced at trial.

In the instant case, the Court finds that Defendant met Mrs. Dawz by chance in the lobby of 148 Martine Avenue — where they both work as County employees. Neither the People nor Defendant maintain that the meeting was pre-arranged in any way. Moreover, in view of the past amicable relationship between Mrs. Dawz and Defendant, and their prior conversations — similarly initiated — regarding Mrs. Dawz's job situation, it is at least equally likely that Mrs. Dawz initiated their brief conversation on January 26. In any event, the People did not prove otherwise beyond a reasonable doubt. Defendant and Mrs. Dawz then proceeded to have a conversation lasting no more than a few minutes — the time it takes to leave the Michaelian Building and walk across the street.

True, this contact between the two, once initiated, was not immediately terminated by Defendant. Nor was Defendant, under the facts adduced at trial, required to do so under penalty of criminal sanction. Since the Court's TOP directive to Defendant "not to contact" several classes of people including Mrs. Pucilowski's co-workers, forbids something less than the explicit stay away provision applicable to her, and since there is no evidence in the record that the issuing Court expressly admonished Defendant to promptly break off any communication with such a person once begun, this ambiguity of the "not to contact" provision must be resolved in favor of Defendant. This conclusion is buttressed here by the fact that Defendant's participation in the conversation was not otherwise unlawful; it did not amount to harassment, physical or verbal, of Mrs. Dawz and he was not so charged. Nor did he use the conversation to, through Mrs. Dawz, threaten his wife with harm.

Accordingly, it is the decision of this Court that the People have not sustained their burden of proving that Defendant committed an "intentional disobedience or resistance" to the TOP, and the Court finds Defendant not guilty of the misdemeanor of Criminal Contempt in the Second Degree.