Opinion
July 7, 1998
Appeal from the Criminal Court, Kings County (L. Cross, J.).
Charles J. Hynes, District Attorney of Kings County (Nancy E. Talcott and Leonard Joblove of counsel), for appellant.
Legal Aid Society, New York City (Svetlana Kornfeind of counsel), for respondent.
Memorandum: Order affirmed.
The information charging defendant with harassment in the second degree and criminal contempt in the second degree contained the following factual allegations:
"THE DEPONENT IS INFORMED BY GINA MOFFETT, THAT AT THE ABOVE TIME AND PLACE, THE DEFENDANT DID ENGAGE IN A VERBAL DISPUTE WITH INFORMANT AND DID CALL INFORMANT A FUCKING BITCH AND A WHORE. DEPONENT IS FURTHER INFORMED BY INFORMANT THAT WHEN INFORMANT LEFT THE ABOVE LOCATION TO PREVENT FURTHER CONFRONTATION WITH DEFENDANT, DEFENDANT DID FOLLOW INFORMANT AND TRY TO CONTINUE THE VERBAL DISPUTE, CAUSING INFORMANT TO BECOME SERIOUSLY ALARMED AND SERVING NO LEGITIMATE PURPOSE.
DEPONENT IS FURTHER INFORMED BY INFORMANT THAT A LIMITED ORDER OF PROTECTION WAS ISSUED BY JUDGE CROSS ON NOVEMBER 6, 1996, EFFECTIVE UNTIL NOVEMBER 5, 1997 ON DOCKET NO. 96K073170 ORDERING DEFENDANT TO REFRAIN FROM ASSAULT, HARASSMENT, MENACING, RECKLESS ENDANGERMENT, DISORDERLY CONDUCT, INTIMIDATION, THREATS, OR ANY CRIMINAL OFFENSE AGAINST INFORMANT. DEPONENT IS FURTHER INFORMED BY INFORMANT THAT DEFENDANT SIGNED SAID ORDER OF PROTECTION IN COURT ON NOVEMBER 6, 1996."
DEPONENT IS FURTHER INFORMED BY INFORMANT THAT INFORMANT'S THREE YEAR OLD CHILD, SHAKEIRA HOGAN (DOB: 4/6/93) WAS PRESENT DURING THE ABOVE INCIDENT."
A corroborating affidavit of the complainant and a copy of the temporary order of protection were annexed to the information. (A charge of endangering the welfare of a child was dismissed and the dismissal is not challenged on appeal)
We agree with the Court below that the accusatory instrument failed to contain facts supporting the allegation that the defendant engaged in a "course of conduct," since there is no factual detail as to the manner in which he tried to continue the verbal dispute (see, People v. Sullivan, NYLJ March 12, 1997 [App Term 9th 10th Jud. Dists.]). We also note that the use of abusive language would not support a conviction of harassment(see, People v. Dietze, 75 N.Y.2d 47).
In view of the failure of the accusatory instrument to set forth facts supporting the charge of harassment, defendant cannot be held to have violated the protective order on this ground. We also disagree with the contention of the People that the defendant's conduct constituted intimidation. Consequently, the charge of criminal contempt was also properly dismissed.
Aronin and Patterson, JJ., concur.
Scholnick, J.P. dissents in part and votes to modify the order by denying that part of the defendant's motion as sought dismissal of the charge of criminal contempt in the second degree.
While I agree that the charge of harassment was properly dismissed, it is my opinion that the charge of criminal contempt in the second degree should be reinstated. The verbal abuse set forth in the information and defendant's act of following complainant when she tried to walk away, when taken in conjunction with the necessity of issuing the temporary order of protection, which is impliedly indicative of prior offensive conduct on the part of the defendant, is sufficient to establish, if believed, the intimidation alleged by complainant. I note that the criminal contempt charge does not require a course of conduct as did that of harassment. Moreover, the reliance of the People upon a specific theory in opposition to a motion to dismiss does not bar them from putting forth another theory on appeal so long as it is supported by the accusatory instrument, since only a question of law is involved. To be distinguished are those cases where a change of theory on appeal affects a defendant's right to offer evidence to counter it, whether at a pretrial hearing or at the trial itself (see, People v. Grega, 72 N.Y.2d 489, People v. Nieves, 67 N.Y.2d 125)
PRESENT: SCHOLNICK, J.P., ARONIN and PATTERSON, JJ.