People v Taylor
Annotate this CaseDecided on July 23, 2019
Criminal Court of the City of New York, Kings County
The People of the State of New York, Plaintiff,
against
E. Taylor, Defendant.
CR-003963-19KN
Appearances by Counsel:
Defense Attorney: Gregory Johnston, The legal Aid Society, Criminal Defense Division, 111 Livingston Street, Brooklyn, NY 11201
Assistant District Attorney: Douglas W. Marquez, Kings County District Attorney's Office, 350 Jay Street, Brooklyn, NY 11201
"Wendy" Changyong Li, J.
I.
By motion dated and filed with the Court on April 1, 2019 ("Dismissal Motion"), the Defendant moved to dismiss the accusatory instrument for facial insufficiency pursuant to CPL 170.30, 170.35 and 100.40. Specifically, the Defendant opposed the conversion of the accusatory instrument to an information because she contends that the document filed by the People does not contain a basis to believe that she was served with or received the notice of the eviction order ("Eviction Order"). As a result, the Defendant asserts that the complaint is jurisdictionally defective because it failed to allege sufficient factual allegations to establish the charge of criminal contempt in the second degree (Penal Law § 215.50 [3]). The People have submitted an opposition ("Opposition Motion") dated and filed with the Court on June 20, 2019 to Defendant's Dismissal Motion.
II.
By misdemeanor complaint (Docket No. 003963-19KN) filed on January 30, 2019 ("Complaint"), the Defendant was charged and arraigned in Kings County Criminal Court on one count of obstructing governmental administration in the second degree (Penal Law § 195.05), one count of resisting arrest (Penal Law § 205.30) and one count of criminal contempt in the second degree (Penal Law § 215.50 [3]).
The factual part of the Complaint alleged that on or about January 29, 2019 at approximately 10:30 AM at [XXX] Decatur Street in Kings County, New York ("Location"), Deputy Sheriff Cristian Santos, the deponent, "observed the Defendant inside the above location, that deponent observed Deputy Sheriff Anthony Yang shield No. 250, of Kings County Command, inform Defendant that Defendant had to vacate the premises because of the Supreme Court legal possession order 47054/2007, and that if Defendant did not vacate the premises then [*2]Defendant would be arrested, and that deponent observed the Defendant state in sum and substance, you have no right to remove me I'm part of the common law nation."
The Complaint further alleged that "at the above time and place, deponent observed the Defendant resist arrest when deponent observed Deputy Sheriff Anthony Yang shield No. 250, of Kings County Command, inform Defendant that Defendant was under arrest, that deponent observed Defendant lock Defendant arm by making Defendant's arm stiff and made a fist while having Defendant's phone in Defendant's hand, that deponent observed Defendant sit down on the floor and that Deputy Sheriff Yang shield No. 250, of Kings County Command, asked Defendant to get up and that Defendant did not get up."
According to the Dismissal Motion, on February 26, 2019, the People served a statement of readiness together with the certified copy of the Eviction Order (Index No. 47054/2007) issued by Hon. Lawrence J. Knipel of Kings County Supreme Court, civil, dated May 24, 2018 and filed in Kings County Clerk's Office on June 7, 2018. The Eviction Order issued against the Defendant states that "[u]pon the Order to Show Cause . . . and the Defendants having been heard on May 24, 2018 . . . a final judgment of possession shall be entered . . . against Defendant." The Eviction Order further states that "the Sheriff of the County of Kings, be and is hereby ordered, ten (10) days after service of a copy of this Order with Notice of Entry upon Defendant, to enter upon the premises . . . and eject therefrom the Defendant, [E.] Taylor."
III.
The Defendant argues that a certified copy of such Eviction Order filed by the People on February 26, 2019 is legally insufficient to establish that the Defendant committed the crime of criminal contempt in the second degree (Penal Law § 215.30 [3]) in that it failed to establish that the Defendant received the notice of the Eviction Order because the "order itself specifically states that eviction can occur only after ten days after such order is served on Ms. Taylor," and the "Defendant opposes conversion of the complaint to an information" (Dismissal Mot. at 11). According to the Defendant, "since no non-hearsay allegations regarding the notice of the eviction order are contained in the complaint, the charge of criminal contempt in the second degree is facially insufficient" (Dismissal Mot. at 11). Notably, the Defendant makes no argument regarding the charge of obstructing governmental administration in the second degree (Penal Law § 195.05) and the charge of resisting arrest (Penal Law § 205.30). Therefore, this Court's decision will not address those charges.
The People contend that Defendant's knowledge of the Eviction Order was established by the fact that Deputy Sheriffs of Kings County Command arrived at the Location with a valid Eviction Order from Supreme Court to effectuate court's mandate in evicting the Defendant. While not pleaded in the Complaint, the People further contend that the Defendant was sent a five-day eviction notice on January 17, 2019 which indicated a judgment against the Defendant, instructed the Defendant to give possession of the Location to the landlord and required the Defendant to remove her belongings. According to People's Opposition Motion, the notice also indicated that the Defendant would be evicted any time after five business days from the time the notice was given. According to People's Opposition Motion, a second notice of eviction which served as a final eviction notice was sent to the Defendant on January 23, 2019 which indicated that the Defendant was served with the prior five-day notice and that eviction could be executed on any day after January 28, 2019. The People assert that Defendant's eviction was upheld in the Housing Court. (Opposition Mot. at 5.)
IV.
A misdemeanor complaint is facially sufficient when it complies with the requirements of CPL 100.15 and 100.40, in that the accusatory portion of the complaint must inform the Defendant of the offense for which she is being charged, and the factual portion of the complaint must "[allege] facts of an evidentiary character supporting or tending to support the charges" (CPL 100.15 [2], [3]; see People v Kalin, 12 NY3d 225, 228 [2009]). The factual allegations of the complaint or information, together with those of any supporting depositions, must "provide reasonable cause to believe that the defendant committed the offense charged" in the instrument (CPL 100.40 [1] [b], [4] [b]). A misdemeanor information must also contain "[n]on-hearsay allegations . . . [which] establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL 100.40 [1] [c]; see People v Smalls, 26 NY3d 1064, 1066 [2015]). Additionally, "the prima facie case requirement [for factual allegations in the accusatory instrument is a lesser burden than proof] beyond a reasonable doubt required at trial" (People v Henderson, 92 NY2d 677 [1999]). Furthermore, "[s]o 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]).
Penal Law § 215.50 states, in pertinent part, "[a] person is guilty of criminal contempt in the second degree when he engages in any of the following conduct: (3) [i]ntentional disobedience or resistance to the lawful process or other mandate of a court . . ." To prove criminal contempt in the second degree, the evidence must establish that: (1) a lawful order of a court, clearly expressing an unequivocal mandate, was in effect; (2) the Defendant had knowledge of the court's order; and (3) the Defendant intentionally disobeyed it. Knowledge requires that the "substance of . . . the order . . . was conveyed to [the] defendant." (People v McCowan, 85 NY2d 985, 987 [1995]; see also People v Inserra, 4 NY3d 30 [2004].)
Pursuant to the Eviction Order, it is undisputed that the Defendant was given an opportunity to be heard on May 24, 2018. Here, the Complaint, for facial sufficiency purpose, is adequate in that it has informed the Defendant of the offense, one count of criminal contempt in the second degree (Penal Law § 215.50 [3]), for which she is being charged, and that the factual portion has alleged the existence of the Eviction Order and the Defendant was in violation of the Eviction Order by refusing to vacate the Location. However, pursuant to the Eviction Order, the eviction may only occur 10 days after the Defendant was served with a copy of such order with "Notice of Entry." Although People's Opposition Motion represents that the Defendant was served with such order and notice of entry on January 23, 2019 and January 28, 2019 respectively, the People have failed to plead such facts in their Complaint nor have the People provided evidence of such services with this Court and the Defendant. CPLR 2103 requires court papers to be served by anyone but a party to a litigation, who is over eighteen years old. The service could be done mainly by personal delivery or by mail, if a defendant is not represented by counsel in a civil proceeding. Without such evidence of service, the charge of criminal contempt in the second degree (Penal Law § 215.50 [3]) in the Complaint is not sufficiently converted.
The Defendant did not raise speedy trial issue pursuant to CPL 30.30 in her Dismissal Motion; therefore, this Court's decision will not address that matter.
V. 1. Defendant's motion to dismiss the Complaint for facial insufficiency is denied.2. Defendant's motion to oppose People's conversion of the Complaint to an information is granted. People's Complaint was not converted as of February 26, 2019 nor is it converted as of the date of this Decision and Order.3. Defendant's motion seeking the right to make further motion is granted to the extent afforded by CPL 255.20 (3).
This constitutes the DECISION and ORDER of the Court.
Dated: July 23, 2019
Kings County, New York
_______________________________
"WENDY" CHANGYONG LI, J.C.C.
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