Defendant, charged with Criminal Contempt in the Second Degree in violation of Penal Law § 215.50(3), moves to dismiss the accusatory instrument for facial insufficiency. For the reasons discussed below, the Court GRANTS the motion to dismiss. Sealing is stayed for 30 days.^[FN1]

I. FACTUAL BACKGROUND

A. The Allegations

Defendant was arraigned on July 3, 2013, charged with a Assault in the Third Degree and various related offenses; the complainant in that case was his girlfriend, Migdalia Roman. At that arraignment, the Court issued a written Temporary Order of Protection ("T.O.P.") in favor of Ms. Roman and also told the defendant that he would have to "stay away from" her "while [the] case was pending".

According to the accusatory instrument in the instant case, scarcely three days later, on July 6, 2013, at approximately 3:57 a.m., a police officer observed the defendant standing in the lobby of the building where Ms. Roman lives. The defendant also telephoned her from the lobby and stood outside her window while yelling. The instrument alleges that this conduct is in violation of the T.O.P. issued at the July 3, 2013, arraignment, and that that T.O.P. expires on January 2, 2014.

While accusatory instrument alleges a 2014 expiration date, due to an apparent clerical error, [*2]the actual expiration date on the T.O.P. is January 2, 2013.

B. Legal Proceedings

On July 6, 2013, the defendant was arraigned on a Misdemeanor Complaint charging him with Criminal Contempt in the Second Degree, in violation of Penal Law §215.50(3). He was released on his own recognizance, and the case was adjourned to July 8, 2013, for a supporting deposition from Ms. Roman and to join the underlying case.

The People did not file a supporting deposition on July 8, 2013. On September 6, 2013, however, they filed a Domestic Incident Report ("DIR"); the Court deemed the complaint converted and set a motion schedule.

Defendant filed the instant motion to dismiss on January 10, 2014, and the People filed their response on February 13, 2014. In their response, however, the People requested that the Court reserve decision on the motion pending review of the minutes from defendant s arraignment on the underlying case. The People provided those minutes to the Court on March 28, 2014, and the motion has been sub judice since then.

II. DISCUSSION

According to the accusatory instrument, on July 6, 2013, the defendant was seen in in the lobby of the building where Ms. Roman lives. He is also alleged to have telephoned her from the lobby and stood outside her window while yelling. These actions are alleged to be in violation of a T.O.P. issued by the this Court on July 3, 2013. However, since that T.O.P. bears an expiration date that predates July 6, 2013, the date defendant is accused of violating it, there was no valid T.O.P. in effect on that date. The Court is accordingly compelled to dismiss the charge of Criminal Contempt in the Second Degree.

A. The Information

Because this motion requires a detailed examination of the content of the accusatory instrument, the complete text of its factual recitation, as sworn out by Officer Rodney Jiles, is set out below.

I am informed by Migdalia Roman, of an address known to the District Attorney's Office, that the defendant called her apartment from the lobby of the building where she lives, but Ms. Roman ignored the call. I am further informed by Ms. Roman that she observed the defendant outside of her window yelling in part and in substance: Maggie, Maggie, I love you, Let me in!"

I observed the defendant standing in the lobby of the building where Ms. Roman lives, near the intercom, and the defendant stated in part and in substance to me: "I'm here to pick up my stuff from my girls apartment it's number 2A. I have a copy of the order of protection that they gave to me."

The defendant's conduct is in direct violation of a valid Order of Protection, issued in New York County Criminal Court by Honorable Judge Mandlebaum on July 3, 2013 in conjunction with Docket #2013NY050799. The order expires on January 2, 2014 and orders the defendant to stay away from Ms. Roman and her place of residence. The Order of Protection was signed by the defendant.

To be facially sufficient, an Information must contain non-hearsay allegations providing reasonable cause to believe that the People can prove every element of the crime charged. CPL §100.40(1)(a)-(c). See also People v Dumas, 68 NY2d 729, 506 NYS2d 319, 497 NE2d 686 (1986); People v Alejandro, 70 NY2d 133, 517 NYS2d 927, 511 NE2d 71 (1988); People v McDermott, 69 NY2d 889, 515 NYS2d 225, 507 NE2d 1071 (1987); People v Case, 42 NY2d 98, 396 NYS2d 841, 365 NE2d 872 (1977). Reasonable cause to believe that a person has committed an offense "exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it." CPL §70.10 (2).

In criminal contempt cases, however, case law supports an additional pleading requirement. There must be a reasonable basis for concluding that the order of protection the defendant is accused of violating was a "lawful mandate." People v. Smith, 4 Misc 3d 909, 782 N.Y.S.2d 596 (Crim Ct NY County 2004). A legally defective order of protection cannot serve as the basis for a criminal contempt prosecution. People v. Panetta, 41 Misc 3d 614, 972 NYS2d 446 (Middletown City Court 2013) (dismissing where order of protection did not comport with CPL § 530.13 because it was issued in favor of a party not covered by that section; "an order of protection issued in favor of a party not designated in CPL § 530.13(1) is not a lawful court mandate and cannot support a prosecution for criminal contempt under PL § 215.50(3)"); Smith, 4 Misc 3d at 913, 782 N.Y.S.2d at 599 (granting trial order of dismissal of § 215.50(3) count because temporary order of protection in favor of a place, as opposed to a person, was "not a lawful order.")

Here, since the T.O.P. was not a "lawful mandate," the accusatory instrument is facially insufficient and must be dismissed.

C. Legal Analysis

A violation of Penal Law § 210.50(3) results from the "[i]ntentional disobedience or resistance to the lawful process or other mandate of a court. . . ." The T.O.P. in this case, in addition to other provisions, directed the defendant to stay away from Migdalia Roman and her home. It was issued on July 3, 2013, and, due to an apparent clerical error, provides that it expires on January 2, 2013. In other words, it expired both before the date that it was issued and before the date of the alleged violation. It was accordingly not a "lawful ... mandate" to stay away from Ms. Roman on July 6, 2013.

CPL § 530.12(6), the section under which the instant T.O.P. was issued, requires that a written order of protection "plainly state the date that such order expires." This provision "makes clear that the expiration date is a crucial portion of the order of protection." People v. Cordwell, 11 AD3d 731, 783 N.Y.S.2d 409 (3d Dept 2004). In Cordwell, the court found that a final order of protection was ineffective because the order erroneously provided that it was to remain in effect until the day before it was signed. Id. at 731, 410. The Appellate Division upheld the dismissal of an indictment charging defendant with felony contempt, and held that it did not matter that the trial judge had orally informed the defendant that the order would remain in effect during the period of the conditional discharge. Id. The protective order "had expired according to its own terms [*4]before ... the date when defendant allegedly violated its terms." Id.

This case is indistinguishable from Cordwell. Here, as there, the T.O.P. was not a lawful mandate, because the inclusion of an expiration date that had already passed rendered the T.O.P. ineffective. It had expired according to its own terms on January 2, 2013, which was before July 6, 2013, the date when defendant is accused of violating it. Nor does it matter that the court told the defendant that the order would be in effect while the case was pending; that oral statement did not modify the terms of the writing. Id.; People v. Rivas, 17 Misc 3d 134(A), 851 NYS2d 73 (App Term 9th and 10th Dists 2007) (oral statement that final order of protection would last one year did not modify written order with a three-year duration). Since there was no valid written T.O.P. in effect on July 6, 2013, the Information charging defendant with criminal contempt for violating the T.O.P. on that date must be dismissed for facial insufficiency.

Although this holding disposes of the motion at bar, it bears noting that there is, at least arguably, a second order directing the defendant to stay away from Ms. Roman: the court's oral instruction at defendant's arraignment on the underlying case to stay away from her while that case was pending. Whether that oral order was a lawful and effective stay-away order in favor of the complainant, independent of the written T.O.P., is a complicated and interesting legal question, as is the question whether defendant can be prosecuted under § 215.50(3) for violating it. See People v. McCowan, 85 NY2d 985, 652 NE2d 909, 629 NYS2d 163 (1995). But those thorny issues need not be addressed here, because defendant was not charged with violating that oral order. See, e.g., Smith, 4 Misc 3d at 913, 782 at 599 (after dismissing contempt charge based on invalid written order of protection, court noted that while there was also an oral stay-away order, defendant was "not charged with violating any such oral directive"); People v. Caldwell, 159 Misc 2d 709, 711-12, 606 NY.S2d 572 , 574 (Crim Ct NY County 1993) (nothing that, in a criminal contempt case involving potentially conflicting written orders of protection, defendant was "not charged ... with violating" a contemporaneous oral order). The Court will accordingly stay sealing for 30 days to give the People an opportunity, if they wish, to file a Superceding Information within the applicable speedy trial period.

II. CONCLUSION

For the foregoing reasons, the Information is dismissed as facially insufficient.

The Court directs that sealing be stayed for 30 days from the date of this decision, and grants the People leave to file a timely, facially sufficient Information, if they so desire. See People v. Nuccio, 78 NY2d 102, 104-05, 575 N.E.2d 111, 113, 571 N.Y.S.2d 693, 695 (1991).

This constitutes the Decision and Order of the court.

Dated: May 6, 2014______[*5]____________________

New York County, New YorkSteven M. Statsinger

Judge of the Criminal Court