People v Kajtazi
Annotate this CaseDecided on June 3, 2016
Criminal Court of the City of New York, Bronx County
The People of the State of New York, Plaintiff,
against
Biba Kajtazi, Defendant.
2016BX001850
Appearances of Counsel
The People — Darcel D. Clark, District Attorney, Bronx County by Jesse Weinstein, Assistant District Attorney
Defendant — Law Office of David A. Adhami by David A. Adhami, Esq.
Armando Montano, J.
Defendant is charged with one count of Criminal Contempt in the Second Degree (PL § 215.50[3]) stemming from a violation of an order issued by the Hon. Wilma Guzman in City of New York v. Nike & Palina Enterprises, Inc., et al., index no.: 251631/15.
Defendant moves for an order 1) dismissing the information as facially insufficient; 2) suppressing any and all statements taken from defendant, or in the alternative, granting a hearing for findings of fact and conclusions of law (Huntley/Dunaway); and 3) granting defendant the right to make additional pretrial motions and the right to amend and/or supplement this motion if made necessary or appropriate by the People's future disclosure.
The factual allegations in the complaint, sworn to by PO Luis Maldonado, read as follows:
Deponent states that, [on or about January 12, 2016 at approximately 8:21 PM inside of 585 East 189 Street, County of the Bronx, State of New York], the defendant was operating Howl at the Moon Grill and Bar, a commercial establishment.Deponent further states that the Honorable Wilma Guzman reinstated a closing order on January 11, 2016, (index No.251631/15) and said order directs the defendant, in pertinent part, to refrain from using the subject premises for any purpose whatsoever and further directs that said premises be closed.Deponent further states that defendant had knowledge of the aforementioned closing order, in that deponent was present in court during the hearing on January 11, 2016.On February 17, 2016, the People filed with the court and served upon defense counsel a statement of readiness along with uncertified copies of the order dated January 11, 2016 ("the closing order"), referenced in the complaint, and an order to show cause signed by Judge Guzman on December 10, 2015 ("the OSC").
Defendant argues that the complaint must be dismissed as facially insufficient as it fails to comport with the requirements of CPL §§ 100.15(3) and 100.40(1) by relying on hearsay and conclusory allegations. Defendant contends that Officer Maldonado was not present in the court room on January 11, 2016 when Judge Guzman issued the closing order, as alleged in the complaint. Since the complaint is devoid of any facts to establish the basis of the deponent officer's knowledge of the closing order, defendant avers that Officer Maldonado's allegations about the issuance and terms of the closing order are hearsay. Defendant also notes the absence of any allegation indicating that he was ever served with either the closing order or the OSC. Without proof of service, defendant contends that the People have failed to establish his knowledge of the closing order. Finally, defendant contends that the deponent officer lacked probable cause to arrest him and consequently, the charge should be dismissed.
In opposition, the People argue that the complaint is facially sufficient in that it provides adequately detailed facts of an evidentiary nature to support each and every element of the offense charged. The People point out that the complaint alleges that 1) Judge Guzman issued an order on January 11, 2016 unequivocally directing defendant to refrain from the using premises known as 585 East 189th Street in Bronx County ("the subject premises") for any purpose; 2) defendant was aware of the closing order and its contents because he was present in court the day it was issued; and 3) defendant intentionally violated the closing order by operating the subject premises on January 12, 2016. The People maintain that these allegations are specific enough to provide suitable notice to defendant so that he can prepare a defense to the offense charged.
The People further argue that whether or not Officer Maldonado was present in court when the closing order was issued has no bearing on the central issue of whether defendant had knowledge of the closing order. Nonetheless, the People maintain that Officer Maldonado became informed of the contents of the closing order when it came into his possession. Moreover, Officer Maldonado has personal knowledge that defendant violated the court order when he viewed firsthand that the subject premises remained open the day after the closing order was issued. Based on the foregoing, the People contend that defendant's motion to dismiss should be denied in its entirety.
It is well settled that an accusatory instrument must contain facts of an evidentiary nature that support or tend to support the crimes charged (CPL § 100.15[3]; People v. Dumas, 68 NY2d 729 [1986]) and contain non-hearsay allegations that establish, if true, every element of the crimes charged (CPL § 100.40[1][c]). Further, an accusatory instrument must provide reasonable cause to believe that the defendant committed the crimes charged. CPL § 100.40(1)(b); Dumas, 68 NY2d 729. Reasonable cause to believe that a defendant committed the crimes charged "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL § 70.10. "In order for the reasonable cause standard to be met, the factual portion of the accusatory instrument must describe conduct that constitutes the crime charged." People v. Hightower, 18 NY3d 249, 254 (2011).
In reviewing an accusatory instrument for facial sufficiency, the court must assume the truth of the factual allegations and consider all favorable inferences drawn therefrom. CPL §§ 100.40 and 100.15; People v. Mellish, 4 Misc 3d 1013(A) (Crim Ct, NY County 2004). The [*2]facts alleged need only establish the existence of a prima facie case, even if those facts would be insufficient to establish guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103 (1986). "The law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefore be sufficiently alleged." People v. Sylla, 7 Misc 3d 8, 10 (App Term, 2d Dept. 2005). As such, "[s]o 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).
A person is guilty of criminal contempt in the second degree when he or she intentionally disobeys or resists the lawful process or other mandate of a court. PL § 215.50(3). "It is well settled that criminal contempt is established when there is a clear and definite order of the court, the contemnor knows of the order, and he wilfully disobeys it." Holzman v. Beatty, 97 AD2d 79, 82 (2d Dept. 1983). Therefore, in order for the information charging PL § 215.50(3) to be facially sufficient, it must set forth non-hearsay factual allegations which establish: 1) the existence of lawful order in effect at the time of the violation; 2) that the defendant was aware of the order; 3) that the defendant intentionally disobeyed the order; and 4) the manner in which the defendant disobeyed the order. People v. Bendter, 184 Misc 2d 374 (Crim Ct, Kings County 2000).
Assuming the truth of the factual allegations, this court finds that the offense charged is inadequately pled because the complaint fails to establish that defendant had knowledge of the closing order. The People are under the mistaken belief that the complaint alleges that defendant had knowledge of the closing order because he was present in court when the order was issued. However, that is not what is set forth in the complaint. In actuality, the complaint alleges that defendant had knowledge of the closing order because the deponent, Officer Maldonado, was present in court during a hearing held on January 11, 2016. While Officer Maldonado's presence in the courtroom demonstrates his firsthand knowledge that the closing order was issued and in effect, there is no indication whatsoever in the complaint that defendant was also in the courtroom when the closing order was issued. Since the complaint fails to allege that defendant was present in court when the closing order was issued, it fails to establish that defendant had knowledge of the closing order. Therefore, the complaint must be dismissed as facially insufficient.
This court finds defendant's remaining arguments to be without merit.
Accordingly, defendant's motion to dismiss the accusatory instrument as facially insufficient is granted. This court directs sealing to be stayed for thirty (30) days from the date of receipt of this decision and order. The People are granted leave to move to amend or otherwise cure the defects in the accusatory instrument consistent with CPL §§ 30.30 and 170.30. Should the People file a facially sufficient information, defendant may renew the
remaining branches of the instant motion.
This constitutes the decision and order of this court.
Dated: June 3, 2016
Bronx, New York
Hon. Armando Montano
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