Opinion
No. 2017NY025126.
10-05-2017
The PEOPLE of the State of New York, Plaintiff, v. Cheng TASI, Defendant.
Addabbo and Greenberg, by Caitlin N. Young, Esq., for the Defendant. Cyrus R. Vance, Jr., New York County District Attorney, by ADA Allen Bradley, for the People.
Addabbo and Greenberg, by Caitlin N. Young, Esq., for the Defendant.
Cyrus R. Vance, Jr., New York County District Attorney, by ADA Allen Bradley, for the People.
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. This case presents the question whether either the allegations that the complainant saw the defendant "standing outside of her school," or that the defendant "attempt[ed] to approach her," sufficiently allege that he violated an order of protection that directed him to "[s]tay away from" the complainant and her school.
Defendant also moves to suppress certain post-arrest statements. The Court has already ordered a Huntley/Dunaway hearing.
For the reasons that follow, the Court answers this question in the affirmative. Defendant's motion to dismiss for facial insufficiency is accordingly DENIED.
According to the court file, on June 15, 2017, Judge Chu denied what appears to have been an oral motion to dismiss the information for facial insufficiency. The instant written motion was filed on June 20, 2017, some five days later, so this Decision and Order is based on the written motion.
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I. FACTUAL BACKGROUND
A. The Allegations
According to the accusatory instrument, on April 24, 2017, the complainant, defendant's ex-girlfriend, saw the defendant "standing outside of her school," and "observed the defendant attempt to approach her," in violation of a temporary order of protection that this Court had issued in her favor.
B. The Underlying Order of Protection
The temporary order of protection was entered in New York County Criminal Court on April 17, 2017, in connection with Docket No. 2017NY013745, a case in which the defendant was charged with, inter alia, assault in the third degree. Penal Law § 120.00(1), with respect to this same complainant. The order, which bears an expiration date of April 16, 2018, directs the defendant, in pertinent part, to "[s]tay away from" the complainant and her "school." Defendant was present in court when the order was entered; it was personally served on him there, and it bears his signature.
C. Legal Proceedings
Defendant was arraigned on May 2, 2017, on a misdemeanor complaint charging him with one count criminal contempt in the second degree, in violation of Penal Law § 215.50(3). The Court set bail, which defendant immediately posted, and adjourned the case for conversion. Defendant filed the instant motion to dismiss June 20, 2017, and on August 3, the first court date after the motion was filed, the Court directed the People to respond by August 17. The motion has been sub judice since then.
D. The Information
The misdemeanor complaint, sworn out by Detective Mashud Rahman, provides that:
I am informed by ... [the complainant] ... that [she] observed the defendant standing outside of her school [in New York County], and that she observed the defendant attempt to approach her.
The defendant's conduct is in direct violation of a valid Order of Protection, issued in New York County Criminal Court by Hon. Judge Darkeh, on April 17, 2017, in conjunction with Docket No. 2017NY01374[5]. The order expires on April 16, 2017, and orders the defendant to stay away from [the complainant]. The Order of Protection was signed by the defendant.
The People filed the underlying order of protection at arraignment and filed the supporting deposition of the complainant on May 5, 2017, on which date the misdemeanor complaint was converted to an information.
III. DISCUSSION
Defendant is charged with criminal contempt in the second degree, under Penal Law § 215.50(3). The complainant, the party protected by the order of protection, saw him outside of her school, and also saw him attempt to approach her. Because these allegations sufficiently allege a violation of the order, which directed the defendant to "[s]tay away" from the complainant and her school, defendant's motion to dismiss for facial insufficiency is denied.
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 (2014) ; People v. Alejandro, 70 N.Y.2d 133, 138–39 (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 (2009) (citing People v. Henderson, 92 N.Y.2d 677, 679 and CPL 100 .40(1)(c)). This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229.
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 (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 (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 (2012). See also Casey, 95 N.Y.2d at 360.
B. Facial Sufficiency in Criminal Contempt Cases.
When it comes to motions to dismiss a criminal contempt charge addressed to the scope of an order of protection, the Court of Appeals has suggested that the preferred course is generally to permit the defendant to assert the claim as a trial defense, rather than dismissing the case. People v. Konieczny, 2 NY3d 569, 577 (2004). In addition, as this Court has noted, public policy strongly counsels in favor of discouraging defendants from violating orders of protection as a means of testing either their validity or scope, a policy that is best served by refraining from dismissing criminal contempt charges at the motion stage absent a truly compelling reason to do so. People v. Ellis, 45 Misc.3d 716 (Crim.Ct. N.Y. County 2014).
Accordingly, a facial insufficiency motion should only be granted in a criminal contempt case involving the violation of an order of protection when there is a defect in the order that is clear on its face. Cf. Konieczny, 2 NY3d at 576 ("there is no evident flaw in the order of protection—on its face it appears to be enforceable"). Thus, for example, in People v. Harrison, 48 Misc.3d 1206(A), (Crim.Ct. N.Y. County 2015), the Court dismissed a criminal contempt count because the order of protection that the defendant was accused of violating had not been signed by a judge, and hence was not a "lawful mandate." Similarly, in People v. Muchuca, 43 Misc.3d 1220(A) (Crim.Ct. N.Y. County 2014), the Court dismissed where, due to a clerical error, the order of protection that the defendant was accused of violating bore an expiration date of January 2, 2013, instead of January 2, 2014. Since the 2013 date was before date upon which the defendant was alleged to have violated the order, that order had "expired according to its own terms" before the offense had been committed, and the information was facially insufficient. Id. (following People v. Cordwell, 11 AD3d 731 (3d Dept.2004) ). Finally, in People v. Kelley, 42 Misc.3d 1221(A) (Crim. Ct. N.Y. County 2014), where a defendant was charged with violating an order of protection by telephoning the complainant, the Court dismissed the contempt charge because the box on the order forbidding telephonic communication had not been checked.
On the other hand, in those cases where a motion to dismiss has been grounded on an assertion that cannot be resolved by reference to the face of the order of protection, dismissal is disfavored. Thus, for example, in People v. Lemons, 52 Misc.3d 848, 853 (Crim. Ct. N.Y. County 2016), the Court denied a motion to dismiss premised on the claim that the defendant's effort to "friend" the complainant on Instagram did not sufficiently allege a violation of the "no contact" provisions of an order of protection. "The electronic communication originated with the defendant and ended up in the complainant's Instagram inbox, where she saw it," even if the defendant's initial communication was a "friend request" made to Instagram, which forwarded the message to the complainant. Id. The Court specifically noted that "to the extent that the defendant argues that he did not know or understand that a request he made to Instagram would be forwarded to the complainant, it will be for the finder of fact at trial to resolve that claim." Id. at 854.
Similarly, in People v. Rosario, 44 Misc.3d 1204(A) (Crim.Ct. N.Y. County 2014), the Court denied a motion to dismiss where the defendant claimed that he did not understand the terms of an order of protection because there was no Spanish interpreter present in court—none had been requested—when the order was entered. The Court held that "[w]hether, and to what extent, defendant understood the [order] are questions for the finder of fact at trial ." Id. Finally, in Konieczny, 2 NY3d at 569, the Court of Appeals rejected a claim that a criminal contempt information was jurisdictionally defective because it was issued in favor of a party who was neither a victim nor a witness.
C. The Information Here Is Facially Sufficient
Under these precedents, the Court has little trouble concluding that the information here is facially sufficient. Defendant's argument requires the court to interpret the phrase "stay away from," as used in the order of protection. This Court has always construed orders of protection expansively and in a manner that is consistent with their purpose—to ensure the emotional and physical well being of the protected party. Accordingly, while it is clearly possible to stretch the phrase "stay away from" beyond its linguistic limit—for example, that phrase does not prohibit a telephone call, People v. While, 188 Misc.2d 394 (Sup.Ct. N.Y. County 2001) ; People v. Taylor, 2002 WL 126291 (App.Div. 1st Dept.2002) —this case does not involve an effort to communicate with the complainant by remote means, nor does it otherwise require an unreasonable distortion of distort the phrase "stay away from."
And, while it is true that the information does not specifically allege how far the defendant was from the complainant when he stood outside her school and tried to approach her, this is not fatal to the pleading. Defendant was close enough to the complainant that she could see him and, for facial insufficiency purposes, that is enough. These facts lead to a reasonable inference that the defendant violated the order of protection and that he did so deliberately. E.g., People v. Ellison, 106 AD3d 419, 420 (1st Dept.2013) (allegation that defendant went to wife's place of employment showed that he deliberately violated order of protection). No further precision is required in an information charging the defendant with criminal contempt for violating an order of protection.
One case that illustrates this is People v. Kelly, 44 Misc.3d 1203(A) (Crim. Ct. N.Y. County 2014). There, Court concluded that the allegation that defendant approached and followed the protected party in Central Park sufficiently alleged a violation of the "stay away" order, even though the information did not specify the distance between them. Similarly, in People v. Salazar, 290 A.D.2d 256 (1st Dept.2002), the allegation that the defendant was outside the protected party's apartment was legally sufficient to support a conviction for violating an order that he stay away from her home even though, again, the actual distance was not specified.
The information alleges that the defendant was physically near both the complainant's school and the complainant herself. As the court observed in White, "[t]he phrase ‘stay away’ " is defined as " ‘to not go to a place,’ " and thus "the natural and ordinary meaning of the phrase ‘stay away from the person’ is to physically remain in a different place or location from an individual or to be somewhere else." Id. at 397. Under this common-sense definition, the information sufficiently alleges that defendant failed to "stay away from" the complainant or her school. The allegations that the complainant saw the defendant outside of her school and that she saw him try to approach her, sufficiently allege a failure to "physically remain in a different place or location from [the complainant] or to be somewhere else."
D. Conclusion
Since the information alleges facts from which each element of Penal Law § 215.50(3) can be reasonably inferred, defendant's motion to dismiss for facial insufficiency is denied.
IV. CONCLUSION
For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is denied.
This constitutes the Decision and Order of the Court.