People v Moses (Melanie)

[*1] People v Moses (Melanie) 2020 NY Slip Op 50399(U) Decided on March 13, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 13, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2017-289 Q CR

The People of the State of New York, Respondent,

against

Melanie Moses, Appellant.

New York City Legal Aid Society (Arthur H. Hopkirk of counsel), for appellant. Queens County District Attorney (John M. Castellano, Johnnette Traill and Kathryn E. Mullen of counsel), for respondent.

Appeal from a judgment of the Criminal Court of the City of New York, Queens County (Gia L. Morris, J.), rendered January 10, 2017. The judgment convicted defendant, upon her plea of guilty, of criminal contempt in the second degree, and imposed sentence.

ORDERED that the judgment of conviction is affirmed.

After waiving prosecution by information, defendant pleaded guilty to the charge of criminal contempt in the second degree (Penal Law § 215.50 [3]). On appeal, defendant challenges the facial sufficiency of the accusatory instrument.

"A valid and sufficient accusatory instrument is a nonwaivable jurisdictional prerequisite to a criminal prosecution" (People v Case, 42 NY2d 98, 99 [1977]; see People v Dumay, 23 NY3d 518, 522 [2014]; People v Dreyden, 15 NY3d 100, 103 [2010]). Thus, the facial insufficiency of an accusatory instrument constitutes a jurisdictional defect which is not forfeited by a defendant's guilty plea (see Dreyden, 15 NY3d at 103; People v Konieczny, 2 NY3d 569, 573 [2004]). Here, since defendant expressly waived the right to be prosecuted by information, the accusatory instrument charging her solely with a violation of Penal Law § 215.50 (3) must be evaluated under the standards [*2]that govern a misdemeanor complaint (see Dumay, 23 NY3d at 524; see also CPL 100.15; 100.40 [4]; People v Dumas, 68 NY2d 729, 731 [1986]). While the law does not require that an accusatory instrument contain the most precise words or phrases most clearly expressing the charges, the offense and factual bases therefor must be sufficiently alleged (see Konieczny, 2 NY3d at 575). "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]; see Konieczny, 2 NY3d at 575).

The essential elements of the crime of criminal contempt in the second degree in violation of Penal Law § 215.50 (3) are that a lawful order of the court was in effect, that the defendant had knowledge of the order, and that the defendant intentionally disobeyed it (see Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983]; Matter of Holtzman v Beatty, 97 AD2d 79 [1983]; People v Martin, 52 Misc 3d 140[A], 2016 NY Slip Op 51166[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Here, the accusatory instrument set forth that an order of protection had been issued by the Queens County Criminal Court on August 10, 2015 and did not expire until February 9, 2016. Thus, a lawful order of the court was in effect when defendant was alleged to have violated it, on or about September 30, 2015. Additionally, the accusatory instrument stated that defendant had been advised in court of the issuance and contents of the order of protection, and that it had been personally served upon her in court. Furthermore, despite defendant's contention to the contrary, and regardless of whether the order of protection was attached to the accusatory instrument,[FN1] by alleging that defendant had asked the complainant what she was doing at the courthouse, the accusatory instrument sufficiently alleged that defendant had violated the order of protection by failing to "refrain from communication or any contact by mail, telephone, e-mail, voice-mail or other means with the complainant" (emphasis added). Consequently, the accusatory instrument was facially sufficient (see People v Arnaud, 66 Misc 3d 126[A], 2019 NY Slip Op 52023[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; People v Contreras, 58 Misc 3d 132[A], 2017 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Accordingly, the judgment of conviction is affirmed.

WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk

Decision Date: March 13, 2020

Footnotes

Footnote 1: It is not a jurisdictional prerequisite to a valid accusatory instrument to attach a copy of the underlying order of protection claimed to have been violated (see Konieczny, 2 NY3d at 576; Casey, 95 NY2d at 359-360).