Opinion
No. 13–65568.
07-17-2014
The PEOPLE of the State of New York, v. Michael TYRRELL, Defendant.
Beth Gibson, Esq., Senior Assistant Public Defender, Dutchess County Public Defender, Poughkeepsie, Attorney for the Defendant. Allison J. Stuart, Esq., Senior Assistant District Attorney, Dutchess County District Attorney, Poughkeepsie.
Beth Gibson, Esq., Senior Assistant Public Defender, Dutchess County Public Defender, Poughkeepsie, Attorney for the Defendant.
Allison J. Stuart, Esq., Senior Assistant District Attorney, Dutchess County District Attorney, Poughkeepsie.
Opinion
FRANK M. MORA, J.
Defendant has moved by way of a Notice of Omnibus Motion, dated April 8, 2014, seeking various forms of relief, including dismissal of the accusatory instruments on the grounds that the Court lacks jurisdiction, and that the accusatory instruments are facially insufficient. Defendant's motion is supported by the affirmation of Beth Gibson, Esq., Senior Assistant Public Defender, undated. The People have opposed the motion by filing an “Affirmation in Answer to Defendant's Notice of Motion,” supported by the affirmation of Allison J. Stuart, Esq., Senior Assistant District Attorney, dated April 30, 2014. The defendant has filed a reply affirmation of Beth Gibson, Esq., dated May 8, 2014, in further support of his motion to dismiss for lack of jurisdiction and in reply to the People's opposition.On November 27, 2013, defendant was originally arraigned on the following charges: criminal contempt in the first degree in violation of Penal Law § 215.51(b)(ii), a class E felony, criminal contempt in the second degree in violation of Penal Law § 215.50(3), a class A misdemeanor, and stalking in the fourth degree in violation of Penal Law § 120.45(1), a class B misdemeanor. On March 31, 2014, the People reduced the felony criminal contempt charge to criminal contempt in the second degree in violation of Penal Law § 215.50(3), a class A misdemeanor. Having duly deliberated on said motion, the People's opposition, and defendant's reply, the Court hereby finds and determines the motion as follows:
1. Defendant's motion to dismiss based upon lack of jurisdiction:
a. Criminal Contempt charges:
The defendant's motion to dismiss the informations for lack of jurisdiction charging the defendant with two (2) counts of criminal contempt in the second degree is denied.
While the general rule of law is that local criminal courts are limited in jurisdiction to matters bearing a necessary nexus to the geographical limits of the political subdivisions in which they lie, there are exceptions to this rule. McKinney's Practice Commentaries, C.P.L. § 20.50. Section 20.50 of the Criminal Procedure Law sets forth the geographical jurisdiction of offenses that occur within cities and towns. This statute provides that the principles set forth in section 20.40 also govern jurisdiction between local criminal courts. C.P.L. § 20.50(1). New York State's Legislature has enacted exceptions to the general rule of law establishing geographical jurisdiction. Those exceptions are found in article 20 of the Criminal Procedure Law, sometimes referred to as the injured forum jurisdiction.
Injured forum jurisdiction-as set forth within C.P.L. § 20.40(2)(c) —provides that when there is valid state jurisdiction, a court of another jurisdiction may try and convict that person even though none of the conduct constituting the offense occurred in the jurisdiction in which it was brought when: (1)[s]uch conduct had or was likely to have a particular effect upon such county or a political subdivision or part thereof and (2) the conduct was performed with intent that it would, or with knowledge that it was likely to, have such particular effect within the county in question. C.P.L. § 20.40(2)(c). To constitute a particular effect within the county, “the offense must produce consequences that ... have a materially harmful impact upon the governmental processes or [the] community welfare ...” C.P.L. § 20.10(4).
C.P.L. 20.40(2)(c) provides, “A person may be convicted in an appropriate criminal court of a particular county, of an offense of which the criminal courts of this state have jurisdiction ... committed either by his own conduct or by the conduct of another for which he is legally accountable ... when 2. Even though none of the conduct constituting such offense may have occurred within such county: (c) Such conduct had, or was likely to have, a particular effect upon such county or a political subdivision or part thereof, and was performed with intent that it would, or with knowledge that it was likely to, have such particular effect therein; or ...”
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Here, this Court finds that when the defendant violated the Family Court Order of Protection located in the City of Poughkeepsie, defendant's conduct had a “particular effect” on the Family Court that issued the edict because Courts rely upon the full force and effect of its orders of protection [ (People v. Ortega, 152 Misc.2d 84 (New York County 1991) ], and they have an interest in ensuring that their orders of protection are not only obeyed to protect the named complainants, but that they protect the well being of the community as a whole. See, In re Taub et al., v. Altman et al., 3 NY3d 30, 33 (2004). The gravamen of the instant crimes is that the defendant violated the Family Court's Order which interferes with the court's administration of justice-a factor found by the Court of Appeals to create a perceptible, materially harmful impact upon the particular court that issued the order even if the conduct violating the order occurred outside that court's jurisdiction. See, In re Taub, supra at 36 (specifically citing violations of an order of protection issued in a particular county where the conduct violating the order occurred elsewhere as an example of a situation that creates a materially harmful impact on a jurisdiction even though the offensive conduct has occurred in another jurisdiction)-thus fulfilling the statutory jurisdictional requirements of C.P.L. § 20.40(2)(c).
Therefore, this Court now elects to follow the holding set forth in People v. Bharwani, NYLJ, Dec. 2, 1998 (2d Dept. Queens County) which held that a “clear and present danger arises when a court's power to protect complainants and witnesses in criminal proceedings is impugned and geographically limited. Thus, ... a violation of an order of protection has a particular effect on the issuing jurisdiction's courts that is material, concrete and identifiable.” People v. Bharwani, NYLJ, Dec. 2, 1998 (2d Dept. Queens County). Here, the scope of the full stay away order of protection is clearly not limited to a particular township. Rather, the defendant has a duty under Order of the Court from which the prohibited conduct was borne out to have no contact with the complainant-regardless of borders that divide our townships and counties. It is inconsequential as far as determining jurisdiction of this Court that the defendant may have had the GPS device placed on the complainant's vehicle in another jurisdiction. The alleged action violated the order. In fact, there is no indication within the statutory language of C.P.L. § 530.12 (from which the Family Court order of protection in this case arose out of) that violations of an order of protection can only be prosecuted within the jurisdiction where the violation occurred, nor that the protections with which the order cloaks the complainant are contingent upon where the violation occurred. People v. Nakouzi, 31 Misc.3d 1213(A)(Kings County 2011) (defendant's motion to dismiss criminal contempt charge for lack of jurisdiction was denied).
This Court now holds that there exists concurrent geographic jurisdiction of the criminal contempt charges, wherein the jurisdiction that the issuing court lies has unmistakable jurisdiction, and that jurisdiction also extends to where the offending conduct occurred. See, People v. Bharwani, supra. Thus, a court maintains jurisdiction over any conduct that violates an order of protection issued out of that court, regardless of where the alleged offending conduct occurred. C.P.L. § 20.40(2)(c) ; People v. Nakouzi, 31 Misc.3d 1213(A)(Kings County 2011) ; People v.Bharwani, N.Y.L.J. 12/2/1998 (Queens County, 2d Dept.); People v. Ortega, 152 Misc.2d 84 (New York County 1991).
b. Stalking Charge:
Defendant's motion to dismiss the stalking charge on the grounds that the Court lacks jurisdiction is also denied. Contrary to the defendant's assertion that there is no allegation that the unlawful conduct occurred in the City of Poughkeepsie, this Court finds otherwise. At the beginning of the accusatory instrument, Sergeant Vincent Stelmach clearly avers that the stalking offense occurred “in the City of Poughkeepsie” which confers upon this Court geographical jurisdiction of the offense. Presently before this Court is defendant's motion to dismiss for facial sufficiency. Whether the People can meet their burden of proof at trial on this element of the offense is not now a matter before this Court to consider.
2. Defendant's Motion to dismiss as facially insufficient:
The defendant's request seeking to dismiss the informations as facially insufficient is denied.
An information is sufficient on its face only if it contains non-hearsay factual allegations which, if true, establish every element of the offense and provide reasonable cause to believe the defendant committed the offense charged. C.P.L. § 100.15(3) ; 100.40(1)(b),(c); People v. Casey, 95 N.Y.2d 354 (2000). As such, an accusatory instrument will be dismissed as facially insufficient if it fails to allege non-hearsay facts of an evidentiary nature that support or tend to support each and every element of the offenses charged and the defendant's commission thereof. C.P.L. § 100.15(3) ; 100.40(1)(c); People v. Alejandro, 70 N.Y.2d 133 (1987). To be facially sufficient, however, an accusatory instrument need only establish a prima facie case and it need not establish guilt beyond a reasonable doubt. People v. Henderson, 92 N.Y.2d 677 (1999) ; People v. Moncayo, N.Y.L.J., April 10, 1997, at 29, Col 4 [App Term, 2d & 11th Jud. Distr.]. The prima facie case requirement is not the same as the burden of proof beyond a reasonable doubt required at trial. People v. Henderson, supra at 680. Thus, an accusatory instrument simply must allege the elements of the offenses charged and acts or conduct which would reasonably indicate the defendant's commission of such offenses. People v. Munoz, 10 Misc.3d 1052A (New York County 2005).
a. Criminal contempt charges:
To make out the charge of criminal contempt in the second degree, the accusatory instrument must allege that a lawful order of the court clearly expressing an unequivocal mandate was in effect, that the defendant had knowledge of its provisions, and that the defendant intentionally disobeyed it. See, People v. Inserra, 4 NY3d 30 (2004) ; Matter of McCormick v. Axelrod, 59 N.Y.2d 574 (1983) ; People v. Carthew, 19 Misc.3d 138(a) (App. Term, 9th & 10th Jud. Dists.2008); People v. Whidbee, 8 Misc.3d 1023A (Kings County 2005). McKinney's Practice Commentaries, P.L. 215.50, p. 443. Penal Law § 215.50(3), with which the defendant was charged, is a charge the People routinely utilize when a defendant violates an order of protection issued by a judge and served upon the defendant. Here, the defendant is being charged with two (2) counts of criminal contempt in the second degree. Despite the defendant's contention that no order of protection was annexed to the complaint, this Court finds same was attached and was filed with the court on the same date the accusatory instruments were filed. The accusatory instruments were not only accompanied by a copy of the Family Court Order of Protection, but were accompanied by a supporting deposition from the complainant-all time/date stamped on November 27, 2013. These documents, compiled together, contain non-hearsay allegations sufficient to establish the charges in that the defendant had knowledge of the order of protection, to wit: he was advised in Court of its issuance and the contents of the Order; that defendant was served with said order, to wit: the Order was personally served in Court upon him; and that there are allegations as to how the order was violated, to wit: the People allege that the defendant admitted he hired a private investigator to install Global Satellite Positioning (GPS) equipment on the complainant's vehicle which allowed him to track where her car was at any moment in time. As such, this Court finds that the essential elements charging the defendant with criminal contempt in the second degree are facially sufficient and that defendant's motion to dismiss must be denied. See, People v. Brandel, 30 Misc.3d 134(a) (App.Term, 2d Dept.2011).
b. Stalking charge:
Defendant's motion to dismiss the accusatory instrument charging the defendant with stalking in the fourth degree in violation of Penal Law § 120.45(1) on the ground that it is legally insufficient is also denied.
A person is guilty of stalking in the fourth degree when he intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person and knows, or reasonably should know, that such conduct is likely to cause reasonable fear of material harm to the physical health, safety or property of such person. P.L. § 120.45(1). Here, the accusatory instrument charging the defendant with stalking states that on the 17th day of October, in the City of Poughkeepsie, County of Dutchess, New York ...,
The defendant intentionally, for no legitimate purpose, engaged in conduct directed at Theresa McGowan that consisted of having Global Positioning Satellite (GPS) equipment installed on Theresa McGowan's red 1999 Ford Explorer. The defendant knew and should have known that his actions were likely to cause fear of material harm to the physical health and safety of Theresa McGowan and her four children (Shea McGowan age 14, Michael Tyrrell Jr. age 3, Kevin McGowan age 12, and Jenna McGowan age 16) in that a current active stay away Order of Protection is in effect against the defendant.
Moreover, the complainant's supporting deposition articulates that the defendant used the GPS system which he had a private investigator install on complainant's vehicle to track her movements and to even have pictures taken of her and her daughter. The complainant confirmed this by looking underneath her car where she observed the magnets used to hold the GPS device in place. These facts sufficiently establish that defendant knew or should have known that his conduct of tracking Ms. McGowan's vehicle (who had an order of protection against the defendant) would likely cause her reasonable fear of material harm to her physical health, safety or property. Based upon the foregoing, this Court finds that the information charging the defendant with stalking provides non-hearsay facts that meet the prima facie requirements for facial sufficiency.
This Court now turns to the remaining forms of relief set forth in the defendant's motion:
3. That branch of the defendant's motion that seeks discovery and inspection is granted to the extent that there exists unanswered discovery demands. The People are reminded of their continuing obligation to comply with Criminal Procedure Law § 240.60.
4. That branch of the defendant's motion that seeks compliance by the People pursuant to Brady v. Maryland, 373 U.S. 83 (1963) is granted, and the People are reminded of their duty to provide the defense all material required pursuant to Brady and its progeny, including material impeachment evidence. Brady v. Maryland, 373 U.S. 83 (1963).
5. That branch of the defendant's motion that seeks to prohibit the People from cross-examining the defendant on all prior convictions or vicious, criminal or immoral acts should the defendant decide to testify on his own behalf, is denied. However, a Sandoval hearing is granted upon consent [Hawlk affirmation, p. 2], and same will be held immediately prior to trial. People v. Sandoval, 34 N.Y.2d 371 (1974). The People are directed to notify the defendant of specific instances of his prior uncharged criminal, vicious, or immoral conduct of which the prosecutor has knowledge, which the prosecutor intends to use at trial for the purposes of impeaching his credibility, immediately prior to trial. C.P.L. § 240.43 ; People v. Ventimiglia, 52 N.Y.2d 350 (1981).
6. That branch of the defendant's motion seeking relief pursuant to People v. Molineux is granted to the extent that the People are directed to comply with the strictures of People v. Molineux, together with the cases descending therefrom, and seek a ruling from this Court prior to presenting any evidence at the trial of this matter of other crimes committed by the defendant as evidence in their case in chief. People v. Molineux, 168 N.Y. 264 (1901).
7.The defendant's request for copies of hearing transcripts to be provided at least seven (7) days prior to the commencement of trial is granted without opposition from the People (Stuart affirmation, ¶ 16), provided that the defendant makes a timely request for transcription of the minutes and prior to the conclusion of the hearing. People v. Sanders, 31 N.Y.2d 463, 467 (1973).8. That branch of the defendant's motion that seeks leave to file additional motions is granted, to the extent that they are filed in accordance with C.P.L. § 255.20.