Argued June 8, 2006; decided June 29, 2006

People v Santana, 8 Misc 3d 137(A), affirmed.

Graffeo, J.

Defendant repeatedly punched his roommate in the head during an altercation in October 2001. As a result, defendant was charged with assault in the third degree (see Penal Law § 120.00 [1]) and a temporary order of protection was issued. After defendant violated that order by harassing his roommate, he was served with another order of protection that prohibited him from residing in the roommate's apartment. Upon his violation of the second order, defendant was charged with criminal contempt in the second degree (see Penal Law § 215.50 [3]). That crime is committed when a person engages in "[i]ntentional disobedience or resistance to the lawful process or other mandate of a court except in cases involving or growing out of labor disputes as defined by subdivision two of section seven hundred fifty-three-a of the judiciary law" (id.). The accusatory instrument, a prosecutor's information, alleged that defendant "intentionally disobeyed and resisted the lawful process and other mandate of a court, to wit, an order of protection" by continuing to live in the apartment. A jury determined that defendant was guilty of criminal contempt in the second degree and assault in the third degree.

Defendant argues that the charge of criminal contempt in the prosecutor's information was jurisdictionally defective because it failed to state that the crime did not arise out of a labor dispute. The Appellate Term rejected this argument and affirmed, as do we.

We are unpersuaded by defendant's assertion that the inclusion of the reference to "labor disputes" in the second-degree criminal contempt statute (Penal Law § 215.50 [3]) creates an exception that must be affirmatively pleaded as an element in the accusatory instrument, rather than a proviso that need not be pleaded but may be raised by the accused as a bar to prosecution or a defense at trial. We have explained that:

"[e]ssential allegations are generally determined by the statute defining the crime. If the defining statute contains an exception, the [accusatory instrument]{**7 NY3d at 237} must allege that the crime is not within the exception. But when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense" (People v Kohut, 30 NY2d 183, 187 [1972]).

Legislative intent to create an exception has generally been found when the language of exclusion is contained entirely within a Penal Law provision. For example, the "home or place of business" exception found in Penal Law § 265.02 (4), defining criminal possession of a weapon in the third degree, does not require reference to another statute to determine its applicability (see People v Rodriguez, 68 NY2d 674, 675 [1986], revg on dissenting op of Lazer, J., 113 AD2d 337, 343-348 [2d Dept 1985]).

That is not the case in Penal Law § 215.50 (3). The exclusionary language in the second-degree criminal contempt provision does not provide a complete definition of the class of cases that the Legislature intended to remove from the ambit of criminal contempt because the [*2]statute refers to a definition of "labor disputes" set forth outside the Penal Law. The contempt statute cites section 753-a of the Judiciary Law, which delineates the multiple circumstances that constitute "labor disputes" and the various parties who can engage in such disagreements (see Judiciary Law § 753-a [2]). As a matter of "common sense and reasonable pleading" (People v Devinny, 227 NY 397, 401 [1919]), we do not believe that the Legislature intended to require the People to negate each of the alternatives specified in Judiciary Law § 753-a in every criminal contempt accusatory instrument premised on Penal Law § 215.50 (3) (see People v Romano, 188 Misc 2d 368, 370-374 [Crim Ct, Queens County 2001] [discussing the legislative history and purpose of the labor disputes exclusionary language in Penal Law § 215.50 (3)]).

We therefore conclude that the "labor disputes" clause operates as a proviso that the accused may raise in defense of the charge rather than an exception that must be pleaded by the People in the accusatory instrument. Thus, the prosecutor's information in this case was jurisdictionally valid even though it failed to allege that the charge of criminal contempt did not arise out of a labor dispute. If an accused timely raises the issue, the People must, of course, establish beyond a reasonable doubt that the labor disputes proviso does not apply (see Penal Law § 25.00 [1]).{**7 NY3d at 238}

Defendant's remaining challenge to the sufficiency of the evidence supporting the conviction of assault in the third degree is without merit.

Accordingly, the order of the Appellate Term should be affirmed.

Chief Judge Kaye and Judges G.B. Smith, Ciparick, Rosenblatt, Read and R.S. Smith concur.

Order affirmed.