People v Ogilsbie
Annotate this CaseDecided on May 19, 2011
County Court, Madison County
The People of the State of New York
against
David S. Ogilsbie, Defendant.
2011-0015
William G. Gabor, Esq., District Attorney of Madison County (Robert A. Mascari, Esq., of counsel), for the People;
Lawrence P. Brown, Esq., for the Defendant.
Dennis K. McDermott, J.
The defendant faces a seven-count indictment charging him with Burglary 2nd degree, two counts of Criminal Contempt 2nd degree, two counts of Endangering the Welfare of a Child, Aggravated Harassment and Harassment. It is alleged that on October 2, 2010, at a time when the victim had secured two separate orders of protection each directing the defendant to stay away from her and her residence and to refrain from offensive conduct against her, he forced his way into her home while she was present and struck her 15-year old son who was attempting to prevent him from entering.
The defendant has filed his pre-trial omnibus motions and on the return date the court made rulings from the bench on all but two issues. The court reserved decision on those issues pending its in camera review of the transcript of the presentation of the case to the grand jury. [*2]
The challenge to the legal sufficiency of the burglary charge is two-pronged: (a) that the People failed to specify in the indictment the particular crime which the defendant is alleged to have intended to commit once inside the victim's residence, and (b) the fact that the defendant and the victim are co-owners of the residence means that his entry into his own property cannot, as a matter of law, be unlawful.
The court can find no legal authority to support the defendant's first argument and the defendant has offered none. To the contrary, it is well-settled that the People are not required to specify the particular crime which the defendant allegedly intended to commit. People v. Lewis, 5 NY3d 546, 552 (2005); People v. Mackey, 49 NY2d 274 (1980); People v. Thomas, 38 AD3d 1134 (3d Dept 2007), lv. denied 9 NY3d 852 (2007); People v. Arce, 70 AD3d 1196, 1198 (3d Dept 2010).
In support of his second argument, the defendant submits a copy of a duly-recorded 2001 deed conveying the subject premises to himself and the victim as joint tenants with right of survivorship. Presumably, title was thus held at the time of the alleged incident but the defendant's argument misses the point. The "enters or remains unlawfully" element of burglary does not address the issue of title to the premises. Instead, it is the right of possession or habitation that the statute seeks to protect. People v. Glanda, 5 AD3d 945, 950-951 (3d Dept 2004), lv. denied 3 NY3d 640 (2004), cert. denied 543 U.S. 1093 (2005). For example, a co-tenant of an apartment may be properly convicted of burglary where his right to the use or possession of that apartment has been suspended by an order of protection. People v. Scott, 195 Misc 2d 647 (Sup Ct, Kings County 2003).
Here, a temporary order of protection issued by a local criminal court directed the defendant to stay away from the victim's residence.[FN1] That order suspended his right of habitation, leaving the victim as the sole person entitled to the use and possession of the home. People v. Jones, 79 AD3d 1244 (3d Dept 2010), lv. denied 16 NY3d 832 (2011). Under these circumstances, the defendant's entry into the premises may properly be viewed as unlawful. That the defendant and the victim held title to the property as joint tenants is immaterial.
Therefore, defendant's motion to dismiss the burglary charge based on legal insufficiency is denied.
The grand jury received in evidence copies of the two orders of protection. One was issued by the Madison County Family Court on June 23, 2010 and, as recited therein, it was issued for a period of one year (i.e., expiring on June 23, 2011) following a hearing held upon the defendant's default in appearing. That exhibit contains no proof that a copy of the order was ever served on the defendant. The second is a temporary order of protection issued on June 15, 2010 by the Town of Sullivan Justice Court and, like the Family Court order, it specifically directs the defendant to stay away from the victim and her home, to refrain from communicating with her, and to refrain from offensive conduct against her. The order recites that it was to remain in effect until December 15, 2010 and, following the judge's signature, a box is checked indicating "Defendant advised in Court [*3]of issuance and contents of Order.", following which there is a signature line with an illegible signature on it and beneath the signature line are the words, "Defendant's signature."
An essential element of the crime of Criminal Contempt, 2nd degree (Penal Law § 215.50 [3]) is the defendant's knowledge of the issuance and contents of the order. People v. Casey, 95 NY2d 354 (2000). Where a true copy of the order is provided and where the defendant's name or signature appears on the defendant's signature line thereof, that has been held to be sufficient proof of such knowledge. People v. Inserra, 4 NY3d 30 (2004); People v. Soler, 52 AD3d 938 (3d Dept 2008), lv. denied 11 NY3d 741 (2008).
In the absence of proof before the grand jury that the defendant had knowledge of the issuance and contents of the Family Court order of protection, the "Second Count" of the indictment must be dismissed. The "Third Count" of the indictment does not suffer from this infirmity and it will not be found to be defective in this respect.
The evidence presented to the grand jury was sufficient to support each of the remaining counts of the indictment. With regard to the burglary charge, the court notes that the "intent to commit a crime therein" element is not satisfied by proof that the defendant intended to enter the residence in violation of the prohibition contained in the orders of protection. Rather, that particular element is satisfied with proof that the defendant intended to harass, menace, intimidate or threaten the victim, conduct which is separate and distinct from the trespass element. People v. Lewis, supra, at 551.
Twenty-one grand jurors heard the evidence presented. They were properly instructed on the law and there is nothing in the record to indicate that there were any irregularities or defects in the proceedings that would render them "defective" within the meaning of Criminal Procedure Law §210.35 (5). Except for dismissal of the "Second Count", the court finds no basis to dismiss or reduce any of the remaining charges contained therein, and this portion of the defendant's motion must be denied.
NOW, THEREFORE, it is
ORDERED, that defendant's motion to dismiss the burglary charge ("First Count") of the indictment for legal insufficiency is denied; and it is further
ORDERED, that defendant's motion to dismiss the "Second Count" of the indictment charging Criminal Contempt, 2nd degree, for the violation of an order of protection issued by the Madison County Family Court on June 23, 2010, is granted and that count is hereby dismissed; and it is further
ORDERED, that the defendant's motion to dismiss and/or reduce the remaining counts of the indictment is denied. [*4]
The case is now ready for trial. The court clerk shall schedule a jury trial to commence on Monday, June 20, at 9:00 AM. The court further schedules a pre-trial conference at which the defendant's presence will be required for Tuesday, June 14, at 9:00 AM.
Dated: May 19, 2011.
ENTER:
____________________________________
Judge of the County Court Footnotes
Footnote 1: For reasons discussed below, the court does not address the effect of the order of protection issued by Family Court.
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