| People v Coleman |
| 2013 NY Slip Op 01638 [104 AD3d 1134] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v KerryA. Coleman, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Stephen T. Miller, A.J.),rendered April 6, 2009. The judgment convicted defendant, upon his plea of guilty, ofcriminal contempt in the first degree.
It is hereby ordered that the judgment so appealed from is unanimously reversed onthe law, the plea is vacated and the matter is remitted to Monroe County Court for furtherproceedings on the superior court information.
Memorandum: On appeal from a judgment convicting him upon his plea of guilty ofcriminal contempt in the first degree (Penal Law § 215.51 [c]), defendant contendsthat his guilty plea was not knowingly, voluntarily and intelligently entered. Althoughthat contention is not preserved for our review, we conclude that defendant's statementsduring the plea colloquy "cast significant doubt upon his guilt with respect to the crimeof [criminal contempt in the first degree as charged in the superior court information(SCI)], and thus this case falls within the exception to the preservation requirement" (People v Jones, 64 AD3d1158, 1159 [2009], lv denied 13 NY3d 860 [2009]; see People vLopez, 71 NY2d 662, 666 [1988]). An essential element of the crime of criminalcontempt in the first degree pursuant to Penal Law § 215.51 (c) is that thedefendant has violated an order of protection issued pursuant to "sections two hundredforty and two hundred fifty-two of the domestic relations law [regarding orders ofprotection issued during child custody and divorce proceedings], articles four, five, sixand eight of the family court act [regarding child custody, paternity, parental rights andfamily offenses, respectively, or] section 530.12 of the criminal procedure law [regardingvictims of family offenses]." Another essential element of the crime is that defendant has"been previously convicted of the crime of . . . [, inter alia,] criminalcontempt in the . . . second degree for violating an order of protection asdescribed herein within the preceding five years" (Penal Law § 215.51 [c]). Here,during an attempt to plead guilty, defendant indicated that he had been previouslyconvicted of the crime of criminal contempt in the second degree and that he had anappeal pending with respect to that conviction. He further indicated that such convictionresulted from his actions at a school board meeting and that the order of protection thathe was alleged to have violated in this offense was issued during that prior criminalcontempt proceeding. County Court stated that it could not accept defendant's pleabecause defendant was challenging the predicate conviction. At a subsequent proceeding,defendant agreed with the prosecutor's statement that defendant was no longerchallenging the [*2]predicate conviction, and the courtaccepted his guilty plea. Although the court, before accepting defendant's plea,questioned him regarding his previous challenge to the predicate conviction, it did notquestion him concerning the basis for the issuance of the instant order of protectionviolated by defendant or concerning the basis of defendant's predicate conviction.We conclude that defendant's factual recitation negated essential elements of thecrime to which he pleaded guilty inasmuch as his colloquy indicated that the order ofprotection was not issued pursuant to the statutory sections set forth in Penal Law§ 215.51 (c), and that the predicate conviction was not based upon a violation ofsuch an order of protection. Thus, the court had a "duty to inquire further to ensure thatdefendant's guilty plea [was] knowing and voluntary" (People v Lopez, 71 NY2d662, 666 [1988]). Consequently, as the People correctly concede, "[a]lthough [the court]made some further inquiries of defendant, none of them [was] even remotely sufficient todetermine that the plea was entered intelligently and with knowledge of the nature of thecharge" (People v Roy, 77AD3d 1310, 1311 [2010] [internal quotation marks omitted]). We therefore reversethe judgment, vacate the plea, and remit the matter to County Court for furtherproceedings on the SCI (seePeople v Jenkins, 94 AD3d 1474, 1475 [2012]; see also Roy, 77 AD3dat 1310).
Defendant further contends that the SCI is jurisdictionally defective because it failsto allege that he violated that part of the order of protection directing him to stay awayfrom the person on whose behalf the order was issued. "Because defendant's contentionis related to the sufficiency of the factual allegations, as opposed to a failure to allege thematerial elements of the crime, that contention does not survive defendant's guilty plea"(People v Price, 234 AD2d 978, 978-979 [1996], lv denied 90 NY2d 862[1997]). Inasmuch as we are vacating the plea, however, we address defendant'scontention, and we conclude that it lacks merit. The SCI is jurisdictionally sufficientbecause it alleges that defendant committed the crime of criminal contempt in the firstdegree and tracks the language of the relevant section of the Penal Law (see id.).Thus, if defendant seeks greater specificity, his remedy is to demand a bill of particulars(see People v Starkweather,83 AD3d 1466, 1466 [2011]).
In light of our determination, we do not address defendant's remaining contentions.Present—Smith, J.P., Fahey, Valentino, Whalen and Martoche, JJ.