Criminal Court of the City of New York, Bronx County, December 4, 2017

The Bronx Defenders, Bronx (Peter Coleman of counsel), for defendant.

Darcel D. Clark, District Attorney, Bronx (Megan Leo of counsel), for plaintiff.

These cases present several scenarios in which the People have charged the defendant with criminal contempt in the second degree (Penal Law § 215.50 [3]) for allegedly violating an order of protection. The People are attempting to proceed despite the absence of any sworn allegations from the protected party in the complaint. The defense moves to dismiss all three dockets, contending each of the methods to corroborate these complaints proposed by the People is flawed and therefore the accusatory instruments are facially insufficient.

The defendant contends that the complaints fail to (1) recite nonhearsay allegations that the defendant intentionally violated the order of protection, (2) allege that the defendant acted intentionally, and (3) contain nonhearsay allegations that establish the identity of Chastity Bartley, the complainant. In addition, on docket No. 2017BX024770, the defendant alleges that the accusatory instrument fails to adequately allege that he did not stay away from the home of Chastity Bartley.{**58 Misc 3d at 537}

Docket No. 2017BX004501

On February 22, 2017, the People filed a superseding information, signed by a police officer, charging the defendant with two counts of criminal contempt in the second degree (Penal Law § 215.50 [3]). The superseding information reads, in pertinent part:

"Deponent states, that at the above time and place, deponent observed the defendant inside [*2]of said location along with CHASTITY BARTLEY. Deponent further states that he has reviewed the female's identification and confirmed her to be CHASTITY BARTLEY.

"Deponent further states that he has reviewed a valid order of protection issued by the Honorable Judge Busching of the Bronx County Criminal Court on November 10, 2016, and valid until November 9, 2018 and said order directs defendant in pertinent part to stay away from CHASTITY BARTLEY and her home. Deponent further states that the defendant had knowledge of the aforementioned order of protection, in that said order indicates the defendant was present in court when said order was issued and the defendant signed said order.

"Deponent further states the defendant stated in sum and substance, I JUST WANTED TO TALK TO HER. I KEEP GOING BACK BECAUSE I HAVE NO PLACE TO GO."

Docket No. 2017BX011719

On this docket, the defendant is charged with two counts of criminal contempt in the second degree for allegedly violating the same order of protection on March 20, 2017.

The information, signed by a police officer, alleges that the defendant committed the crime of criminal contempt as follows:

"Deponent states that at the above time and place, deponent observed the defendant with CHASTITY BARTLEY inside of said location. Deponent further states he observed the defendant talking and kissing CHASTITY BARTLEY. Deponent further states that he has reviewed the female's Department of Motor Vehicle records and confirmed her to be{**58 Misc 3d at 538} CHASTITY BARTLEY.

"Deponent further states that he has reviewed a valid order of protection issued by the Honorable Judge Busching of Bronx Criminal Court on November 10, 2016, and valid until November 9, 2018 and said order directs defendant in pertinent part to stay away from CHASTITY BARTLEY and refrain from communication with CHASTITY BARTLEY. Deponent further states that the defendant had knowledge of the aforementioned order of protection in that said order indicates defendant was present in court when said order was issued and he signed said order."

Docket No. 2017BX024770

On this docket, defendant is charged with two counts of criminal contempt in the second degree based upon two incidents that the deponent police officer says took place on June 17, 2017, inside of the complainant's residence. The superseding information alleges in pertinent part:

"Incident 1

"Deponent states at the above time and place, the residence of CHASTITY BARTLEY, deponent observed the defendant inside of said location with CHASTITY BARTLEY. Deponent further states that she has reviewed the female's Department of Motor Vehicle records and confirmed her to be CHASTITY BARTLEY.

"Deponent further further [sic] states that she has reviewed a valid order of protection issued by the Honorable Judge Julio Rodriguez III of the Bronx Criminal Court on May 1, 2017, and valid until June 28, 2017, and said order directs defendant in pertinent part to stay away from CHASTITY BARTLEY and the home of CHASTITY BARTLEY. Deponent further states that defendant had knowledge of the aforementioned order of protection, in that said order indicates defendant was present in court when said order was issued.

"Incident 2

"Deponent states that at the above time and place, deponent observed the defendant inside of said location, a location known to deponent as the apartment building where CHASTITY BARTLEY resides. Deponent further states she observed the{**58 Misc 3d at 539} defendant waiting for the elevator. Deponent further states that when asked why the defendant returned to said location, the defendant stated in sum and substance, I JUST WANT TO GET MY STUFF. SHE TOLD ME I COULD COME GET MY STUFF.

"Deponent further states that she knows said location to be the apartment building where CHASTITY BARTLEY resides because deponent has known CHASTITY BARTLEY and has previously visited CHASTITY BARTLEY at said location.

"Deponent further states that informant is in possession of a valid order of protection issued by the Honorable Judge Julio Rodriguez III of the Bronx Criminal Court on May 1, 2017 and valid until June 28, 2017, and said order directs defendant in pertinent part to stay away from informant and the home of informant. Deponent further states that defendant had knowledge of the aforementioned order of protection, in that said order indicates defendant was present in court when said order was issued."

The court must decide whether the defendant's violation of the order of protection is sufficiently established by sworn allegations that the defendant was observed with an individual whose identity as the protected party was established by a deponent police officer checking (1) an unspecified form of identification or (2) New York State Department of Motor Vehicles records. Additionally, the court must determine if the deponent's past familiarity with the protected party's residence is sufficient to establish that it was her home at the time of an alleged violation.

To be facially sufficient, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." (People v Kalin, 12 NY3d 225, 228-229 [2009].) The allegations in the information must be sufficient to "give an accused notice sufficient to prepare a defense and . . . prevent a defendant from being tried twice for the same offense." (People v Casey, 95 NY2d 354, 360 [2000].) The allegations need not be sufficient to establish defendant's guilt of the crime charged beyond a reasonable doubt. (People v Jennings, 69 NY2d 103{**58 Misc 3d at 540} [1986].) The allegations must be given a "fair and not overly restrictive or technical reading." (People v Casey at 360.) The court must assume the truthfulness of those allegations and consider any reasonable inferences that may be drawn from them. (CPL 100.40, 100.15; People v Jackson, 18 NY3d 738 [2012].)

The charge of criminal contempt in the second degree (Penal Law § 215.50 [3]) requires that the defendant engage in "[i]ntentional disobedience or resistance to the lawful process or other mandate of a court." To be sufficient, the allegations must establish that the order was issued, the defendant was aware of the order and he engaged in intentional disobedience of the order (see CJI2d[NY] Penal Law § 215.50 [3]). Here, all orders require the defendant to stay away from Chastity Bartley and her home and to refrain from communicating with her. Knowledge of the terms and conditions of the order, specifically the stay away provisions, may be inferred from the fact that the defendant's signature is affixed to each order in question. (People v Inserra, 4 NY3d 30 [2004].)

The leading New York case on facial sufficiency, Casey, also involves an accusation of criminal contempt based on a violation of an order of protection. The Casey [*4]deponent/complainant alleged that she had been issued an order of protection and that the defendant had violated its terms. The order of protection itself was not provided to the court, although the Court of Appeals acknowledged it would have been the better practice to do so. Nevertheless, the court determined it could be inferred that the complainant had firsthand knowledge of its contents. (Casey at 360.)

As suggested in Casey, the People followed the "better practice" and filed copies of the protective orders with the court. However, the question of whether the person observed by the police to be with the defendant was the complainant, or whether the defendant was in her residence, cannot be inferred easily from the facts alleged in that the protected party is not the deponent. Apparently, she is uncooperative in the prosecution of these matters as is sometimes the situation in domestic violence cases.^[FN*]

The crux of defendant's argument is that the accusatory instruments must be dismissed because the charges are based{**58 Misc 3d at 541} upon conclusory, unsupported allegations. To support his position, defendant relies on a recent decision issued by Judge Steven Statsinger of New York County Criminal Court, People v Pandiello (54 Misc 3d 496 [2016]). Defendant contends the facts in Pandiello are analogous to those here.

Judge Statsinger held in Pandiello that in a criminal contempt case based on an alleged violation of an order of protection, the complainant's identity must be established as an element of the crime.

[1, 2] This court disagrees. The statute does not require the People to establish the complainant's identity. Whether the protected party's name is actually Chastity Bartley is irrelevant so long as it is clear that the defendant was ordered to stay away from the person described in the complaint and failed to do so.

All that is required is that the People establish some basis for knowing who the complainant is or where she resides in order to establish a violation. Under ordinary circumstances, a deponent (typically a police officer or detective) cannot say that the person he observed with the defendant was the protected party without further explanation. Such an allegation is conclusory. Rather, the deponent must set forth some factual basis to support his conclusion that this is the protected party. Requiring the establishment of a factual basis is consistent with our state's jurisprudence in other cases where facts establishing the nature of a particular item in question must be alleged.

Thus, where a defendant is alleged to possess illegal drugs or a gravity knife, a deponent cannot say that the substance or item recovered is the contraband alleged. Instead, he must allege specific facts which support his conclusion, such as the appearance of the object, an explanation that his training or experience have enabled him to identify the object, or the manner in which it was used. (People v Dumas, 68 NY2d 729 [1986]; see also People v Dreyden, 15 NY3d 100 [2010] [officer's statement that defendant possessed gravity knife, without specifying basis as to how he knew type of knife, was insufficient]; compare with People v Octavio, 34 Misc 3d 790 [Crim Ct, Richmond County 2011] [officer's statement that he opened and tested knife provided sufficient basis for conclusion that weapon was gravity knife].)

This logic underlying the Dumas holding has been extended beyond contraband. When a [*5]crime involves a child, for instance,{**58 Misc 3d at 542} a deponent cannot simply state that the person is a child, without providing some factual basis for that determination. (People v Gomez, 30 Misc 3d 643 [Sup Ct, Bronx County 2010, Best, J.]; People v Mercado, 184 Misc 2d 40 [Crim Ct, Bronx County 2000, Kiesel, J.].)

In People v Friedman (48 Misc 3d 817 [Crim Ct, Queens County 2015, Koenderman, J.]), the deponent alleged that the defendant was standing in front of the residence of the complainant without providing any additional information about how he knew it was where she lived. The court held that the information was facially insufficient. The court explained that the factual basis for the knowledge may be established in several ways: by personal observation, by information provided from someone with knowledge of a person's pattern of behavior or by the person herself. (See also People v Diaz, 48 Misc 3d 1208[A], 2015 NY Slip Op 51009[U] [Crim Ct, NY County 2015, Statsinger, J.].)

[1] Applying these principles to the facts, the People cannot convert a complaint by citing the deponent's review of an "unspecified form of identification." Without knowing what form of identification was reviewed, there is no factual basis for the court to assess its reliability.

[2] In contrast, Department of Motor Vehicles (DMV) records suffice to establish, for pleading purposes, that the individual observed by the deponent officer is the protected party. In New York State, all driver's licenses and non-driver identification cards are issued in accordance with the rules and regulations set forth by the Commissioner of the Department of Motor Vehicles. To receive such identification, applicants must furnish proof of identity, age and their social security number. (See Vehicle and Traffic Law §§ 490, 502.) These documents, which include a photograph of the license holder, are routinely relied upon by police and other government agencies to establish individuals' identities.

The protected party's residence has also been sufficiently established by the facts alleged. The allegation that the deponent "has known CHASTITY BARTLEY and has previously visited CHASTITY BARTLEY at said location" is buttressed by the deponent's review of the complainant's motor vehicle records and observation of the defendant with the complainant inside the residence and the defendant's statement{**58 Misc 3d at 543} the complainant told him he could come there to retrieve his belongings.

Accordingly, defendant's motion to dismiss for facial insufficiency is decided as follows:

Docket No. 2017BX004501

Defendant's motion to dismiss is granted as the identity of the protected party is based upon conclusory allegations.

Docket No. 2017BX011719

Defendant's motion is denied. The deponent's review of DMV records provides a sufficient basis to establish the identity of the protected party.

Docket No. 2017BX024770

Defendant's motion is denied. The deponent's review of DMV records and prior familiarity with the protected party, as well as the attendant circumstances, establish that the defendant failed to stay away from the protected party and her residence.