The defendant is charged by a superseding misdemeanor information with

violating Penal Law 215.50 (3) which provides that: "[a] person is guilty of criminal

contempt in the second degree when he engages in any of the following conduct: (3)

Intentional disobedience or resistance to the lawful process or other mandate of a court..."

The superseding information, dated January 29, 2007, charges the defendant with

violating, on January 17, 2007, a temporary order of protection issued by the Supreme

Court of Westchester County on January 5, 2007, in connection with a matrimonial

matter, that was by its terms effective through January 25, 2007.

Defendant moves to dismiss the superseding information pursuant to CPL 170.35

(a) on the ground, among others, that absent an allegation that he had notice that

the temporary order of protection was in effect on January 17, 2007, the information

was defective under CPL 100.40 (1)(c).

.

The temporary order of protection reads that it was mailed on January 5, 2007 to

Debra Palazzo, Esq., attorney for defendant, and also sent by fax. There is no non-

hearsay allegation in the superseding information or statement in the temporary order of

protection that the defendant received a copy of the temporary order of protection or was

otherwise aware of it.

A defendant can receive knowledge of an order of protection sufficient to provide

the intent needed to support a charge of violation of an order of protection in one of three

ways:

The defendant is present in court when the order of protection is issued.(The information in the underlying order of protection can be used to supply this information.) People v. Whidbee, 8 Misc 3d 1023A.

The defendant acknowledges receipt of the order of protection by signing it. People v. Inserra, 4 NY3d 30,33; People v. Gomez, 9 Misc 3d 1117A; or

The defendant is personally served with a copy of the order of protection: See People v. Griffin, 10 Misc 3d 626, 629-30.

The People attempt to add a fourth method; service upon the attorney for the

defendant under CPLR 318 which provides for the designation of someone as an

agent for service. The inference is that since the attorney received the temporary

order of protection, the attorney must have communicated its contents to her client.

But an inference of communication does not meet the requirement of CPL 100.40

(c) and 100.15 that non-hearsay allegations establish, if true, every element of

the offense charged, in this case, intent. People v. Alejandro, 70 NY2d 133, 135-7.

There would have to have been a non-hearsay allegation that the client learned of the

order of protection through his attorney; something unlikely to be known by a third

party and absent here. Of course, personal service of a copy of the order of

protection on the defendant himself under the general service provisions of the

CPLR would provide sufficient notice. See People v. Perez, 189 Misc 2d 516, 519.

But this was not done here.

The People also point to a so-ordered stipulation effected by defendant's

counsel and his wife's counsel in the matrimonial matter in Supreme Court on

January 3, 2007 that the temporary order of protection be extended through January

25, 2007. But, here, again, there is no allegation that the defendant learned of

contents of the stipulation from his attorney that put him on notice of the temporary

order of protection.

Because there is no non-hearsay allegation that defendant knew of a valid

temporary order of protection in force on January 17, 2007, his motion is

granted and the superseding misdemeanor information is dismissed.

The forgoing constitutes the decision and order of this court.

_________________________

DAVID OTIS FULLER, JR.

VILLAGE JUSTICE

Dated: March 2, 2007 [*2]