People v Gurnett

[*1] People v Gurnett 2018 NY Slip Op 28114 Decided on April 13, 2018 Justice Court Of The Town Of Webster, Monroe County DiSalvo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on April 13, 2018
Justice Court of the Town of Webster, Monroe County

The People of the State of New York, Plaintiff,

against

Chad Gurnett, Defendant.



17110039 and 17110098



Timothy Boucher, Esq., Assistant Monroe County District Attorney

Brandon Hellwig, Esq. Assistant Monroe County Public Defender
Thomas J. DiSalvo, J.

History of the Case.

The defendant was charged with criminal contempt in the second degree, in violation of Penal Law § 215.50 (3) on two occasions to wit: November 5, 2018 and November 14, 2017, wherein it was alleged that he violated this court's order of protection. In a prior case, which is still pending before this court, the defendant was charged with menacing in the second degree and harassment in the second degree, alleged to have occurred on November 5, 2017 at about 11:12 A.M.. Defense counsel filed separate omnibus motions in each of these cases. In the cases alleging criminal contempt in the second degree, the motions allege that the informations are insufficient on their face.

It is undisputed that the court arraigned the defendant at an "off-hours" arraignment on November 5, 2017 at 1:25 P.M. on said charges of menacing second degree, P.L. § 120.14 (1)

and harassment, second degree, P.L. § 240.26 (1). The defendant was represented at that off-hours arraignment by an attorney from the public defenders's office. The court issued the order of protection in question at that arraignment, pursuant to C.P.L. 530.12 (1). The defendant signed that order of protection indicating his receipt of same in the presence of his attorney. At that time the court indicated to the defendant what was prescribed by said order. Copies of said order were provided to both the defendant and his attorney. Finally the defendant was then released on his own recognizance. It is noted that the initial offense of criminal contempt in the second degree was alleged to have occurred later on the same day at about 5:25 P.M. The defendant was given an appearance ticket in that case which directed him to appear in court on November 15, 2017.

Legal Analysis.

The standard for sufficiency of a misdemeanor information is a higher one than that of a felony complaint. The reason for same is that a misdemeanor information can form the basis of prosecution of the defendant. In the case of a felony complaint, the offense in question must be presented for review by a county grand jury.[FN1] A felony complaint can commence a legal action, but cannot be the basis of a prosecution.[FN2]

In any event, in most every criminal case, the misdemeanor information, which can be comprised of a complaint and a supporting deposition, is scrutinized by defense counsel to determine if the sufficiency requirements of the law have been met. The sufficiency of such an accusatory instrument is governed by Criminal Procedure Law § 140.40 (1) and by various case law. A failure of the arresting police agency to carefully prepare misdemeanor informations in accordance with both statutory and case law, will result in many of its accusatory instruments being dismissed as being insufficient on their face.

Criminal Procedure Law § 100.40 (1) states as follows:

"An information, or a count thereof, is sufficient on its face when:(a) It substantially conforms to the requirements prescribed in section 100.15; and(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof."

Many rulings declaring an information to be insufficient on its face are based on an alleged failure to comply with C.P.L. § 100.40 (1) (c) due to a lack of "non-hearsay" allegations in the complaint and/or the supporting deposition. In addition, many rulings dismissing an information are because the accusatory instrument fails to set out "each element of the offense [*2]charged", as defined by both statutory and case law.Penal Law Section 215.50 (3) states in pertinent part as follows: "A person is guilty of criminal contempt in the second degree when he engages in any of the following conduct: Intentional disobedience or resistance to the lawful process or other mandate of a court ...." In both cases before the court, the informations allege that the defendant violated a particular order of protection and the circumstances of that violation. However, case law has been more specific as to what constitutes "every element of the offense" of criminal contempt in the second degree, for purposes of sufficiency.

Case # 17110039/CR#: 17-024798

The complaint herein alleges that the defendant violated this court's stay away order of protection dated November 5, 2017 directing the defendant not to

"... return to the home at ... Klem Road, Webster NY 14580 for any reason except with a police escort to obtain personal belongings. The defendant did return to the home without a police escort on the above date and time."

In fact the defendant was directed to stay away from "the home of [the protected party]". If the Klem Road property was no longer the home of the protected party, the provision requiring a police escort to that address should, in the opinion of this court, be moot.[FN3] The order of protection was designed to protect the complainant not the property. However the supporting deposition of the complainant places the defendant in the presence of the protected person in presumptive violation of the said stay away order of protection. The supporting deposition of the complainant states as follows: "On the above date around 5:30 P.M. I came home to ... Klem Road my house. When I went inside I found my brother Chad A. Gurnett inside getting his personal items including clothing and tools. He was alone and told me something about being homeless now and retrieving his property. He then left the house."

Certainly the deposition of the complainant supplies the required non-hearsay allegations. The combination of the complaint and supporting deposition combine to form a misdemeanor information. This still begs the question as to whether that information is legally sufficient on its face in terms of setting out all the elements of the offense charged.

As previously stated, in addition to the statutory requirements for a sufficient information, there are the requirements established by the controlling case law. Cases decided by the Fourth Department of the Appellate Division are controlling on this court. In People v. Ferenchak, 82 AD3d 1692, 919 N.Y.S.2d 436 (4th Dept. 2011) the court reversed the conviction of criminal contempt in the second degree, (P.L. § 215.50 [3]) entered after a non-jury trial in an Onondaga County Court. The court held as follows:

"Here, the factual portion of the misdemeanor information alleges that defendant violated an order of protection issued on a particular date and recites the circumstances underlying that violation, but it does not allege that defendant was served with the order of protection, that he was present in court when it was issued or that he signed the order of [*3]protection...."[FN4]

In this case reading the information comprised of both the complaint signed by Officer Kirkpatrick, who was not present at that time of the alleged offense, and the supporting deposition signed by the complainant, one must observe that there is no mention of defendant herein being in court at the time the order of protection was issued, that he was served with the order or that he signed the order. On that level the information herein would be insufficient on its face.

Case #: 1710098 CR#: 17-026525

The defendant was subsequently charged with having committed a second offense of criminal contempt in the second degree, P.L. § 215.50 (3) on November 14, 2017. The complaint read as follows:

"That the above named defendant did, at the above date and location at about 11:24 P.M., intentionally disobeyed a lawful mandate of the court being an order of protection issued by Webster Town Court by Honorable Judge DiSalvo presiding on the 5th day of November 2017 to wit: Patrol responded to ...Klem Road due to a 911 hang up call. Chad A. Gurnett was observed by patrol at ... Klem Road looking in the front door window where his sister... was staying and has a stay away order of protection against Chad A. Gurnett"

The complaint was again accompanied by a supporting deposition of the protected party. Said supporting deposition which stated: "My brother Chad A. Gurnett and I have a stay away order of protection against each other where I am the Petitioner and Chad is the Respondent. Tonight Chad showed up to my residence of .... Klem Road when he knew he was not supposed to be here.[FN5]

In addition, another supporting deposition was provided by the defendant's mother which stated: "My son Chad A. Gurnett showed up at my residence of ... Klem Road because he ran out of gas and coasted his truck here. Chad banged on the window, and I was going to take him to get gas."

The defendant was arraigned at the court's regular disposition calender on November 15, 2017. Again the defendant was represented by the public defender. He was released on his own recognizance.

Once more reference must be made to People v. Ferenchak, 82 AD3d 1692, 919 N.Y.S.2d 436 [4th Dept. 2011]. In the instant case the complaint indicates that an order of protection was issued by the court. The complaint and supporting depositions set out the underlying violation. However, nowhere do the accusatory instruments set out that the defendant was served with the order of protection or that the defendant was present in court when the order of protection was issued. Nor is there any allegation that the defendant signed the order of protection.[FN6] On that level the information herein would be insufficient on its face.

Judicial Notice. However, the court is aware of its file and the history of the case. The question becomes whether the court can take judicial notice of its file relative to both incidents in determining if the accusatory instruments charging the defendant with criminal contempt in the second degree are sufficient on their face. That issue was addressed in People v. Suarez, 51 Misc 3d 620, 28 N.Y.S.3d 557 (Criminal Court, City of New York 2016, Statsinger, J]). The court stated

"Judicial notice is "is knowledge which a Court takes of a matter without evidence having been introduced to establish it." People v. Sowle, 68 Misc 2d 569, 327 N.Y.S.2d 510 (County Court Fulton County 1971). 'Whether courts will take judicial notice of matters of fact depends on the nature of the subject, the issue involved and the apparent justice of the case." Id. Examples of the sorts of facts of which a court may take judicial notice are 'geographical facts and the location of streets' and 'public records. Id'."[FN7]

Certainly, the order of protection issued by this court on November 5, 2017, which is in the court's file, is a public record. In fact the court in Suarez "... as a matter of first impression, [held that ] filing of a copy of a copy of defendant's rap sheet converted [a] misdemeanor complaint charging him with third-degree bail jumping into an information."[FN8] Specifically, the court stated: "A court may take judicial notice of public records, including information "culled from" them, Siwek v. Mahoney, 39 NY2d 159, 163 n. 2, 347 N.E.2d 599, 601 n. 2, 383 N.Y.S.2d 238, 240 n. 2 (1976), at "any stage of the litigation from motion practice to appeals," Associated General Contractors of America, New York State Chapter, Inc. v. Lapardo Bros. Excavating Contractors, Inc., 43 Misc 2d 825, 252 N.Y.S.2d 486 (Sup.Ct., Albany County 1964). Here, the Court takes judicial notice of the court file in Docket No. 2014 2014NY003458, which is pending before this Court. See People v. Perez, 195 Misc 2d 171, 757 N.Y.S.2d 711 (Crim.Ct., NY County 2003) (a court may take judicial notice of its own records, and facts of which judicial notice may be taken need not be pled in an information)."[FN9]

People v. Suarez is certainly instructive in evaluating the sufficiency of the informations [*4]in the cases herein. This court takes judicial notice of the initial pending case before it, involving the defendant, wherein the defendant was charged with menacing in the second degree and harassment in the second degree and wherein it issued an order of protection pursuant to C.P.L. § 530,12 (1) directed at the defendant. The order of protection was issued at the arraignment of the defendant on November 5, 2017. In addition to being present in court when the order of protection was issued, the defendant acknowledged receipt of same by signing said order. He was also provided a copy of the order at that arraignment, despite the fact that the box in the order of protection which states "Order personally served on Defendant in court" was not checked. The recording of the arraignment sets out the service of the Order of Protection on the defendant and his attorney.[FN10]

Taking judicial notice of "public records, including information 'culled from' them" does not automatically violate the rule that "... an information must set forth the required nonhearsay evidentiary allegations within 'the four corners of the instrument itself' or in annexed supporting depositions...." (People v. Thomas, 4 NY3d 143, 146, 791 N.Y.S.2d 68,70 [2005]. See also People v. Bottari, 31 Misc 3d 90, 924 N.Y.S.2d 733 [2011]). Public records and parts of the court's file, including the audio recording of the prior court proceedings, of the case at bar, are within the collective knowledge of the court. Such records are non-accusatory in nature, but are factually reliable documentation and records within the knowledge and purview of the court.

In taking judicial notice of the defendant's rap sheet, the court in Suarez made use of a document that has been deemed reliable enough to be used to determine if a defendant's liberty could be curtailed by the setting of bail or in some instances to hold a defendant without bail. The facts of that rap sheet filled in the missing information in converting a misdemeanor complaint, charging bail jumping, into a misdemeanor information.[FN11] In neither People v. Thomas nor People v. Bottari, did the court make reference to non-accusatory court records in citing the "four corners of the accusatory instrument rule". For example, in Bottari, the court refused, in determining the sufficiency of an information charging endangering the welfare of a child to "...take into consideration the allegations set forth in the informations charging defendant with driving while intoxicated ...."[FN12] Such documentation in the court's file would be per se accusatory in nature.

Conclusion.

The accusatory instruments charging the defendant with criminal contempt in the second degree, (P.L. § 215.50 [3]), on the above two occasions, are in and of themselves insufficient on their face for failure to set out all the "...every element of the offense charged and the defendant's commission thereof", in accordance with C.P.L. § 100.40 ( c) and relevant case law. However, when the court takes judicial notice of its own records, including the audio recording of the initial arraignment of the defendant, the missing elements of offense charged are before the court, [*5]establishing a prima facie case.[FN13] Namely, that a stay away order of protection was issued by this court, that the defendant was in the presence of the protected party, the defendant was in court at the time the order was issued, that he was provided with a copy of that order, and that the defendant acknowledged receipt of the order by signing same. Judicial notice of the court's file, including the audio recording of the issuance of the order of protection, converted the accusatory instruments herein to misdemeanor informations that were sufficient on their face.

Therefore, the defendant's motion to dismiss the charge of criminal contempt in the second degree, P.L. § 215.50 (3), alleged to have occurred on November 5, 2017 is hereby denied. Similarly, the defendant's motion to dismiss the charge of criminal contempt in the second degree, P.L. § 215.50 (3), alleged to have occurred on November 14. 2017 is hereby denied. This constitutes the decision and order of this court.

Dated: April 13, 2018

Webster, New York

Hon. Thomas J. DiSalvo

Webster Town Justice Footnotes

Footnote 1:See Gerstenzang, Handling a DWI in New York § 16:9 at 570 [2017-2018 ed.].

Footnote 2:C.P.L. § 1.20 (8).

Footnote 3:This is the case despite the court's verbal admonition to the defendant at the arraignment to stay away from said property, except to get his personal property while accompanied by the police, since it was based on the knowledge at the time that the protected party resided therein.

Footnote 4:Id. at1693,436.

Footnote 5:The deposition implies that the defendant was at the complainant's residence, albeit outside looking in the front door window, when same was occupied by the complainant. Certainly the supporting deposition could have been more specific. However, in reviewing the language set out in the supporting deposition, for purposes of sufficiency, the court is giving it a fair, non-restrictive, non-technical reading, assuming that the allegations are true and is taking all reasonable inferences from them. (emphasis added) (See People v. Suarez, 51 Misc 3d 620,623, 28 N.Y.S.3d 557,561 [2016]). The allegations are enough to give the defendant sufficient notice to prepare a defense and are adequately detailed to prevent the defendant from being tried twice for the same offense. (See People v. Casey, 95 NY2d 354, 360, 717 N.Y.S.2d 88, 91, 740 N.E.2d 233, 236 [2000]).

Footnote 6:See Ferenchak at 1693, 436.

Footnote 7:Id. at 624, 561.

Footnote 8:See "Holdings in "National Reporter Version of People v. Suarez at 557.

Footnote 9:Id. at 625, 562.

Footnote 10:Certainly the recording of the arraignment constitutes part of the court's own records to which the court can refer.

Footnote 11:Suarez at 625, 562-563.

Footnote 12:Bottari at 93, 735.

Footnote 13:"The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S.2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." **561 People v. Casey, 95 NY2d 354, 360, 717 N.Y.S.2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them [citations omitted]." Suarez at 623, 561-562.