The defendant is charged with Criminal Contempt in the second degree (P.L. § 215.50(3)), a class A misdemeanor. By way of omnibus Notice of Motion and Affirmation filed March 4, 2019, the defendant now moves this court to dismiss the accusatory instrument as facially insufficient pursuant to C.P.L. §§ 100.40 and 170.30. The defendant also moves for suppression of statements noticed pursuant to C.P.L. § 710.30(1)(a) and preclusion of unnoticed statements and identification evidence. The People oppose through papers filed March 21, 2019. After consideration of the parties' submissions and the relevant law, and for the reasons that follow, the defendant's motion to dismiss the superseding accusatory instrument is GRANTED. Therefore, the Court need not address the defendant's other motions.

On November 7, 2018, the defendant was arrested and arraigned on one count each of Assault in the third degree, Criminal Contempt in the second degree, and Harassment in the second degree. This complaint, in relevant part, alleges as follows:

[Police Officer Brian Travis] is informed by JACQUELINE NELSON, that [on or about November 7, 2018 at approximately 6:00 AM inside of 2120 Crotona Avenue Apt. No.24, County of Bronx, State of New York], defendant struck informant about the left hand with a closed fist. Deponent is further informed by informant that defendant then struck informant about the lower back with a closed fist.

Deponent is further informed by informant that as a result of defendant's aforementioned conduct, informant suffered swelling to her left hand and bruising and redness to her lower back, as well as, experienced annoyance, alarm, and fear for her physical safety.

Deponent further states that JACQUELINE NELSON is in possession of a valid order of protection issued by the Honorable Judge Pitt of the Bronx County Criminal Court on April 17, 2018 and valid until April 16, 2023 and said order directs defendant, in pertinent part, to stay away from the home of Jacqueline Nelson and to refrain from committing the offenses of assault and harassment against Jacqueline Nelson. Deponent further states that defendant had knowledge of the aforementioned order of protection, in that said order indicates that defendant was present when the aforementioned order was issued, defendant was advised of the issuance and contents of said order, and the order contains defendant's signature on the line which reads "Defendant's signature."

At the defendant's arraignment, the People also filed a copy of the order of protection but remained in need of Ms. Nelson's signed supporting deposition to fully convert the complaint into an information.

On December 21, 2018, the People filed and served a superseding information charging only a single count of Criminal Contempt in the second degree. This accusatory instrument, in relevant part, alleges as follows:

[Police Officer Brian Travis] states that, [on or about November 7, 2018 at approximately 7:56 AM inside of 2120 Crotona Avenue Apt. No.24, County of Bronx, State of New York], he observed defendant to be inside of the above location. Deponent further states that he knows the above location to be the home of JACQUELINE NELSON in that he observed Jacqueline Nelson's New York State Driver's License and the above location was listed as her residence. Deponent further states that defendant stated in sum and substance, BABY PLEASE. YOU DIDN'T TELL ME YOU WERE GOING TO DO THIS. I WOULD'VE JUST LEFT.

Deponent further states that JACQUELINE NELSON is in possession of a valid order of protection issued by the Honorable Judge Pitt of the Bronx County Criminal Court on April 17, 2018 and valid until April 16, 2023, and said order directs defendant, in pertinent part, to stay away from the home of Jacqueline Nelson. Deponent further states that defendant had knowledge of the aforementioned order of protection, in that said order indicates that defendant was present when the aforementioned order was issued, defendant was advised of the issuance and contents of said order, and the order contains defendant's signature on the line which reads, "Defendant's signature."

In support of this instrument, the People filed and served a copy of the underlying order of protection but no other documentation. In contrast to the initial complaint, this instrument is devoid of any allegations that Ms. Nelson was present with the defendant at the location.

The defendant filed his omnibus motion, including a motion to dismiss the People's superseding information, on March 4, 2019. The People responded through opposition papers filed March 21, 2019.

The defendant argues that the People's superseding accusatory instrument is facially [*2]insufficient in that it relies upon hearsay to establish an essential element of Criminal Contempt in the second degree. Specifically, the defendant contends that the People are required to establish the identity of the party protected by an order of protection through non-hearsay means, and that the People's failure to provide DMV records or a certified copy of that party's driver's license renders the instrument facially insufficient.

The People oppose, contending that a person's presence in public renders that person's identity subject to public knowledge. The People acknowledge that the deponent must nonetheless plead some factual basis for his identification of the protected party, but argue that the allegation in the complaint, indicating that the deponent officer reviewed the complainant's New York State driver's license, is sufficient with no need for additional documentation.

Facial sufficiency is a non-waivable, jurisdictional prerequisite to a misdemeanor prosecution. See People v. Alejandro, 70 NY2d 133, 139 (1987); People v. Hall, 48 NY2d 927 (1979). In order to be facially sufficient, an information, together with any supporting depositions, must: (1) allege facts of an evidentiary character supporting or tending to support the charges, pursuant to C.P.L. § 100.15(3); (2) provide reasonable cause to believe that the defendant committed the offenses charged in the information; and (3) include non-hearsay factual allegations, which, if true, establish every element of the offense charged. See C.P.L. § 100.40(1) (a) — (c). Conclusory allegations are insufficient. See People v. Dumas, 68 NY2d 729 (1986).

While the burden is on the People to establish a prima facie case for the offenses charged in the accusatory instrument, this requirement "is not the same as the burden of proof beyond a reasonable doubt required at trial." People v. Kalin, 12 NY3d 225, 230 (2009). Rather, the accusatory instrument must contain allegations that "give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." See id. at 230 (internal citations and quotations omitted). When the factual portion of the information, together with any accompanying supporting deposition and viewed in the light most favorable to the People, fails to establish every element of the offense charged, the information is jurisdictionally defective. See People v. Casey, 95 NY2d 354 (2000); People v. Alejandro, 70 NY2d 133 (1987).

A person is guilty of Criminal Contempt in the second degree when he engages in "intentional disobedience or resistance to the lawful process or other mandate of a court . . ." C.P.L. § 215.50(3). To be facially sufficient, an information must contain factual allegations to establish that a court order was issued, that the defendant had knowledge of the order, and that the defendant engaged in intentional disobedience of that order. See CJI 2d[NY] Penal Law § 215.50(3).

The defendant, relying on People v. Pandiello, 54 Misc 3d 496 (Crim. Ct. NY Cty. 2016), argues that the accusatory instrument must establish the identity of the complainant as an essential element of the charged offense. See Defendant's Affirmation at 7. In Pandiello, it was alleged that the defendant was observed speaking with a person who was the subject of an order of protection, in violation of that order's "stay-away" provision. 54 Misc 3d 496, 497 (Crim. Ct. NY Cty. 2016). The court held that the identity of the protected party is an essential element of P.L. § 215.50(3) and required the complaint to establish the deponent police officer's basis for identifying her as such. Id. at 499-501.

Pandiello, however, is inapplicable here, where the superseding complaint does not allege that Ms. Nelson was actually present in the company of the defendant. Nor does the complaint accuse the defendant of violating the direct contact "stay-away" provision in the underlying order of protection.^[FN1] However, an order of protection can be violated in various ways depending on the parameters of that order. For example, a full "stay-away" order will generally also contain additional provisions instructing a defendant to stay away from the protected party's home, school, or place of employment. Where, as here, the alleged violation is something other than direct contact with the protected party, a complaint need only plead facts sufficient to establish that the defendant engaged in the offending conduct.

In the instant case, the complaint references only the order's provision instructing the defendant to stay away from Ms. Nelson's home. The complaint further alleges that the defendant was observed by the deponent inside of Ms. Nelson's home, which if true would constitute a violation of the specified provision in and of itself. Therefore, the complaint need not establish the Ms. Nelson's identity, but rather that the location in which the defendant was present was in fact her residence.

Where the resident herself is not a signatory to the complaint nor any supporting documents, the complaint must allege some factual basis for the deponent's conclusion that the location is in fact the place protected by the court's order. People v. Friedman, 48 Misc 3d 817 (Crim. Ct. Queens. Cty. 2015) ("[W]ithout explanation or support from any objective evidentiary facts, [deponent's] assertion that the place where she observed the defendant is the complainant's residence is a mere conclusory allegation"); see People v. Diaz, 45 Misc 3d 1208(A) (Crim. Ct. NY Cty. 2015) (The allegation that the apartment in which the detective found the defendant is either the home or business of [the protected party] is a 'conclusory allegation,' since it lacks any factual support").

Further, the factual basis for the deponent's conclusion must be pled without reliance on hearsay. People v. Simmons, 62 Misc 3d 1205(A) (Crim. Ct. Kings Cty. 2018); C.P.L. § 100.40(1)(c). In Simmons, the court reviewed an instrument charging Criminal Contempt in the second degree, wherein a police officer allegedly observed the defendant in violation of an order of protection by his presence at the protected party's home. 62 Misc 3d 1205(A) at *2 (Crim. Ct. Kings Cty. 2019). The deponent police officer stated she knew that the location was the home of the protected party because she had previously responded to that location, and on each such occasion, a female individual identified herself as the protected party. Id. The deponent also stated that she reviewed an official Department of Motor Vehicles (DMV) abstract and that those records reflected that location as the protected party's residence. Id. The court held that the protected party's statement identifying herself by name to the deponent did not satisfy the pedigree exception to the hearsay rule without a signed supporting deposition from the protected party. Id. at *2-3. The court further held that the deponent officer's review of DVM records was also hearsay without a certified DMV driving abstract. Id. at *3.

Accordingly, this Court must determine whether the factual allegations made by Officer Travis are sufficient to satisfy the prima facie requirement, and whether the information upon which he relied constitutes hearsay. This Court finds that here, as in Simmons, the information conveyed through Ms. Nelson's driver's license is hearsay.

The superseding instrument indicates that the Officer Travis observed the defendant at 2120 Crotona Avenue, Apt. #24. He states that he understood this address to be the home of Ms. Nelson based upon his observation of her New York State driver's license, which listed this address as her residence. A deponent's review of such records can provide a satisfactory factual basis for his conclusion that a location is the residence of a protected party, as can other governmental documentation such as DMV driver records. People v. Simmons, 62 Misc 3d 1205(A) (Crim. Ct. Kings Cty. 2018); People v. Wilson, 8 Misc 3d 535 (Crim. Ct. Bronx Cty. 2017). However, as the Simmons court noted, where a deponent relies upon such documentation, the information contained within it is hearsay unless the complaint or its supporting documents establish the foundation for a hearsay exception. 62 Misc 3d 1205(A) at *3.

The People have not filed or served any documents that would bring the information on Ms. Nelson's driver's license within a hearsay exception.^[FN2] Therefore, the complaint filed by the People, along with the copy of the underlying order of protection, are insufficient to fully convert the instrument into an information.

Because the superseding instrument filed by the People contains hearsay not covered by any exception, it does not conform to the requirements of C.P.L. § 100.50(3). This section of the Criminal Procedure Law provides that "[a] misdemeanor complaint must or may be replaced and superseded by an information pursuant to the provisions of section 170.65" (emphasis added). The Criminal Procedure Law does contain any provision allowing for the filing of a superseding instrument that is not a fully converted information. People v. Severino, 47 Misc 3d 1229(A) (Crim. Ct. NY Cty. 2015); see also People v. Simmons, 62 Misc 3d 1205(A) (Crim. Ct. Kings Cty. 2018). The instrument filed by the People on December 21, 2018 is thus a superseding complaint and therefore a nullity. People v. Severino, 47 Misc 3d 1229(A) at *3 (Crim. C. NY Cty. 2015). The defendant remains charged by the complaint filed at his initial arraignment.^[FN3]

For the foregoing reasons, this Court does not accept the superseding instrument filed by the People on December 21, 2018 and that instrument is dismissed. As such, the defendant remains charged by the complaint filed at his initial arraignment on November 7, 2018. In light of this decision, the Court need not address the defendant's remaining applications.

This opinion constitutes the decision and order of the Court.