Opinion
05-04-0041.
Decided July 20, 2005.
Jerold S. Slate, Esq., New York, Attorney for Defendant Poughkeepsie.
William V. Grady., Esq., Poughkeepsie, New York, Dutchess County District Attorney.
The defendant Alioune Ndiaye is charged with criminal contempt in the second degree [Penal Law, Section 215.50 (3)], a class A misdemeanor. He moves to dismiss the accusatory instrument pursuant to CPL 170.30 (1) (a) on the ground that it is facially insufficient. In determining this motion, the Court has considered the factual allegations in the accusatory instrument and supporting deposition, both sworn to by Selly Diaite on April 5, 2005, the underlying order of protection and defendant's motion papers. According to defendant's affidavit of service, the People were personally served with the defendant's motion on May 24, 2005. They have not filed any answering papers to the motion.
FACTS
The People allege in the accusatory instrument that on April 5, 2005 at about 6:15 p.m. at 3 Hook Road in the Town of Hyde Park, County of Dutchess, New York that defendant violated a Family Court Order issued by the Hon. Valentino Sammarco on December 22, 2004 for which the defendant was present (File No. 36140, Doc. No. 0-05837-04, Order 2004-001741). The accusatory instrument further alleges "that the defendant did violate the order by being within 500 feet of petitioner at the Arbors Apartments, 3 Hook Road in the Town of Hyde Park, County of Dutchess, New York. He refused to leave and pick up his son at McDonald's. He stated he wants the child now and when he brings him back there is nothing I can do about it. This is in violation of the stay away provision of the order and is contrary to law."
The supporting deposition of Selly Diaite states:
"I was going to a friend house her name is Aissatou Ndiaye I saw another friend Judy, we stop at the side of the street talking. Suddenly I saw Alioune Ndiaye in his car, telling me he wants to take Jibril and I told him to go where we suppose to do the exchange visitation and then he said he will not leave he wants the child now and he said he told me he is going to the complesce to pick up Jibril anytime he wants, and my son ran and go in his car and they left. He also said he is going to bring him back and there is nothing I can do about. That's when I told my friend I'll have to call the police. My concern was my child running to his car without having nobody holding his hand and cars come out of nowhere it happens at the arbors condominium."
The order of protection issued by the Hon. Valentino Sammarco on December 22, 2004 in Dutchess County Family Court states that Alioune Ndiaye observe the following conditions:
Stay away from:
[A] Selly Diaite (DOB: 07/27/1969) — At least 500 feet; except for pick up and drop off for visitation at McDonalds by Marist College in Poughkeepsie;
[B] the home of Selly Diaite (DOB: 07/27/1969) — At least 500 feet
[C] the business of Selly Diaite (DOB: 07/27/1969) — At least 500 feet
[D] the place of employment of Selly Diaite (DOB: 7/27/1969) — At least 500 feet;
[14] Refrain from communication or any contact by mail, telephone, e-mail, voice-mail or other means with Selly Diaite (DOB: 7/27/1969) except for matter concerning the child, Jabril Ndiaye (DOB: 09/06/2001);
[02] Refrain from striking, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats or any criminal offense against Selly Diaite (DOB: 07/27/1969);
[99] Observe such other condition(s) as are necessary to further the purposes of protection: The foregoing "stay away" provisions and the "no communication" provisions contained in paragraphs "[01]" and "[14]" shall NOT apply to such reasonable and peaceful contact and communication.
The order of protection expires on December 22, 2005.
In an affidavit filed with the instant motion to dismiss, the defendant states, in pertinent part:
4. At times there would be discussions between Selly Diate and myself over the time and place of "pick-up" and "drop-off" of my son as part of the visitation arrangements concerning the time, place and convenience of the "pick-up" and "drop-ff" of my son.
5. On April 4, 2005, Selly Diaite called me and told me that I could pick up my son, Jibril, after I finished work at IBM, on April 5, 2005 and that I could "pick-up" my son at Selly Diaite's residence at the Arbors Condominium in Hyde Park.
6. After work on April 5, 2005, I drove my car to the Arbors Condominium, 3 Hook Road, Hyde Park, New York at about 6:15 p.m. and saw Selly Diaite with my son Jibril Ndiaye. I parked my car. My son, Jibril, saw me and came over to my car and went into my car.
7. I picked up my son for a regular, pre arranged and normal visitation on April 5, 2005. I was not violent. I made no threats to anyone. I was reasonable. I was peaceful. I did not intimidate anyone. I observed the provisions of the custody/visitation Order of the Family Court and the Order of Protection. I did not yell, scream or show any anger. I did not use any abusive language or make any threatening or abusive gestures. . . . . ."
8. Selly Diaite has made many past arrangements with me to "pick-up" and "drop-off" my son at the Arbors Condominium and other places and there has never been any incidents that would be a violation of the Order of Protection.
DISCUSSION
In order for an information to be sufficient on its face, it must contain evidentiary and nonhearsay factual allegations which, together with any supporting depositions, provide reasonable cause to believe that the defendant committed every element of the offense charged. CPL 100.15, 100.40; People v. Casey, 95 NY2d 354 (2000); People v. Alexandro, 70 NY2d 133 (1987) An information which fails to satisfy these standards is jurisdictionally defective and must be dismissed.
The defendant is charged with criminal contempt in the second degree. According to Penal Law, Section 215.50 (3), a person is guilty of criminal contempt in the second degree when he or she intentionally disobeys or resists the lawful process or other mandate of the court. Penal Law, Section 15.05(1) defines "intentionally" as follows: a person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result in to engage in such conduct.
To establish a prima facie case of criminal contempt in the second degree, the information must contain evidentiary and nonhearsay factual allegations that (1) there has been a clear and definite order issued by the court against the defendant; (2) defendant knew of the order; and (3) defendant wilfully disobeyed it. Matter of Holtzman v. Beatty, 97 AD2d 79 (2nd Dept., 1983); People v. Nawaz, 183 Misc 2d 195 (Crim.Ct., Kings Co, 1999).
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. Depart. of Environ. Protection v. Depart. of Environ. Conservation, 70 NY2d 233, 241 (1987); Matter of McCormack v. Axelrod, 59 NY2d 574 (1983). 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. Dept. of Environ. Protection v. Dept. of Environ. Conservation, supra at 241; Pereira v. Pereira, 35 NY2d 301, 308 (1974); People v. Forman, 145 Misc 2d 115, 133 (Crim.Ct., NY Co. 1989). Where the order alleged to have been disobeyed is capable of a construction consistent with the innocence of the party, there may be no adjudication of contempt. Dept. of Environ. Protection v. Dept. of Environ. Conservation, supra at 241. "The long standing, salutary rule in contempt cases is . . . . . that ambiguities and omissions in orders redound to the benefit of the person charged with contempt." Matter of Holtzman v. Beatty, 97 AD2d at 82 (2nd Dept. 1983); see also, People v. Hogan, 172 Misc 2d 279, 285-286 (Crim.Ct. Kings. Co. 1997), aff'd, 181 Misc 2d 748 (App. Term, 2nd Dept., 1998). That is, the 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. People v. Pucilowski, 4 Misc 3d 1019A, 2004 Misc LEXIS 1296 (2004).
The wilful type of conduct contemplated by Penal Law, Section 215.50 must be of a kind that justifies a belief that a defendant's intent was to defy the authority of the court or evade its mandate. People v. Gomez, 108 Misc 2d 480, 482 (Crim.Ct., NY Co, 1981). That is, the defendant's "conscious objective" must have been to violate the order.
CONCLUSION
The court finds the order of protection contains indefinite and ambiguous terms regarding the "stay away" and "no communication" provisions of the order. Assuming the truthfulness of the complainant's allegations, there is a lack of sufficient objective facts alleged in the information to reasonably demonstrate the defendant's conscious objective was to violate the order of protection.
Accordingly, the defendant's motion to dismiss on facial insufficiency grounds pursuant to CPL 170.30 (1) (a) is granted and the information is dismissed. The Court also grants dismissal pursuant to CPL 170.30 (1) (f) in that, for the reasons set forth above, there exists a legal impediment to conviction of the defendant for the offense charged.
The foregoing shall constitute the Court's Decision and Order.