People v. D'Angelo

• Decision Date: 07 June 2001
• Citation: 728 N.Y.S.2d 132
• Parties: (A.D. 1 Dept. 2001) The People of the State of New York, Respondent, v. Philip D'Angelo, Defendant-Appellant. 4405 : FIRST DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 132

728 N.Y.S.2d 132 (A.D. 1 Dept. 2001)

The People of the State of New York, Respondent, v. Philip D'Angelo, Defendant-Appellant.

4405

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST DEPARTMENT

June 7, 2001

Michael S. Morgan - for respondent,

Luke Martland - for defendant-appellant.

Tom, J.P., Andrias, Ellerin, Wallach, Friedman, JJ.

Judgment, Supreme Court, New York County (Michael Obus, J.), rendered September 11, 2000, convicting defendant, after a jury trial, of criminal contempt in the first degree and four counts of criminal contempt in the second degree, and sentencing him, as a second felony offender, to a term of 2 to 4 years and to four terms of 1 year, all to run concurrently, unanimously affirmed.

The verdict was based upon legally sufficient evidence and was not against the weight of the evidence. The People clearly established that defendant had knowledge of the order of protection at issue and its contents (see, People v Clark, 95 N.Y.2d 773). Defendant's presence in court, his initials acknowledging receipt of the order, and the Court Clerk's testimony, when taken together, warranted the conclusion that defendant personally received the order.

The indictment was jurisdictionally valid since it contained allegations of fact supporting every element of the offense. Penal Law § 215.50 (3) prohibits "[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. The reference to labor disputes does not constitute an exception to the statute which must be pleaded in the indictment and proved by the People, but rather constitutes a proviso, a matter for a defendant to raise as a defense (see, People v Devinny, 227 N.Y. 397, 401; contra, People v Kirkham, 273 A.D.2d 509 [3d Dept]). Unlike a true exception (see, e.g., People v Rodriguez, 68 N.Y.2d 674 [home or place of business exception in weapons possession]), the reference to labor disputes incorporates a lengthy definition of such disputes that is found outside the statute (see, People v Kohut, 30 N.Y.2d 183, 187). Thus, "the requirements of common sense and reasonable pleading" (People v Devinny, 227 N.Y. 397, 401, supra) warrant the treatment as a proviso of the reference to labor disputes (see also, McKinney's Cons Laws of N.Y., Book 1, Statues, § 211; People v Taylor, 256 A.D.2d...