People v Thievierge

[*1] People v Thievierge 2005 NY Slip Op 51411(U) [9 Misc 3d 1105(A)] Decided on September 9, 2005 City Court Of Watertown Harberson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 9, 2005
City Court of Watertown

THE PEOPLE OF THE STATE OF NEW YORK

against

Tara A. Thievierge



34756



CINDY INTSCHERT, Esq.

Jefferson County District Attorney

175 Arsenal Street

Watertown, New York l360l

By: Aaron Carr, Assistant District Attorney

For the People

JULIE HUTCHINS, Esq.

Jefferson County Public Defender

175 Arsenal Street

Watertown, New York 13601

For the Defendant

James C. Harberson, J.

The defense has moved to dismiss the accusatory instrument charging the defendant under Penal Law 215.50(3) as being facially insufficient because it did not state the conduct of the Defendant "did not involve or grow out of a labor dispute" an exception in the enacting clause the People were required to plead as well as negative based upon People v. Kirkham, 273 AD2d 509(3d Dept. 2000).

The People oppose the motion based upon People v. D'Angelo, 284 AD2d 146 (lst Dept.), Aff'd on other grounds 98 NY2d 733 (2002), where the Appellate Division found that "[t]he reference to labor disputes does not constitute an exception to the statute which must be pleaded . . . and proved by the People, but rather constitutes a proviso, a matter for a defendant to raise as a [*2]defense. . ." (id. P.146).

In People v. Kollender, 169 Misc 995 (1939), Judge Johnson in a tour de force reviewed all pertinent prior authorities on which to base the conclusion:

I think that an examination of those authorities clearly demonstrates

that the following principles are well established as the law of this State:

(1) When a statute contains in and as a part of its enacting clause an

exception or exceptions to the effect that in certain cases, or under

certain circumstances, the offense prohibited by the statute is not

to be considered as having been committed, that constitutes a true

exception which is necessary for the plaintiff or the People in an action

based upon the statute to negative both by pleading and by proof.

(2) Where, however, there is no such exception in the enacting clause

of the statute, or referred to herein, but later in the statute or in a

subsequent statute an exception or exceptions are enumerated,

There is then presented the case of a proviso, rather than an

exception, and the plaintiff or the People bringing action upon

the statute need neither plead the negative of the exception nor

Adduce proof of such negative in order to make a prima facie case. Id. p.998.

See, People v. Smith, 192 Misc 965 (1948), and People v. Bailey, 60 Misc 2d 283 (1969), where the courts cited both definitions as originally stated by the Kollender Court.

In People v. Feiler, 191 Misc 2d 390 (2002), Judge Gross stated that "[I]n determining which view to follow the court notes . . . a plethora of cases that have addressed this issue.. . ." (Id. P. 391) over which the Kirkham and D'Angelo split as to whether the labor law language in P.L. 215.50(3) "must be noted on the face of an accusatory instrument" (id. P. 391). He reviewed People v. Romano, 188 Misc 2d 368 (2001), as well as People v. Luna, NYLJ, 10/26/01, p. 22 Col.2, in which the courts concluded the labor law language in P.L. 215.50(3) (Romano) and in P.L. 240.25 (Luna) was a proviso and ". . .need not be expressed on the face of an accusatory instrument in order that the instrument be found sufficient" (id. P. 394).

The Court has reviewed "the plethora of cases" referred to by Judge Gross including People v. Devinny, 227 NY 397, cited in D'Angelo, Romano and Feiler for the observation that

" 'the requirements of common sense and reasonable pleading' (People v. Devinny, 227 NY397, 401, supra) warrant the treatment as a proviso of the reference to Labor law disputes" (Feiler, supra, p. 146) in P.L. 215.50(3).

The Court is in agreement with the Devinny court opinion that "[a]ttempts to x x x distinguish between exceptions and provisos have resulted on many technicalities and in much subtlety. The two classes of provisions - exceptions and provisos - frequently come close together, and the rule of differentiation ought to be so applied as to comply with the requirements [*3]of common sense and reasonable pleading." Id. P. 401.

After reviewing many of the earlier cases that attempted to "distinguish between exceptions and provisos" (Devinny), this Court must agree these "two classes of provisions. . .

frequently [do] come close together [so] the rule of differentiation [should]. . . comply with the requirements of common sense and reasonable pleading" (id. P,. 401).

The task of the Court, then, when these "two classes of provisions. . . came closely together" making the resolution of whether a proviso or an exception is present, following the "rule of differentiation" based on "common sense and reasonable pleading" (Devinny), can, so far as whether the Labor Law language in P.L. 215.15(3) is a provision or an exception, be found in the case of Harris v. White, 81 N.,Y. 532 (1880).

In Harris v. White, 81 NY 532, the statute declared "all trotting of horse for any bet. . . a. . .misdemeanor. But embodied in the section, not attached to or following it, but making a part of the enacting clause, there is an exception from its denunciation, of such trotting as is expressly allowed by special laws for that purpose" (id. Pps. 538-539).

The Court then said "[I]t will be seen. . ., that this exception is of much importance on this case. . . because of the form and place of it in the sections" (id. P. 539).

The Court explained that so long as the location where one trotted horses "for a bet" allowed such wagering by a special law permitting such conduct ". . . it was not unlawful so to trot a horse. . .at that location (id. P. 545). The Court then ruled "[T]herefore it cannot be said of a trotting of a horse,. . .at some place named.. . . . that it is unlawful, until it is known whether some or more of those special laws do not have the effect at that place" (id. P., 545).

The Court observed that while some of the locations had such "special laws" in place allowing betting or trotting races some of those listed in the complaint did "not appear" to have special laws at those locations "[u]ntil it is shown by proof that there was not, the [defendant's conduct] is not made out to have been illegal" (id. P. 546).

At that point the Court returned to "a thing to which we have already adverted, that this part of the act giving effect to these special laws is embodied in the enacting clause of the act itself; it is an exception from that enacting clause, and not a proviso following it" so, as such '. . . .an exception in a statute must be negatived in pleading" and "[w]here an exception is incorporated in the body of the clause of the statute, he who pleads the clause ought to plead the exception x x x . . . the exception must be negatived" (id,. pps. 546-547).

In this case the statute reads "a person is guilty of criminal contempt. . . when he engages in any of the following conduct: (3) Intentional disobedience or resistance to the lawful process or other mandate of a court except in cases involving or growing out of labor disputes as defined by subdivision two of section seven hundred fifty - three - a of the Judiciary Law."

The Court finds that this statute and the one in Harris v. White are comparable in that what the court outlined about that law and the exception therein can be applied equally to Penal Law section 215.50(3).

The Harris court said that "the part of the act giving effect to . . . special laws" which [*4]allowed wagering or trotting races "is embodied in the enacting clause of the act itself" (id. P. 546) which otherwise prohibited betting on trotting races, that is, "all trotting of horses is illegal, except such as is by special law allowed" (id. P. 548).

So too in the "act" Penal Law section 215.50 wherein it states "a person is guilty of criminal contempt . . . when he engages in ., . . (3) Intentional disobedience or resistance to the lawful process or other mandate of a court except in cases involving or growing out of labor disputes as defined by" Judiciary Law section 753-a(2) "the part of the act giving effect to. . .special laws" which allows "unintentional disobedience or resistance to the lawful process or

other mandate of a court" is also "embodied in the enacting clause of the act itself" (id. P. 546).

Therefore just as "all trotting of horses is illegal, except such as is by special law allowed" (id.p. 548) under the statute at issue in Harris, likewise "all intentional disobedience or resistance to the lawful process or other mandate of a court except such as is by Judiciary Law section 753-a(2)-a "special law" - allowed."

The Court finds, then, that this exception under the labor law "because of the form and place of it in the section [P.L.215.,50(3)]; it is an exception from that enacting clause, and not a proviso following it [and] must be plead and "negatived in pleading" (id. Pps. 546-547).

The Court base on Harris finds that the conclusion of the Kirkham court that the "statutory language must be characterized as an exception rather than a proviso because it excludes certain matters from its scope absolutely . . ." and a failure to "allege the inapplicability of the labor dispute exception" (id. P. 509) renders the accusatory instrument charging the Defendant under P.L. 215.50(3) facially insufficient under CPL 100.40(1).

The Defense motion to dismiss the charge is granted.

This shall serve as the findings and Order of the Court.

Enter:____________

Date:___________

________________________

Hon. James C. Harberson

Watertown City Judge