People v Araujo
Annotate this CaseDecided on August 12, 2015
Criminal Court of the City of New York, New York County
The People of the State of New York
against
Francisco Velasco Araujo, Defendant.
2015NY020566
For the Defendant: New York County Defender Services, by Hans Romo, Esq.For the People: Cyrus R. Vance, Jr., New York County District Attorney, by A.D.A. Michelle Winters.
Steven M. Statsinger, J.
Defendant is charged with criminal contempt in the second degree, Penal Law § 215.50(3). At his arraignment, the People filed and served a copy of the temporary order of protection that he is alleged to have violated. That copy was not certified. Shortly thereafter, off-calendar, the People filed and served the necessary supporting deposition and, at the next calendar call, the Court deemed misdemeanor complaint converted. This all occurred without protest from the defense.
Defendant now moves for leave to reargue, asserting that the misdemeanor complaint was never converted because the People did not file a certified copy of the temporary order of protection. Defendant motion is DENIED.
I. FACTUAL BACKGROUND
A. The Allegations
According to the information, on January 18, 2015, the defendant entered the restaurant where the complainant works and refused to leave when she asked him to. In doing so, defendant violated an order of protection in favor of the complainant. The order required the defendant to, amongst other things, stay away from the complainant and her place of employment.
B. Legal Proceedings
Defendant was arraigned on April 2, 2015, on a misdemeanor complaint charging him with [*2]criminal contempt in the second degree. The People filed and served a copy of the underlying order of protection. The copy was not certified, and defense counsel did not argue that a certified copy was required. The court released the defendant and adjourned the case for a supporting deposition from the complainant.
On April 2, 2015, the People, off-calendar, filed and served by mail a certificate of readiness and the complainant's supporting deposition. At the next calendar call, on April 20, 2015, the Court deemed the misdemeanor complaint converted. Defense counsel again failed to assert that, absent a certified copy of the order of protection, the misdemeanor complaint was not converted, and did not argue that the People's certificate of readiness was illusory.
In addition, on April 20, 2015, defense counsel orally moved to dismiss for facial insufficiency, observing - correctly - that the accusatory instrument accused the defendant of violating Penal Law § 215.50(1), an offense not made out by the facts alleged. In response, the People moved to add one count of Penal Law § 215.50(3) and to dismiss the count charging § 215.50(1).
The Court then set a motion schedule under which defendant's motions were due May 11, 2015, off-calendar, and set May 27 as the date for response and decision. On May 8, defense counsel filed a letter with the Court asserting, for the first time, that the misdemeanor complaint was not converted. Counsel indicated that he would not file motions in the case until conversion occurred. The Court responded with an Order deeming counsel's letter a motion to reargue the question of conversion, denying that motion, and setting a new motion schedule.
Defendant filed the instant motion on May 22, 2015, and the matter has been sub judice since then.
II. THE INFORMATION
The misdemeanor complaint, sworn to by Detective Efrain Curet, provides that
I am informed by [the complainant] that the defendant ... came into the restaurant [located in New York County] where she works and attempted to eat there. I am further informed by [the complainant] that the defendant refused to leave when she asked him to.
The defendant's conduct is in direct violation of a valid Order of Protection, issued in New York County Criminal Court [sic, should be Kings County] ... on October 4, 2013 ... . The order expires on October 3, 2015, and orders the defendant to stay away from [the complainant] and her place of work. The Order of Protection was signed by the defendant.
As noted above, the People filed both the complainant's supporting deposition and a copy of the order of protection.
III. DISCUSSION
In this case, defense counsel had two opportunities to argue that a certified copy of the temporary order of protection was necessary for conversion. Defense counsel failed to do so both times. Five weeks after the temporary order of protection was filed, and nearly three weeks after the Court deemed the misdemeanor complaint converted, defense counsel filed a letter making this [*3]argument for the first time. The Court rejected the argument then, and sees no basis now to grant leave to reargue, yet again, the question of conversion.
A. There Is No Basis Here for Granting Leave to Reargue
This Court has held that the provisions of the CPLR relating for motions to reargue do not apply in criminal cases and that, instead, the authority to grant leave to reargue lies within a trial court's inherent power. People v. DeFreitas, 48 Misc 3d 569, 9 N.Y.S.3d 822 (Crim Ct NY County 2015). DeFreitas observes, however, that this power should be "exercised sparingly."
The Court declines to grant leave to reargue (or re-reargue, technically) in this case. First, defense counsel received a copy of the temporary order of protection at defendant's arraignment on April 2, 2015 and did not object then. Counsel's only explanation is that he "overlooked the nature of the copy of the order of protection," Romo Aff. ¶ 19, both then and again at the April 20 calendar call, even though at that same call counsel noticed that the accusatory portion of the information charged the wrong statute.
In addition, when defense counsel finally flagged the issue in his May 8 letter, the court responded by rejecting the claim that a certified copy of the order was required for conversion. This Court has now twice found that the instrument here is an information, and there is simply no basis for revisiting those rulings which were, without a doubt, correct.
B. A Certified Copy of an Order of Protection is Not Required for Conversion
The vast majority of courts to consider the question agree that a there is no need for the People to file a certified copy of the order of protection in order to convert a misdemeanor complaint charging the defendant with criminal contempt. E.g., People v. Cook, 9 N.Y.S.3d 787 (Sup Ct Rensselear County 2015) ("Nothing in Casey or in any other binding authority requires that a copy of an order appended to an accusatory instrument needs to be certified. Accordingly, this argument is without merit."); People v. Guerrero, 36 Misc 3d 1242(A), 960 N.Y.S.2d 51(Crim Ct Queens County 2012)("The People also filed and served a non-certified copy of the order of protection at arraignment which corroborates the facts alleged in the complaint"); People v. Rivera, 33 Misc 3d 126(A), 938 N.Y.S.2d 229 (App Term 2d, 11th and 13th Dists 2011) ("there is no merit to defendant's contention that the complaint had not been properly converted to an information because a certified copy of the order of protection had not been filed. "); People v. Harris, 72 AD3d 1492, 899 N.Y.S.2d 519 (4th Dept 2010 )("Contrary to defendant's contention, the fact that the attached copies of the order of protection were not certified does not render the informations jurisdictionally defective."); People v. Filippino, 18 Misc 3d 1135(A), 859 N.Y.S.2d 897 (Sup Ct Richmond County 2008) ("Counsel's claim that it is necessary to file a certified copy of the order of protection to convert the misdemeanor complaint into a misdemeanor information is not accurate. There is no such requirement ... ."); People v. Moreira, 2001 WL 1117412 (Crim Ct Queens County 2001) ("[T]he court also finds that it was not necessary for the People to file a certified copy of the Family Court order of protection in order to convert the complaint to an information.") To the extent that a few cases have held otherwise, including those cited by the defendant, this Court disagrees with them and declines to follow them.
While this Court has never before been expressly asked to rule on the question, it has done so implicitly, in that it has found the misdemeanor complaint to be converted in literally hundreds of cases just like this one over the past eighteen months. But, just to be clear: In a criminal contempt case, all that is required for conversion, at least with respect to the order of protection, is [*4]something to establish the deponent's basis of knowledge of the existence, validity and terms of the order of protection.[FN1] A certified copy of the order of protection is not necessary. Indeed, given the right set of facts, the requisite basis of knowledge can be achieved without any copy of the order of protection being filed, let alone a certified copy. In fact, that is precisely what occurred in People v. Casey, 95 NY2d 354, 740 N.E.2d 233, 717 N.Y.S.2d 88 (2000), where the complainant's supporting deposition, by itself, "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." See also People v. Boyce, 25 Misc 3d 1056, 886 N.Y.S.2d 329 (Crim Ct NY County 2009) (observing that conversion could be achieved if deponent swore that the complainant "showed him a copy" of the order).
C. There Is No Other Defect in the Order of Protection that Would Render the Misdemeanor Complaint Unconverted
Finally, counsel points to other purported deficiencies in the temporary order of protection to further argue that the misdemeanor complaint is unconverted. But nothing counsel cites has any bearing on the issue.
Counsel first observes, correctly, that in the copy of the order that was filed and served the top portion is cut off. Counsel complains that the cut off portion "might contain important information" that has been omitted. Romo Aff. ¶ 37. But the only "important information" counsel can assert that is missing is the name, address and county of the court that issued the other, the name of person seeking the order and the NYSID number of the person named in the order. Romo Aff. ¶ 37.
None of these omissions renders the misdemeanor complaint unconverted, as none of the missing information relates to an element of the offense. Even with the top portion missing, the copy of the order that was filed still represents "lawful mandate." People v. Muchuca, 43 Misc 3d 1220(A), 997 N.Y.S.2d 100 (Crim Ct NY County 2014) (Statsinger, J.) Nor is the defense prejudiced by the missing information. Defense counsel concedes that there is a valid docket number on the copy that was filed, and defense counsel also concedes that this number correspondents to a real, albeit sealed, case. Romo Aff. ¶ 43. He accordingly knows as much as he needs to know to "prepare a defense and ... prevent [the] defendant from being tried twice for the same offense." Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.
Finally, defendant observes, again also correctly, that the misdemeanor complaint asserts that the temporary order of protection that the defendant is accused of violating was issued in New York County Criminal Court, but the order that was filed was issued in Kings County Criminal Court. Romo Aff. ¶ 38. But there is no requirement that a document filed in support of a misdemeanor complaint match precisely the facts asserted in the misdemeanor complaint, as long as there is nonhearsay support for each and every element of the charged offense or offenses. People v. Morris, 44 Misc 3d 810, 991 N.Y.S.2d 288 (Crim Ct NY County 2014) (Statsinger, J.) Here, that standard is met. The misdemeanor complaint "clearly refers," id., to the same order of protection that was [*5]filed in support of conversion, in that the docket number indicated in the misdemeanor complaint is the same as that on the order of protection. That the misdemeanor complaint indicates the wrong county of origin is immaterial, as county of origin is not an element of the offense. People v. Walcott, 47 Misc 3d 1217(A), 2015 WL 2077124 (Crim Ct NY County 2015) (Statsinger, J.) (supporting deposition can convert even where it contains facts additional to or different from those in the misdemeanor complaint).
D. Conclusion
The misdemeanor complaint was converted to an information upon the filing of the complainant's supporting deposition on April 8, 2015. Defendant's motion for leave to reargue is denied.
IV. CONCLUSION
For the foregoing reasons, defendant's motion for leave to reargue is denied.
This constitutes the Decision and Order of the Court.
Dated: August 12, 2015_______________________
New York County, New YorkSteven M. Statsinger
Judge of the Criminal Court Footnotes
Footnote 1:Of course, there must also be non-hearsay support for the conduct alleged to have violated the order of protection, but that is not at issue here.
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