Defendant is charged with Attempted Murder in the Second Degree for allegedly having shot Crystal Oliver, his former girlfriend and the mother of his son. The People move to remand the defendant pursuant to Criminal Procedure Law §530.13 (8) on the ground that the defendant has violated the order of protection issued by the court against him in favor of Ms. Oliver. That section allows a court "by competent proof that the defendant has wilfully failed to obey any such order" to, among other things, revoke bail and "commit the defendant to custody".

FINDINGS OF FACT

At the hearing the complainant testified that the defendant called her then boyfriend, Devon Baker, in March or April of 2008 from Riker's Island. She stated that Mr. Baker told her that the defendant asked if they were "seeing each other", inquired about his son and "he also stated that he was about to get out. He was about to post bail" and that "he expired from parole on May 15th and that he was going to be coming home...his father was going to bail him out". According to Ms. Oliver and based on her contention that the defendant tried to kill her by shooting her fourteen times, she feared for her life.

Ms. Oliver admitted that she did not know if the defendant told Mr. Baker to advise her of these facts and Mr. Baker stated that he did not, in fact, ask him to tell her. Nonetheless, he did.

Mr. Baker, of sketchy memory during his testimony, admitted that the defendant called him, surprisingly and unexpectedly, to inquire about his son. He remembered some small talk but, tellingly and incredibly, could not recall if the defendant mentioned anything about parole expiration or securing bail because, in his words: "I am also a heavy substance user...I smoke a lot of marijuana".

CONCLUSIONS OF LAW

The court finds that the People have shown, by competent proof, that the defendant wilfully violated Ms. Oliver's order of protection. Although the defendant did not directly contact Ms. Oliver, he did call her boyfriend with information that was certain to get back to her and equally certain to alarm her. Mr. Baker testified that the defendant and he were far from friends and barely acquaintances. There is no logical reason for the call other than to violate, however veiled and surreptitious, the order of protection.

While speculation and surmise cannot inform a court's fact-finding, neither should common sense and the lessons of human experience be strangers to the decision-making process.

The People's motion is granted.

This constitutes the Decision and Order of the court.

____________________________

Matthew J. D'Emic [*2]

J.S.C.