| People v Roach |
| 2011 NY Slip Op 03767 [84 AD3d 1734] |
| May 6, 2011 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v RichardRoach, Appellant. |
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Appeal from a judgment of the Supreme Court, Monroe County (Alex R. Renzi, J.), renderedFebruary 25, 2010. The judgment convicted defendant, upon a nonjury verdict, of criminalcontempt in the second degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him following a nonjury trialof criminal contempt in the second degree (Penal Law § 215.50 [3]), arising from hisviolation of a temporary order of protection. We reject defendant's contention that themisdemeanor information upon which he was prosecuted was jurisdictionally defective becauseit contained only a conclusory allegation that he had knowledge of the temporary order ofprotection. "It is a fundamental and nonwaivable jurisdictional prerequisite that an informationstate the crime with which the defendant is charged and the particular facts constituting thatcrime . . . In order for an information to be sufficient on its face, every element ofthe offense charged and the defendant's commission thereof must be alleged" (People vHall, 48 NY2d 927, 927 [1979], rearg denied 49 NY2d 918 [1980]; see CPL100.15 [3]; 100.40 [1] [c]). "So long as the factual allegations of an information give an accusednotice sufficient to prepare a defense and are adequately detailed to prevent a defendant frombeing tried twice for the same offense, they should be given a fair and not overly restrictive ortechnical reading" (People v Casey, 95 NY2d 354, 360 [2000]; see People v Konieczny, 2 NY3d569, 575 [2004]).
An essential element of a prosecution for the crime of criminal contempt in the seconddegree is that "the party to be held in contempt must have had knowledge of the court's order"(Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983], amended 60 NY2d652 [1983]). Here, the information alleged that defendant had knowledge of the temporary orderof protection. In addition, the victim's supporting deposition that was attached to the informationcontained the victim's statement that defendant "d[id] not seem to care about the order ofprotection" as he drove by the victim's house two times within a one-minute period of time. The"fair implication" of the victim's statement is that defendant had knowledge of the temporaryorder of protection (Casey, 95 NY2d at 360). Generally, conclusory allegations areinsufficient to meet the statutory requirements, but this is not a case in which additional factswere required [*2]to establish the illegality of defendant's conduct(cf. People v Dreyden, 15 NY3d100 [2010]; People v Dumas, 68 NY2d 729 [1986]). While it may have beenpreferable for the People to allege in the information the manner in which defendant had beenmade aware of the temporary order of protection, we conclude that the "core concerns [ofCasey] were clearly satisfied in this case" (People v Kalin, 12 NY3d 225, 230 [2009]).
Contrary to defendant's further contention, Supreme Court did not engage in prematuredeliberations in this nonjury trial when it denied his motion for a trial order of dismissal (seePeople v Wilson, 243 AD2d 316, 317 [1997], lv denied 91 NY2d 1014 [1998]). Thecourt merely addressed the alleged evidentiary deficiencies raised by defendant in support of hismotion.
All concur except Carni, J., who dissents and votes to reverse in accordance with thefollowing memorandum.
Carni, J. (dissenting). I respectfully disagree with the conclusion of my colleagues that themisdemeanor information charging defendant with criminal contempt in the second degree(Penal Law § 215.50 [3]) contained sufficient evidentiary facts showing the basis for theconclusion that defendant had knowledge of the temporary order of protection. I thereforedissent.
The information, insofar as it described the complaining officer's conclusion that defendanthad knowledge of the temporary order of protection, "failed to give any support or explanationwhatsoever for [that conclusion]" (People v Dreyden, 15 NY3d 100, 103 [2010]). Indeed, theconclusory allegation of defendant's knowledge is contained within the preprinted language ofthe information form utilized by the complaining officer, and that officer failed to explain how heformed the belief that defendant had knowledge of the temporary order of protection (seeid. at 104; People v Dumas, 68 NY2d 729, 731 [1986]). Inasmuch as the informationcontained no factual basis for that conclusion, it was jurisdictionally defective (seeDreyden, 15 NY3d at 103). The victim's statement that defendant allegedly "d[id] not seemto care about the order of protection," relied upon by the majority, suffers from the same defectinasmuch as it also fails to provide any factual basis to support the conclusion that defendant hadknowledge of the temporary order of protection. Further, the majority's reliance upon thatstatement confuses the factual allegations with respect to defendant's violation of the temporaryorder of protection with the factual allegations required to support the conclusion that he hadprior knowledge thereof. Indeed, it is plausible to conclude on this record that what the victimperceived as a lack of care with respect to the temporary order of protection was in fact a lack ofknowledge thereof. In any event, the victim's subjective perception of the state of mind ofdefendant is insufficient to form the basis for the requisite "facts of an evidentiary character. . . demonstrating reasonable cause to believe the defendant committed the crimecharged" (id. at 102 [internal quotation marks omitted]).
I would therefore reverse the judgment and dismiss the misdemeanor information.Present—Scudder, P.J., Centra, Carni, Sconiers and Green, JJ.