People v CAMPBELL (BRIAN)

[*1] People v CAMPBELL (BRIAN) 2005 NY Slip Op 50064(U) Decided on January 26, 2005 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2003-1411 Q CR

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

against

BRIAN CAMPBELL, Appellant.

Appeal by defendant from a judgment of the Criminal Court, Queens County (M. Aloise, J.), rendered September 30, 2003, convicting him, after a jury trial, of criminal contempt in the second degree (Penal Law § 215.50 [3]), and imposing sentence.

Judgment of conviction unanimously affirmed.

The information's failure to allege the inapplicability of the labor disputes exemption did not render the instrument jurisdictionally defective (People v D'Angelo, 284 AD2d 146 [2001], affd on other grounds 98 NY2d 733 [2002]; People v Dudley, 289 AD2d 503 [2001], lv to appeal denied 97 NY2d 753 [2002]; contra People v Crandall, 306 AD2d 748, 750 [3d Dept 2003]; People v Kirkham, 273 AD2d 509 [3d Dept 2000]). Unlike a true exception which prohibits enforcement in a defined class of cases, and which, as an element of the offense, the People must plead and prove inapplicable (e.g. People v Rodriguez, 68 NY2d 674 [1986] [revg on dissent of Lazer, J., 112 AD2 337, 343-348 (1985)]), the herein provision does not, on its face, exhaustively "negative" the cases excluded (People v Devinny, 227 NY 397, 401 [1919]) but merely incorporates by reference a lengthy inventory of exclusions from prosecution set forth in Judiciary Law § 753-a. We conclude that said exemptions are provisos which should be "raise[d] in defense, either under the general issue or by affirmative defense" (People v Kohut, 30 NY2d 183, 187 [1972]; People v Sylla, ___ Misc 3d ___, 2005 NY Slip Op _______, decided herewith; see McKinney's Cons Laws of NY, Book 1, Statutes § 211; Rowell v Janvrin, 151 NY 60, 68 [1896]). [*2]

Exemptions provided entirely without the statute they qualify are generally deemed provisos (People v Kohut, 30 NY2d at 187 ["(W)hen the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense"] [emphasis supplied]), and where the exempted class of cases is contained entirely within the statute so qualified they are generally considered exceptions (compare People v Hogabone, 278 AD2d 525 [2000], with People v Washington, 209 AD2d 162 [1994]). However, mindful of the dictum that "exceptions and provisos . . . frequently come closely together" (People v Devinny, 227 NY at 401), in the interests of common sense and reasonable pleading, "[t]he ancient distinction between 'exception' and 'proviso'. . . [should] not be so mechanically applied that substance yields to form and the burden of pleading and proof is determined solely by the accidental disposition in which a draft[er] casts [the] clauses" (People v Odermatt, 39 Misc 2d 217, 218 [Dist Ct, Nassau County 1963]). Thus, it is not conclusive that the statute invokes the exemption (e.g. People v Bull, 5 Misc 3d 39, 41 [App Term, 1st Dept 2004]). Rather, the issue is whether the exemption on its face exhausts the limitations on enforcement, and if not, whether the result fairly apportions the burden of proof and comports with rational pleading requirements, for example, that the accusatory instrument be not so "drawn out to intolerable lengths" (227 NY at 401) as to defy reason and common sense (see People v Konieczny, 2 NY3d 569, 575 [2004]; People v Casey, 95 NY2d 354, 360 [2000]). Here, the exemption, invoked only by reference, provides no information as to the enforcement limitations as set forth in a nearly 300-word compilation located outside the Penal Law (see Judiciary Law § 753-a). It would be unduly burdensome to require that the People allege the absence of the numerous exclusions from prosecution enumerated therein, and if they need not allege the whole, there is little utility in a rule requiring that they allege the exemption as conclusorily referenced in the statute. It suffices that the People plead and prove a basis for the charge independent of a labor dispute as defined in Judiciary Law § 753-a. This result comports with the historical formulation of the exception/proviso distinction, provides a
statutory construction that properly allocates the burden of proof, and satisfies the constitutional and common sense requirements of fair pleading.

We have considered defendant's remaining contentions and find them without merit (People v Gibbs, 59 NY2d 930, 932 [1983]; People v Orbaker, 302 AD2d 977 [2003]; People v Demchenko, 259 AD2d 304 [1999]; People v Clemins, 158 AD2d 854, 855 [1990]).
Decision Date: January 26, 2005