People v Schmitt

[*1] People v Schmitt 2009 NY Slip Op 52605(U) [26 Misc 3d 1201(A)] Decided on November 10, 2009 Supreme Court, Bronx County Best, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 10, 2009
Supreme Court, Bronx County

The People of the State of New York

against

David Schmitt, Defendant.



27882C-2009

Miriam R. Best, J.

Under former docket number 2009BX029315, which was previously consolidated into docket number 2009BX027882, defendant is charged with two counts of Criminal Contempt in the Second Degree (PL § 215.50[3]). He now moves this court to dismiss the count of Criminal Contempt in the Second Degree alleged in the second time and place of occurrence (TPO No. 2)[FN1], pursuant to CPL § 170.30(1)(a). For the reasons that follow, the motion to dismiss is denied.

The Motion to Dismiss for Facial Insufficiency

The Parties' Contentions

The superseding information alleges in relevant part that on June 12, 2009, at approximately 8:35 AM, inside [an address in] Bronx County:

Deponent [Monica Ghiotti] is informed by [deponent's daughter] that at the above time and place, informant received a call from defendant and defendant stated in sum and substance: DOES YOUR MOM HAVE A BOYFRIEND? WHO IS EDDIE? I SAW ON HER AIM THAT SHE WAS OUT WITH EDDIE.

Deponent is further informed by the informant that informant has known defendant for approximately five years and that informant has spoken to defendant over the phone on numerous occasions and recognized the voice over the phone to be that of DAVID SCHMITT.

Deponent further states that she is in possession of a valid order of protection issued by the honorable Judge Mendez of the Bronx Criminal Court on April 29, 2009, and said order directs defendant in pertinent part to refrain from communication or any other contact by mail, telephone, e-mail, voice mail, or other means with deponent. Deponent further states that defendant had [*2]knowledge of the aforementioned order of protection, in that said order indicates defendant was present in court when said order was issued.

Defendant argues that the factual allegations establish only that defendant spoke with the Ms. Ghiotti's daughter and inquired about whom Ms. Ghiotti was dating. Defendant argues that these allegations are insufficient to establish that he intentionally disobeyed the mandate of the court, inasmuch as the order of protection directed him to refrain from any contact with Ms. Ghiotti, not her daughter. He argues that the allegations are therefore insufficient to establish reasonable cause to establish that he committed the crime of Criminal Contempt in the Second Degree.

The People respond that the factual allegations contained in the complaint provide facts of an evidentiary character which tend to support the charge and provide reasonable cause to believe that defendant committed the offense. The People argue that the relevant order of protection directed defendant to refrain from communication or any other contact with Ms. Ghiotti. Therefore, the allegation that on June 12, 2009, defendant called Ms. Ghiotti's residence and her daughter "happened to pick up the telephone" sufficiently establishes that defendant violated the order of protection.

Analysis

To be sufficient on its face, a misdemeanor information must contain factual allegations of an evidentiary character demonstrating reasonable cause to believe the defendant committed the offenses charged. CPL §§ 100.15(3); 100.40(1)(b); 70.10. These facts must be supported by non-hearsay allegations which, if true, establish every element of the offense. CPL § 100.40(1)(c). An information which fails to satisfy these requirements is jurisdictionally defective. CPL §§ 170.30 and 170.35; People v. Alejandro, 70 NY2d 133, 136-37(1987); People v. Dumas, 68 NY2d 729 (1986). "So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading." People v Casey, 95 NY2d 354, 360 (2000) (citations omitted). The facts alleged in the accusatory instrument need not rise to the level of establishing guilt beyond a reasonable doubt. People v. Kalin, 12 NY3d 225, 230 (2009).

To make out a charge of criminal contempt, the "accusatory instrument must allege that a lawful order of the court clearly expressing an unequivocal mandate was in effect, that defendant had knowledge of its provisions, and that the defendant intentionally disobeyed it" (People v.Whidbee, 8 Misc 3d 1023(a) [Crim Ct, Kings County 2005]). Defendant's knowledge of the existence and terms of the order of protection can be established by showing that defendant was advised, orally or in writing, of the contents of the order and the conduct prohibited. People v. McCowan, 85 NY2d 985, 987 (1995).

Here, the order of protection clearly indicates that defendant was present in court when the order of protection was issued.[FN2] Moreover, "defendant's name on the signature line sufficiently [*3]alleges that defendant received and read the terms of the order of protection" (People v. Inserra, 4 NY3d 30, 33 [2004]). At the pleading stage, that is sufficient to establish defendant's knowledge of the order and its terms.

The terms of the order of protection clearly and unequivocally state that defendant must "refrain from communication or any other contact by mail, telephone, e-mail, voice-mail, or other means with Monica Ghiotti." Defendant's claim that the factual allegations are insufficient because the order of protection did not direct him to refrain from contacting Ms. Ghiott's daughter misses the mark. First, the address of the alleged incident is [redacted]. In TPO #1 of the information, Ms. Ghiotti affirms that [that address] is her residence. Accordingly, the allegations in TPO #2, that Ms. Ghiotti's daughter received a phone call from defendant at Ms. Ghiotti's residence, coupled with the allegations that defendant asked about Ms. Ghiotti, and that a valid order of protection was in effect directing defendant to refrain from any contact with Ms. Ghiotti, are sufficient to establish prima facie evidence that he intentionally disobeyed a lawful order of the court. See People v. Brown, 61 AD3d 1007 (3d Dept 2009) (conviction for Criminal Contempt in the First Degree reduced to Criminal Contempt in the Second Degree, where evidence established that defendant telephoned victim's home in violation of order of protection, even though defendant spoke only to victim's husband); People v. Dewall, 15 AD3d 498 (2d Dept) (conviction for Criminal Contempt in the First Degree reduced to Criminal Contempt in the Second Degree, where defendant went to victim's home in violation of order of protection, even though victim was not at her home at that time), lv denied, 5 NY3d 787 (2005). Accordingly, defendant's motion to dismiss the charge of Criminal Contempt in TPO #2 is denied.

Conclusion

For the reasons set forth above, defendant's motion to dismiss the Criminal Contempt charge in TPO #2 is denied.

This opinion constitutes the decision and order of the court.

Dated:Bronx, New York

November 10, 2009

_______________________________

Miriam R. Best

Acting Justice of the Supreme Court Footnotes

Footnote 1: In her affirmation in support of the motion to dismiss the Criminal Contempt charge, defense counsel refers to the "May 3, 2009" allegations. However, the substance of defendant's motion clearly relates to the allegations contained in TPO #2 of the information, which allegedly took place on July 12, 2009.

Footnote 2: The order of protection that the People served and filed with the superseding information was not the order that defendant allegedly violated, but for the reasons that follow, this error is immaterial. The original order of protection issued by Judge Mendez on April 29, 2009 was to remain in effect until June 16, 2009; it was signed by defendant and is in the Court's own files; and the Court takes judicial notice of it. Also, the order of protection that the People did serve and file was issued by Judge Adler on May 6, 2009, was also to remain in effect until June 16, 2009, and was also signed by defendant. Thus, even if Judge Mendez's order were not before the Court, the People could seek to amend the superceding information to conform to Judge Adler's order, which was itself in effect at the time of TPO #2. Finally, defense counsel has not raised any issue with respect to this discrepancy.