People v Felder

[*1] People v Felder 2010 NY Slip Op 51034(U) [27 Misc 3d 1234(A)] Decided on April 26, 2010 Criminal Court Of The City Of New York, Bronx County Best, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 26, 2010
Criminal Court of the City of New York, Bronx County

The People of the State of New York

against

Darryl Felder, Defendant.



2009BX071408

Miriam R. Best, J.

Defendant is charged with Criminal Contempt in the Second Degree (PL § 215.50[3]) and Harassment in the Second Degree (PL § 240.26[1]). He now moves this court to dismiss the contempt charge pursuant to CPL §§ 30.30(1)(b) and 210.20(1)(g). He also moves to dismiss the harassment charge as facially insufficient, pursuant to CPL § 100.40(1)(c). Finally, he moves for suppression or preclusion of evidence.

The Factual Allegations

The complaint alleges that on November 2, 2009 at approximately 9:30 AM, in front of [an address in], Bronx County:

Deponent [Aisha Hart] states that, at the above time and place, her residence defendant buzzed deponents [sic] intercom. Deponent further states that she looked out her window and observed the defendant standing outside of her residence. Deponent further states that as she exited her residence shortly after she observed defendant sitting in his vehicle outside of her residence.

Deponent further states that the defendant's aforementioned conduct caused her to experience annoyance, alarm, and fear for her physical safety.

Deponent further states that she is in possession of a valid order of protection issued by Hon. Yavinsky of, [sic] issued on September 21, 2009 in New York County Criminal Court and [that it] is valid until November 9, 2009. Said order, in pertinent part directs the defendant to say away from her home, and refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, disorderly conduct, criminal mischief, threats or any criminal offense against deponent.

Deponent further states that defendant had knowledge of the aforementioned order of protection in that, the Order of Protection issued September 21, 2009 indicates that the defendant was present in court and is signed by the defendant.

[*2]Motion to Dismiss Pursuant to CPL §§ 30.30(1)(b)

The Parties' Contentions

Defendant moves to dismiss the contempt charge pursuant to CPL § 30.30(1)(b), arguing that "more than ninety days have passed since [the] commencement [of the criminal action], and the complaint is based on uncorroborated hearsay" (Haviland Aff at pg 4 ¶ 5). Defendant claims that the copy of the underlying order of protection which the People served and filed at his arraignment did not cure the hearsay nature of the allegations supporting the contempt charge, because it lacked any indicia of authenticity. Specifically, defendant argues that: 1) portions of the order of protection, including the date and the signature of the court and defendant, are illegible; and 2) the order of protection appears to have been modified, because the names of the complainant and defendant, the docket number and the terms of the order are darker than other written portions of the order, and appear to have been written over earlier and possibly original inscriptions on the original. As a result, defendant claims, the authenticity of the underlying order of protection is questionable and the factual allegations in the complaint about the order of protection remain hearsay. Defendant concludes that the People could never make a valid statement of readiness.

The People do not address defendant's claims with respect to authenticity of the order of protection. Instead, relying on People v. Casey, 95 NY2d 354 (2000), the People argue that they did not have to file a certified order of protection, because Ms. Hart's assertions that: 1) she was in possession of an order of protection; 2) the order was issued by the Honorable Yavinsky on September 21, 2009, in New York County Criminal Court; 3) the order was to remain valid until November 9, 2009; 4) defendant was present in court; and 5) defendant signed the order of protection, were sufficient to establish reasonable cause to believe that defendant committed the crime of Criminal Contempt in the Second Degree. In any event, the People argue that they filed a certified copy of the order of protection before they exceeded their speedy trial time.

Analysis

Defendant is charged with Criminal Contempt in the Second Degree (PL § 215.50[3]), a class A misdemeanor. Pursuant to PL § 70.15, an A misdemeanor is punishable by a definite sentence not exceeding one year. Accordingly, the People were required to announce their readiness for trial within 90 days of commencing the criminal action against defendant. CPL § 30.30(1)(b). In order to be successful on the instant motion, therefore, defendant has the burden of demonstrating the existence of a delay in excess of ninety days. People v. Santos, 68 NY2d 859, 861 (1986); People v. Khachiyan, 194 Misc 2d 161, 166 (Crim Ct, Kings County 2002). Once he has made that showing, the burden shifts to the People to establish that certain periods within that time should be excluded. People v. Santos, supra; People v. Khachiyan, supra.

In order for the People effectively to announce ready for trial, they must both communicate their readiness and in fact be ready for trial. People v Kendzia, 64 NY2d 331, 337 (1984). The People's statement of readiness for trial is valid when they have removed all legal impediments to the commencement of their case. People v. England, 84 NY2d 1, 4 (1994). Because, pursuant to CPL § 170.65, a misdemeanor complaint must be replaced by an information for the purposes of prosecution, the People cannot effectively state ready for trial until the accusatory instrument has been converted to an information. People v. Brooks, 190 [*3]Misc 2d 247, 253 (App Term 1st Dept 2001) ("statement of readiness prior to conversion has no effect for purposes of tolling speedy trial statute when the defendant has not contributed to the delay"); People v. Quiles, 179 Misc 2d 59, 64 (Crim Ct New York County 1998) (People could not effectively declare ready for trial where they failed to file and serve corroborating affidavit).

Calculation of Includable and Excludable Time

1.November 9, 2009 to December 7, 2009

Defendant was arraigned on November 9, 2009. Defendant concedes that the People announced their readiness for trial on that date. He claims, however, that the People's statement of readiness was illusory, because the accusatory instrument had not been properly converted to an information.

To make out a charge of criminal contempt, the "accusatory instrument must allege that a lawful order of the court clearly expressing an unequivocal mandate was in effect, that defendant had knowledge of its provisions, and that the defendant intentionally disobeyed it" (People v.Whidbee, 8 Misc 3d 1023(A) [Crim Ct, Kings County 2005]). Defendant does not claim that the allegations in the accusatory instrument were legally insufficient, in the sense of omitting a necessary element of the crime, but he insists that the accusatory instrument contained hearsay that was not converted by the copy of the order of protection that the People served and filed at arraignments. This is so, according to defendant, because the document served and filed by the People appears to contain alterations to the original, and cannot be considered by the court because it is not facially valid.

It is black letter law that an information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant'scommission thereof" (People v. Kalin, 12 NY3d at 228-29, citations omitted). Here, the People served and filed a signed first-party complaint, verified in accordance with CPL § 100.30(d)[FN1]. Thus, defendant's claims are analogous to those made in People v. Casey, 95 NY2d 354 (2000). In Casey, the defendant claimed that the People's failure to file the temporary order of protection rendered the accusatory instrument defective, because it failed to include non-hearsay allegations that a temporary order of protection had been issued and was in effect at the time of Casey's alleged conduct against the complainant. The Court of Appeals rejected Casey's claims, because

the complainant's supporting deposition states clearly and succinctly that a Temporary Order of Protection had been issued, prohibiting defendant from engaging in harassing or criminal conduct against her. She also averred that she personally observed specifically described conduct of the defendant on December 2 that violated the order. At the very least, the fair implication of these averments established her firsthand knowledge that the order had been granted, was in effect and was violated by defendant's harassing or criminal conduct on the date of the offense. Any challenge to those allegations . . . was a matter to be raised as an evidentiary defense to the contempt charge, not by insistence that [the] information was jurisdictionally defective without annexation of the order to that accusatory instrument.

Id at 260. Similarly, in People v. Inserra, 4 NY3d 30, 32-33 (2004), the Court of Appeals held [*4]that an information charging the defendant with Criminal Contempt in the Second Degree was legally sufficient, where the supporting deposition of the police officer who took the victim's complaint stated that the officer had examined a copy of the order of protection and that defendant's name appeared on the line for the defendant's signature, because "defendant's name on the signature line sufficiently alleges that defendant received and read the terms of the order of protection" (id. at 33). Nothing more was required for pleading purposes. The court specifically declined to reach the issue of whether the copy of the order of protection, which does not appear to have been certified, was admissible.

What is clear from the Court of Appeals' holdings in both Casey and Inserra is that whether or not the People have to serve and file a copy of the order of protection to convert hearsay in a complaint charging Criminal Contempt in the Second Degree depends on how the complaint is worded. When, as here, the accusatory instrument alleges facts based upon the firsthand knowledge of the deponent regarding the existence of the order of protection, its terms, and defendant's knowledge of its terms, those allegations are not hearsay; thus the People need not file the underlying order of protection. Moreover, defendant's reliance on People v. Boyce, 25 Misc 3d 1056 (Crim Ct New York County 2009), and People v. Hogan, 172 Misc 2d 279 (Crim Ct Kings County 1997), is misplaced, because the facts in those cases were significantly different from the facts here. In Boyce, a case with an "informed-by" complaint, the deponent-police officer described the provisions of the order of protection that Boyce allegedly violated, but did not allege that he personally had reviewed the order itself. Thus, to convert this hearsay, the People had to provide a copy of the order of protection. The document that the People served and filed, however, lacked the issuing judge's signature. Because the People did not allege that the police officer had first-hand knowledge of the order or even that he had seen it, the court held that the unsigned copy of the order of protection did not convert the hearsay in the complaint. Boyce, 25 Misc 3d at 1057-58, 1063. Here, in sharp contrast, the complainant herself has sworn to the provisions of the order based on her possession of a copy of it. In Hogan, the court dismissed the contempt charge as facially insufficient, where the People alleged that the defendant called the victim a "fucking bitch" and a "whore" in violation of limited order of protection. The court held that this conduct did not constitute the offense of Harassment in the Second Degree under PL 240.26(3), as the People charged, and that, if it did, the statute would violate the First Amendment. 172 Misc 2d at 283-84. Hogan is clearly inapposite.

Accordingly, for these reasons, this Court holds that the factual allegations in this case consist of nonhearsay allegations that are legally sufficient to establish reasonable cause to believe that defendant committed the crime of Criminal Contempt in the Second Degree (PL § 215.50[3]). The People were not required to serve and file a certified copy of the order of protection to convert any hearsay in the information. Accordingly, no time is chargeable to the People.

However, even if the People had to file a certified order of protection to convert hearsay in the complaint, defendant's speedy trial claim would still fail.

2.December 7, 2009 to February 1, 2010

On December 7, 2009, a motion schedule was set and the case was adjourned until February 1, 2009 for decision. Accordingly, no time is charged to the People. (CPL § 30.30[4][a]). [*5]

3.February 1, 2010 to March 15, 2010

On February 1, 2010, the case was on for decision, but defense counsel had not filed any motion. The case was adjourned to March 15. Accordingly, no time is charged to the People. (People v. Wells, 16 AD3d 174 [1st Dept 2005]).

4.March 15, 2010 to March 22, 2010

On February 16, 2010, defense counsel filed the instant motion to dismiss the charges off calendar. On March 15, defendant failed to appear in court, and a bench warrant was stayed. Defendant appeared in court on March 22, when the People served and filed a response to the motion to dismiss and stated that they had served and filed a certified copy of the order of protection off-calendar on March 19, 2010. The remainder of the time that has elapsed in this case is attributable to motion practice and the court's decision. No time is charged to the People. CPL § 30.30(4)(a).

Conclusion

Even if the People were required to serve and file a certified copy of the order of protection, which the Court holds that they were not, only 28 days chargeable days had passed before the People did so.

Accordingly, defendant's motion to dismiss the charges against him pursuant to CPL § 30.30(1)(b) is denied.

Motion to Dismiss the Harassment Charge for Facial Insufficiency

Defendant moves to dismiss the charge of Harassment in the Second Degree (PL § 240.26[1]), as facially insufficient, because the People do not allege either that he attempted to or actually did subject Ms. Hart to physical contact, as required by the statute.

The People oppose this branch of defendant's motion, arguing, incorrectly, that this subsection of the statute requires that "with intent to harass, annoy or alarm another person, he or she follows a person in or about a public place or places" (Carter Aff. at pg 6). The People claim that the factual allegations in the complaint are sufficient to sustain the charge of Harassment in the Second Degree.

A person is guilty of Harassment in the Second Degree under subsection [1] of the statute when "with intent to harass, annoy or alarm another person: he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." Accordingly, "[t]he crux of section 240.26(1) is the element of physical contact: actual, attempted or threatened." People v Bartkow, 96 NY2d 770, 772 (2001). Here, the People allege that defendant buzzed the intercom to Ms. Hart's residence, stood outside her home and then sat in his car in front of her home, all in violation of an order of protection. The People do not allege that defendant subjected Ms. Hart to any physical contact whatsoever. Nor do the People allege that defendant threatened Ms. Hart with physical contact, or made any statement to her, or that he approached her as she exited her home. Accordingly, defendant's motion to dismiss the charge of Harassment in the Second Degree is granted.

Defendant's Omnibus Motion

Defendant's motion to preclude impeachment evidence, People v. Sandoval, 34 NY 371 (1974), and evidence-in-chief of defendant's prior bad acts, People v. Ventimiglia, 52 NY2d 350 (1981), is referred to the trial court for hearings immediately prior to trial. The People are [*6]ordered to comply with their disclosure obligations pursuant to CPL § 240.43 if they seek to introduce any such evidence.

Defendant's application for an extension of time to file additional motions is denied, subject to the provisions of CPL § 255.20(3) regarding due diligence and good cause.

This opinion constitutes the decision and order of the court.

Dated:Bronx, New York

April 26, 2010

_______________________________

Miriam R. Best

Judge of the Criminal Court Footnotes

Footnote 1: Verification of a document is the written equivalent of a testimonial oath. People v. Phillipe, 142 Misc 2d 574, 579 (Crim Ct Kings County 1989).