People v K.W.

[*1] People v K.W. 2018 NY Slip Op 28410 Decided on December 19, 2018 City Court Of Auburn McKeon, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 19, 2018
City Court of Auburn

People of the State of New York,

against

K.W., Defendant.



18-1253



For the Plaintiff:

Hon. Jon E. Budelmann

Cayuga County District Attorney

By: Christopher T. Valdina, Esq.

Chief Assistant District Attorney

95 Genesee Street

Auburn, New York 13021

For the Defendant:

Todd Hunter Sloan, Esq.

2 South Street Suite 212

Auburn, New York 13021
Michael F. McKeon, J.

DECISION

MCKEON, MICHAEL F., J.

Defendant was charged with criminal contempt in the second degree for failing to comply with a subpoena. Defendant moves, among other things, to dismiss the charge on the basis that the accusatory instrument was defective and in the interest of justice. The matter was scheduled for trial on November 29, 2018. Due to the instant motion and the issues raised therein, the trial did not commence and the parties were given an additional opportunity to provide written briefs to the Court.

On May 17, 2018, defendant was personally served with a subpoena commanding her to testify at the May 22, 2018, preliminary hearing in the matter of People v. T.D. The subpoena was issued by the Cayuga County District Attorney and commanded defendant to appear before the "Special Sessions Court of the City of Auburn" at 157 Genesee Street in the City of Auburn. [*2]Defendant's connection to the T.D. matter was as the victim in a domestic violence incident which resulted in multiple charges against T.D.

Initially, defendant has raised in oral argument detailed issues which expand upon her claim in her written motion papers that the subpoena was defective. The People object to this Court's consideration of any arguments not contained in defendant's written papers. Although a court cannot generally dismiss based on grounds not raised by the moving party, the court is not restricted to only those issues raised in writing. In those cases where additional issues are raised in oral argument, the court may consider these issues so long as the People are given the opportunity to address such issues prior to dismissal (see eg People v. Fuller, 145 AD3d 1086 (2d Dept 2016), lv denied 28 NY3d 1184 (2017); People v. Lashua, 264 AD2d 951 (3d Dept 1999); People v. Santmyer, 255 AD2d 871 (4th Dept 1998), lv denied 93 NY2d 902 (1999). Here, the People have been given an additional opportunity by the Court to address the issues raised by defendant in oral argument and, thus, the Court may consider those issues in determining defendant's motion.

Of relevance to the charge here, a person is guilty of criminal contempt in the second degree when he or she engages in intentional disobedience or resistance to the lawful process or other mandate of a court (Penal Law §215.50(3)). "[C]riminal contempt is established when there is a clear and definite order of the court, the condemnor knows of the order, and [he or she] willfully disobeys it" (Holtzman v. Beatty, 97 AD2d 79 (2d Dept 1983)).

Defendant was personally served with a subpoena by a police officer who signed an affidavit of service. She does not dispute her receipt of the subpoena or the manner in which it was served. By such service, knowledge of the order was imputed to defendant.[FN1] It is also undisputed that defendant failed to appear at the preliminary hearing. However, she argues that she was unaware of the consequences of failing to appear and she feared for her safety.

What is at issue before the Court is whether the subpoena served upon defendant was a clear and definite order of the court that was willfully violated such that defendant should be subject to the severe remedy of the charge of criminal contempt in the second degree. The statutes provide minimal guidance with regard to subpoenas. Criminal Procedure Law §610.20 provides that a district attorney, as an officer of the criminal court where a criminal action is pending, may issue a subpoena of such court, subscribed by him or her, to any person he or she is entitled to call as a witness. Although defendant takes issue with the fact that the subpoena was not signed by the district attorney, and thus not "subscribed," a unique identifying signature is not required. The subpoena states the name, in typed capital letters, and the title of the district attorney at the bottom of the subpoena. Such is sufficient to constitute the signature of the district attorney (see General Construction Law §46).

Defendant further argues that the subpoena is defective in that it failed to warn her that disobedience thereof could result in criminal liability. In support of her motion, defendant provides a copy of the form subpoena generated by the New York State Office of Court Administration, which includes the language "failure to comply with this subpoena shall deem [*3]you guilty of contempt of court." Similar language is conspicuously absent from the subpoena at issue here. Instead, the subpoena states that defendant is to contact the assistant district attorney "upon receipt" and is "commanded to appear...as a witness in a criminal action prosecuted by the People of the State of New York...."

There is no statutory requirement that the type of subpoena at issue here contain a warning of possible criminal penalties before such penalties may be imposed. This is curious in that other statutes, such as Penal Law §210.45 (making a punishable false written statement), Judiciary Law §756 (application to punish for civil contempt), and Civil Practice Law and Rules §5223 (post-judgment disclosure) require some forewarning of the possibility of punishment. Likewise, the civil rules for city courts such as this one require every subpoena providing for the examination of a judgment debtor or other person to include, in addition to the language in CPLR §5223, in bold type: "This subpoena or process (as the case may be) requires your personal appearance at the time and place specified. Failure to appear may subject you to fine and imprisonment for contempt of court" (22 NYCRR §210.39). Such warnings are regularly seen on criminal complaints and accompanying affidavits, orders of protection, and criminal and civil subpoenas. Even witnesses appearing before a grand jury who have been granted immunity must be apprised of the right to immunity before a criminal contempt conviction can be brought for the refusal to testify (see People v. Nagel, 78 AD3d 1636 (4th Dept 2010)).

Prior to her arrest, defendant signed an affidavit stating that her ex-boyfriend T.D. committed verbal threats and physical acts of violence against her, including grabbing her throat and threatening to kill her. That statement included the warning that false statements made therein are punishable pursuant to Penal Law §210.45. As a result of the complaint, T.D. was arrested and charged with ten penal law offenses. A temporary order of protection was issued protecting the instant defendant. As the alleged perpetrator of crimes against defendant, T.D. was advised in the standard form order of protection that his failure to obey the order may subject him to mandatory arrest and criminal prosecution which may subject him to incarceration for up to seven years for contempt of court. Such language was typed in bold, capital letters, clearly forewarning him of the risk of violating the order.

Ironically, as the alleged victim of an incident of domestic violence, defendant has not been afforded the same notice or warning as her alleged abuser. Had defendant been a judgment debtor in a civil manner, she would have been required to be so forewarned. If she was the perpetrator in a domestic violence case, she would have been so forewarned. And if she had been the subject of an application to punish for civil contempt she would have been so forewarned. Yet defendant, as an alleged victim of domestic violence, already at risk of repercussions for speaking out about the abuse, and without any requirement that she be represented by counsel, was not afforded the same notice as her alleged abuser.

The Court recognizes that ignorance of the law is no excuse. The Court also recognizes that, in certain cases, a court order need not warn of the risk of disobedience (see eg Keator v. Keator, 211 AD2d 987 (3d Dept 1995)(failure to warn of the risk of incarceration)(compare Stupart v. New York City Transit Authority, 2017 NY Misc. Lexis 5582 (Sup Ct, Nassau County 2017)(better practice to include a warning)). However, "[w]here the terms of an order are vague and indefinite as to whether or not particular action by a party is required, then, of course, [he or she] may not be adjudged in criminal contempt for the willful failure to take such action" [*4](Holtzman, 97 AD2d at 82; see also People v. Forman, 145 Misc 2d 115 (Crim Ct, New York County 1989); People v. Balt, 34 AD2d 932 (1st Dept 1970)).

Any ambiguity in the subpoena at issue here must be resolved in the defendant's favor (see People v. Roblee, 70 AD3d 225 (3d Dept 2009)). Due process and fundamental fairness require that defendant, as a victim of a crime, be alerted to the mandatory nature of her presence before the Court. Here, the subpoena not only fails to afford defendant any notice that her failure to comply could result in criminal charges, it contains the unauthorized requirement that she contact the assistant district attorney upon receipt of the subpoena (see generally In re Subpoenas, 2004 NYLJ LEXIS 3615 (Sup Ct, New York County 2004); People v. Neptune, 161 Misc 2d 781 (Sup Ct, Kings County 1994)). Certainly, a witness may cooperate with the district attorney's office in advance of a proceeding. However, there is no requirement that he or she do so.

Additionally, the subpoena contains the wrong court name. The preliminary hearing for the matter of People v. T.D. was called before Auburn City Court. There is no Special Sessions Court of the City of Auburn. Although the address on the subpoena was correct, the failure to command defendant to the proper court further renders the subpoena defective. "In the absence of a specific valid order that has been disobeyed, there can be no contempt" (Holtzman, 97 AD2d at 82).

With regard to defendant's fear of testifying, the Court recognizes that generalized fear may not be an excuse for failing to testify (see People v. Santana, 16 AD3d 346 (1st Dept 2005), lv denied 5 NY3d 794 (2005); People v. Clinton, 42 AD2d 815 (3d Dept 1973)). However, the penal law recognizes that certain emergency circumstances may render an otherwise criminal act lawful (see Penal Law §35.05; see also People v. Joy, 133 Misc 2d 779 (Sup Ct, Monroe County 1986)). Such emergency circumstances include measures necessary to avoid imminent public or private injury which is about to occur through no fault of the actor and which is of such gravity that the benefit of avoiding such injury outweighs any injury sought to be prevented (see Penal Law §35.05(2); see also Fuhrer v. Hynes, 72 AD2d 813 (2d Dept 1979)). In most cases, fear alone will not be enough. The criminal justice system relies on the necessity of witnesses to testify in criminal matters and witnesses may be compelled to do so even when fear exists (see generally People v. Gumbs, 124 Misc 2d 564 (Sup Ct, New York County 1984)). However, when such fear arises out of the need to avoid imminent physical injury, any bright-line rule with regard to compelling testimony must be set aside.

In the instant case, defendant has submitted a sworn affidavit stating that T.D. threatened her with serious bodily harm were she to testify against him. Despite her efforts to block him from contacting her, she alleges that he continued to do so even while incarcerated. The People argue that they could find no proof of T.D.'s attempts to contact defendant and, in any event, her fear did not outweigh the necessity of her testimony at the preliminary hearing for T.D. While not indicative of defendant's state of mind on the date of the preliminary hearing, it should be noted that subsequent to defendant's arrest, T.D. was arrested twice more in this court alone for criminal contempt in the second degree for contacting defendant via various social media applications. At the time of his most recent arrest, there were orders of protection in place out of three different courts. In fact, his arrest in the related matter before this court included a charge of criminal contempt in the first degree for violating orders of protection out of two other courts.

Defendant's fear was not a generalized subjective fear. It was based on threats made by defendant shown not only through her sworn affidavit, but by T.D.'s past acts, as well as ones which occurred subsequent to defendant's arrest. Defendant, as a victim of domestic violence and under the circumstances here, had a justifiable fear for not appearing at the preliminary hearing before her alleged abuser. Such constituted an emergency situation that outweighed the benefit to the People of her testimony and rendered her actions non criminal.

The People's allegation that defendant's failure to appear hindered the prosecution against T.D. is disingenuous. "It has been estimated that there are uncooperative witnesses in 80-90% of domestic violence cases. . . and that prosecutors must proceed without the complainant as often as 64% of the time" (see People v. Barba, 60 Misc 3d 1074 (Sup Ct, Queens County 2018)(internal citations omitted)). The People were not without remedy here. Under the circumstances, through his intimidation of defendant, T.D.'s right to assert the rule against hearsay may have been forfeited (see eg People v. Brooks, 2018 NYLJ LEXIS 2158 (Sup Ct, Queens County 2018); People v. Roby, 58 Misc 3d 1227[A], 2018 NY Slip Op 50284[U] (Sup Ct, New York County 2018); Matter of Board of Examiners of Sex Offenders of the State of New York v. D'Agostino, 130 AD3d 1449 (4th Dept 2015); People v. Nelson, 156 AD3d 1112 (3d Dept 2017), lv denied (2018)(use of close relationship to pressure witness); People v. Encarnacion, 87 AD3d 81 (1st Dept 2011), lv denied 17 NY3d 952 (2011)(misconduct includes intimidation and the use of a relationship to improperly procure a witness' silence); People v. Byrd, 51 AD3d 267 (1st Dept 2008), lv denied 10 NY3d 956 (2008); see generally People v. Dubarry, 25 NY3d 161 (2015)).

Under the unique circumstances here, fundamental fairness requires the dismissal of the charge for the above reasons. Were the Court to hold otherwise, defendant, as an alleged victim of domestic violence, would effectively be afforded less protection under the law than her alleged abuser.

Accordingly, Defendant's motion to dismiss the charge of criminal contempt in the second degree is hereby granted and the charge dismissed.

This constitutes the Decision and Order of the Court.

________________________________

Hon. Michael F. McKeon

City Court Judge

December 19, 2018 Footnotes

Footnote 1:As defendant does not dispute service or challenge the affidavit of service here, the People's reliance on this Court's decision in People v. White, 22 Misc 3d 292 (Auburn City Ct 2008), is misplaced.