People v Nakouzi
Annotate this CaseDecided on April 12, 2011
Criminal Court of the City of New York, Kings County
People of the State of New York,
against
Richard Nakouzi, Defendant(s).
2010KN077156
Robert D. Kalish, J.
Upon the submitted papers, the Defendant's motion to dismiss the charge of Penal Law 215.50 - Criminal Contempt in the Second Degree for lack of jurisdiction is denied as follows:
In the instant criminal action, the Defendant, Richard Nakouzi is being charged with crimes stemming from two separate times and places of occurrence ("TPO"s):
On the first TPO, the Defendant is being charged with violating Penal Laws §§ 215.50 - Criminal Contempt in the Second Degree (Class A Misdemeanor); 240.25 - Harassment in the First Degree (Class B Misdemeanor) stemming from an incident that allegedly occurred on September 19, 2010 at approximately 8:00 p.m. at 105 Lefferts Place in Kings County.
On the second TPO, the Defendant is being charged with violating Penal Laws §215.50 - Criminal Contempt in the Second Degree (Class A Misdemeanor) stemming from an incident that allegedly occurred on or about October 12, 2010 at approximately 5:30 p.m. at 151-20 Jamaica Avenue in Queens County.
The Charges on both TPOs stem in part from the Defendant's alleged violation of a full order of protection issued by the Kings County Criminal Court on March 3, 2009 that was in effect until March 2, 2011. The Defendant now moves to dismiss the charge of Penal Laws §215.50 stemming from the second TPO on the grounds that this Court lacks jurisdiction over said charge because it is based upon the Defendant's alleged violation of the order of protection in Queens County.
Parties' Contentions
The Defendant argues that the Kings County Criminal Court does not have jurisdiction over the charge of Penal Law §215.50 stemming from the second TPO, because the Defendant allegedly violated the order of protection outside of Kings County. The Defendant argues that the Kings County Criminal Court does not have jurisdiction over the instant criminal action [*2]pursuant to CPL 20.20(2)(c) because there is no "concrete identifiable injury to Kings County" associated with the Defendant's alleged crime on the second TPO.
In opposition, the People argue that when an order of protection issued in Kings County is violated, the Kings County governmental process is harmfully affected regardless of where the violation occurred. Therefore, the Court has jurisdiction over the charge stemming from the second TPO pursuant to CPL 20.40(2)(c)
CPL 20.40(2)(c) reads as follows:
Geographical jurisdiction of offenses; jurisdiction of counties
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 pursuant to section 20.20, committed either by his own conduct or by the conduct of another for which he is legally accountable pursuant to section 20.00 of the penal law, 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
CPL 20.10(4) defines the phrase "particular effect of an offense" as follows:
Geographical jurisdiction of offenses; definitions of terms
4. "Particular effect of an offense." When conduct constituting an offense produces consequences which, though not necessarily amounting to a result or element of such offense, have a materially harmful impact upon the governmental processes or community welfare of a particular jurisdiction, or result in the defrauding of persons in such jurisdiction, such conduct and offense have a "particular effect" upon such jurisdiction.
The Court of Appeals has stated that CPL 20.40(2)(c) plainly requires "a harm to the prosecuting county" which is distinguished from a harm to New York City as a whole and/or "a city-wide governmental agency that happens to have an office in the county" (See Taub v. Altman, 3 NY3d 30, 37 (NY 2004)). The Court of Appeals has also stated that one example "of perceptible, materially harmful impacts on counties where the offensive conduct has not occurred" specifically includes "the violation of an order of protection issued in a particular county, even if the conduct violating the order occurred elsewhere" (See Taub v. Altman, 3 NY3d 30, 36 (NY 2004) citing People v. Ortega, 152 Misc 2d 84 (NY City Crim Ct New York County 1991)).
CPL 530.12 - Protection for victims of family offenses, give the Court the authority to issue temporary orders of protection in pending criminal actions charging "any crime or violation between spouses" including orders of protection requiring the Defendant to stay away from any designated witness complainant. By its plain language, the purpose of a temporary order of protection issued pursuant to CPL 530.12 is to protect the victims of family offenses during the course of the criminal action. CPL 530.12 (1)(a) - (g) lists the restrictions that the court can place upon the Defendant pursuant to an order of protection and the criteria to be applied by the court to determine if said restrictions are necessary. There is no indication within [*3]the statutory language of 530.12 that violations of an order of protection can only be prosecuted within the county where the violation occurred nor that the protections created by an order of protection are in any way contingent upon where the violation specifically occurred. Further, it would not be in keeping with the purpose of a temporary order of protection, to protect the victims of family offenses pending trial, if the court did not have jurisdiction over violations of the order of protection that allegedly occurred in other counties.
Therefore, the Court finds that the Defendant's alleged violation of a temporary order of protection issued by the Kings County Criminal Court pursuant to CPL 530.12 has a "particular effect" upon Kings County as defined in CPL 20.10(4) by having a "materially harmful impact upon the governmental processes or community welfare" of Kings County. As such, the Court has jurisdiction in the instant criminal action as to the charge of Penal Laws §215.50 stemming from the second TPO on or about October 12, 2010 at approximately 5:30 p.m. at 151-20 Jamaica Avenue in Queens County.
Accordingly, the Defendant's motion to dismiss the charge of Penal Laws §215.50 stemming from the second TPO for lack of jurisdiction is hereby denied in its entirety.
The foregoing constitutes the Order and Decision of the Court.
_________________________________________________________________________
DateHON. Robert D. Kalish
Judge, Criminal Court
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