Opinion
No. 2014NY046965.
01-08-2015
The PEOPLE of the State of New York v. Melvin WILLIAMS, Defendant.
Lewis Gladston, Esq., for the defendant. Cyrus R. Vance, Jr., New York County District Attorney, for the People.
Lewis Gladston, Esq., for the defendant.
Cyrus R. Vance, Jr., New York County District Attorney, for the People.
Opinion
STEVEN M. STATSINGER, J.
Defendant, charged with Criminal Contempt in the Second Degree (Penal Law § 215.50(3) ), moves to dismiss, arguing that the Information is facially insufficient. For the reasons that follow, defendant's motion to dismiss for facial insufficiency is DENIED. Defendant also moves to suppress certain post-arrest statements. As to that, the Court GRANTS a Huntley/Dunaway hearing.
In deciding this motion, the Court has considered the written arguments of the parties, the documents in the Court file and the relevant statutes and case law.
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I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, on June 15, 2014, defendant telephoned the complainant, his son, and threatened to have the son and the son's mother evicted. He told the son, “You're going to regret this and it's going to hurt real bad.” This threat violated a Family Court Order of Protection in favor of the son and the son's mother.
B. The Underlying Order of Protection
The Order of Protection was entered in the defendant's presence in the New York County Family Court on May 27, 2014, and bore an expiration date of June 18, 2014. The order directed the defendant to [r]frain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion or any criminal offense against the complainant and the complainant's mother.
C. Legal Proceedings
Defendant was arraigned on June 16, 2014, on a Misdemeanor Complaint charging him with one count each of Criminal Contempt in the Second Degree, in violation of Penal Law § 215.50(3), and Endangering the Welfare of a Child, in violation of Penal Law § 260.10(1), and was released on his own recognizance.
Defendant filed the instant motion to dismiss on October 8, 2014, and the People responded on October 23. In addition, on that same day, the Court dismissed the Endangering the Welfare of a Child count on the People's motion. Defendant's motion to dismiss has been sub judice since October 23.
II. THE INFORMATION
The Misdemeanor Complaint, sworn out by Police Officer Steven Remenar, provides, in pertinent part, that:
I am informed by Christopher Williams ... that [on June 15, 2014, in New York County] he heard the defendant threaten him, in that he heard the defendant say, in substance, to him: “I'm going to court to have you and your mother removed from the house. You're going to regret this and it's going to hurt real bad, I'll promise that.”
The defendant's conduct is in direct violation of a valid Order of Protection, issued in New York County Family Court by Hon. Judge Burnett on May 27, 2014, in conjunction with Docket No. O–33962–14. The order remains in force until and including June 18, 2014, and orders the defendant to refrain from threatening Mr. Williams. The defendant was advised in Court of the issuance and contents of the Order.
The People filed the Family Court Order of Protection at defendant's arraignment, and the Supporting Deposition of Christopher Williams off-calendar on July 21, 2014.
III. DISCUSSION
Defendant is charged with Criminal Contempt in the Second Degree, Penal Law § 215.50(3). He is alleged to have warned the complainant, his son, that he would have the complainant and the complainant's mother evicted, and that this would “hurt real bad,” in violation of a Family Court Order of Protection that, inter alia, ordered the defendant to “[r]efrain from ... threats” against the complainant. Defendant moves to dismiss for facial insufficiency, arguing that his conduct did not constitute a “true” threat, since it threatened only “legal action.” Alternatively, defendant argues that the Family Court Order of Protection was ambiguous and that defendant “could not have conceivably imagined that [it] prohibited” this conduct. For the reasons that follow, the Court rejects these arguments.
A. Facial Sufficiency in General
A Misdemeanor Information serves the same role in a misdemeanor prosecution that an Indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518, 16 N.E.3d 1150, 992 N.Y.S.2d 672 2014 ); People v. Alejandro, 70 N.Y.2d 133, 138–39, 517 N.Y.S2d 927, 930–31, 511 N.E.2d 71, 74 (1987). Accordingly, a Misdemeanor Information must set forth “nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof.” People v. Kalin, 12 NY3d 225, 228–29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v. Henderson, 92 N.Y.2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40(1)(c) ). This is known as “the prima facie case requirement.” Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.
The prima facie case requirement does not necessitate that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the Information need only contain allegations of fact that “give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense.” People v. Casey, 95 N.Y.2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a “fair and not overly restrictive or technical reading,” id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15 ; People v. Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721–22, 967 N.E.2d 1160, 1166–67 (2012). See also Casey, 95 N.Y.2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.
Finally, specifically with respect to motions to dismiss addressing the scope of an order of protection, the Court of Appeals has indicated that the preferred course in most such cases is not to dismiss the case but to permit the defendant to assert the claim as a trial defense. People v. Konieczny, 2 NY3d 569, 577, 780, N.Y .S.2d 546, 552 813 N.E.2d 626, 632 (2004) ( “[W]hether the order was valid on the date of the contumacious conduct was a matter to be raised as a defense to the contempt charge, not by insistence that this information was jurisdictionally defective.”) In addition, as this Court has noted, public policy strongly counsels in favor of deterring defendants from violating orders of protection as a means of testing their validity. People v. Ellis, 45 Misc.3d 716, 994 N.Y.S.2d 510 (Crim. Ct. N.Y. County 2014) (Statsinger, J.).
B. The Order of Protection is Not Ambiguous
An order of protection is ambiguous when its terms are so unclear that a person of ordinary intelligence would be unable to understand what conduct might violate the order. See, e.g., N.L.R.B. v. Bell Oil & Gas Co., 98 F.2d 405 (5th Cir.1938) (an ambiguous order is one that is “confusing to one of ordinary intelligence”). Thus, for example, People v. Roblee, 70 AD3d 225, 228 890 N.Y.S.2d 166, 169 (3d Dept.2009), found an order of protection ambiguous. There, defendant was charged with criminal contempt after contacting the person named in the order by mail from prison. But the box prohibiting contact by mail was not checked, and a handwritten “no contact” provision “could be interpreted as prohibiting [only] physical or in-person contact.” Id.
By this standard, the Order of Protection here is not ambiguous. It prohibited the defendant from making “threats,” and did not contain any limitation on their nature. While defendant seems to suggest that a natural reading of the Order would restrict the term to threats of violence, there is no basis for reading the Order that narrowly. The other actions prohibited by the Order are not limited to acts of physical violence against the persons protected by the Order: the list includes identity theft, grand larceny, and “any criminal offense,” including clearly, those that do not involve violence.
Accordingly, the Court rejects defendant's argument that the Order of Protection is ambiguous.
C. Defendant's Conduct Constituted a “Threat”
When defendant warned his son that he would have the son and the son's mother evicted and that it would “hurt real bad,” he violated the provision in Order of Protection that he refrain from “threats” against those parties. While neither the Order itself nor the relevant Family Court statutes define this term, its ordinary meaning clearly covers this conduct.
Blacks Law Dictionary (9th ed.2009) defines a “threat” as a “communicated intent to inflict harm or loss on another or on another's property.” And a “threat” is a “true threat” when “an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury.” People v. Bonitto, 4 Misc.3d 386, 777 N.Y.S.2d 900 (Crim. Ct. N.Y. County 2004) (citation and internal quotation marks omitted). Both of these standards are met here. Defendant's communication clearly intended the intent to inflict harm, that harm being eviction. And there is certainly a reasonable inference, sufficient at least at the pleading stage, that the complainant interpreted the communication as a true threat of injury. He did, after all, report it to the police.
Accordingly, defendant's conduct constituted a “threat,” in violation of the Family Court Order of Protection.
D. Conclusion
For the foregoing reasons, defendant's motion to dismiss for facial insufficiency is denied; a Huntley/Dunaway hearing is granted.
IV. CONCLUSION
For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is denied. The Court orders a Huntley/Dunaway hearing.
This constitutes the Decision and Order of the Court.