The Misdemeanor Complaint, sworn out by Police Officer Steven Remenar, provides, in pertinent part, that:

Defendant is charged with Criminal Contempt in the Second Degree, Penal Law § 215.50(3). He is alleged to have warned the complainant, his son, that he would have the complainant and the complainant's mother evicted, and that this would "hurt real bad," in violation of a Family Court Order of Protection that, inter alia, ordered the defendant to "[r]efrain from ... threats" against the complainant. Defendant moves to dismiss for facial insufficiency, arguing that his conduct did not constitute a "true" threat, since it threatened only "legal action." Alternatively, defendant argues that the Family Court Order of Protection was ambiguous and that defendant "could not have conceivably imagined that [it] prohibited" this conduct. For the reasons that follow, the Court rejects these arguments.

A Misdemeanor Information serves the same role in a misdemeanor prosecution that an Indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518, 16 N.E.3d 1150, 992 N.Y.S.2d 672 2014); People v Alejandro, 70 NY2d 133, 138-39, 517 N.Y.S2d 927, 930-31, 511 N.E.2d 71, 74 (1987). Accordingly, a Misdemeanor Information must set forth "nonhearsay allegations which, if true, [*2]establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 NY3d 225, 228-29, 906 N.E.2d 381, 383, 878 N.Y.S.2d 653, 655 (2009) (citing People v Henderson, 92 NY2d 677, 679, 685 N.Y.S.2d 409, 708 N.E.2d 165(1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229, 906 N.E.2d at 383, 878 N.Y.S.2d at 655.

The prima facie case requirement does not necessitate that the Information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115, 512 N.Y.S2d 652, 657, 504 N.E.2d 1079, 1084 (1986). Rather, the Information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v Casey, 95 NY2d 354, 360, 717 N.Y.S2d 88, 91, 740 N.E.2d 233, 236 (2000). A court reviewing for facial insufficiency must subject the allegations in the Information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§ 100.40, 100.15; People v Jackson, 18 NY3d 738, 747, 944 N.Y.S2d 715, 721-22, 967 N.E.2d 1160, 1166-67 (2012). See also Casey, 95 NY2d at 360, 717 N.Y.S2d at 91, 740 N.E.2d at 236.

Finally, specifically with respect to motions to dismiss addressing the scope of an order of protection, the Court of Appeals has indicated that the preferred course in most such cases is not to dismiss the case but to permit the defendant to assert the claim as a trial defense. People v. Konieczny, 2 NY3d 569, 577, 780, N.Y.S.2d 546, 552 813 N.E.2d 626, 632 (2004) ("[W]hether the order was valid on the date of the contumacious conduct was a matter to be raised as a defense to the contempt charge, not by insistence that this information was jurisdictionally defective.") In addition, as this Court has noted, public policy strongly counsels in favor of deterring defendants from violating orders of protection as a means of testing their validity. People v. Ellis, 45 Misc 3d 716, 994 N.Y.S.2d 510 (Crim. Ct. NY County 2014) (Statsinger, J.).

An order of protection is ambiguous when its terms are so unclear that a person of ordinary intelligence would be unable to understand what conduct might violate the order. See, e.g., N.L.R.B. v. Bell Oil & Gas Co., 98 F.2d 405 (5 th Cir. 1938) (an ambiguous order is one that is "confusing to one of ordinary intelligence"). Thus, for example, People v. Roblee, 70 AD3d 225, 228 890 N.Y.S.2d 166, 169 (3d Dept. 2009), found an order of protection ambiguous. There, defendant was charged with criminal contempt after contacting the person named in the order by mail from prison. But the box prohibiting contact by mail was not checked, and a handwritten "no contact" provision "could be interpreted as prohibiting [only] physical or in-person contact." Id.

By this standard, the Order of Protection here is not ambiguous. It prohibited the defendant from making "threats," and did not contain any limitation on their nature. While defendant seems to suggest that a natural reading of the Order would restrict the term to threats of violence, there is no basis for reading the Order that narrowly. The other actions prohibited by the Order are not limited to acts of physical violence against the persons protected by the Order: the list includes identity theft, grand larceny, and "any criminal offense," including clearly, those that do not involve violence.

Accordingly, the Court rejects defendant's argument that the Order of Protection is ambiguous.

When defendant warned his son that he would have the son and the son's mother evicted and that it would "hurt real bad," he violated the provision in Order of Protection that he refrain from "threats" against those parties. While neither the Order itself nor the relevant Family Court statutes define this term, its ordinary meaning clearly covers this conduct.

Blacks Law Dictionary (9th ed. 2009) defines a "threat" as a "communicated intent to inflict harm or loss on another or on another's property." And a "threat" is a "true threat"when "an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury." People v. Bonitto, 4 Misc 3d 386, 777 N.Y.S.2d 900 (Crim. Ct. NY County 2004) (citation and internal quotation marks omitted). Both of these standards are met here. Defendant's communication clearly intended the intent to inflict harm, that harm being eviction. And there is certainly a reasonable inference, sufficient at least at the pleading stage, that the complainant interpreted the communication as a true threat of injury. He did, after all, report it to the police.

Accordingly, defendant's conduct constituted a "threat," in violation of the Family Court Order of Protection.

For the foregoing reasons, defendant's motion to dismiss for facial insufficiency is denied; a Huntley/Dunaway hearing is granted.

For the foregoing reasons, defendant's motions to dismiss for facial insufficiency is denied. The Court orders a Huntley/Dunaway hearing.

Judge of the Criminal Court