People v. Gurnett
| Decision Date | 13 April 2018 |
| Docket Number | 17110098,17110039 |
| Citation | 75 N.Y.S.3d 811,59 Misc.3d 975 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Chad GURNETT, Defendant. |
| Court | New York County Court |
Tim Donaher, Public Defender (Brandon Hellwig of counsel), for defendant in the first and second above-entitled actions.
Sandra J. Doorley, District Attorney (Timothy Boucher of counsel), for plaintiff in the first and second above-entitled actions.
History of the Case.
The defendant was charged with criminal contempt in the second degree, in violation of Penal Law § 215.50 (3) on two occasions to wit: November 5, 2018 and November 14, 2017, wherein it was alleged that he violated this court's order of protection. In a prior case, which is still pending before this court, the defendant was charged with menacing in the second degree and harassment in the second degree, alleged to have occurred on November 5, 2017 at about 11:12 A.M.. Defense counsel filed separate omnibus motions in each of these cases. In the cases alleging criminal contempt in the second degree, the motions allege that the informations are insufficient on their face.
It is undisputed that the court arraigned the defendant at an "off-hours" arraignment on November 5, 2017 at 1:25 P.M. on said charges of menacing second degree, P.L. § 120.14 (1) and harassment, second degree, P.L. § 240.26 (1). The defendant was represented at that off-hours arraignment by an attorney from the public defenders's office. The court issued the order of protection in question at that arraignment, pursuant to C.P.L. 530.12 (1). The defendant signed that order of protection indicating his receipt of same in the presence of his attorney. At that time the court indicated to the defendant what was prescribed by said order. Copies of said order were provided to both the defendant and his attorney. Finally the defendant was then released on his own recognizance. It is noted that the initial offense of criminal contempt in the second degree was alleged to have occurred later on the same day at about 5:25 P.M. The defendant was given an appearance ticket in that case which directed him to appear in court on November 15, 2017.
Legal Analysis .
The standard for sufficiency of a misdemeanor information is a higher one than that of a felony complaint. The reason for same is that a misdemeanor information can form the basis of prosecution of the defendant. In the case of a felony complaint, the offense in question must be presented for review by a county grand jury.1 A felony complaint can commence a legal action, but cannot be the basis of a prosecution.2
In any event, in most every criminal case, the misdemeanor information, which can be comprised of a complaint and a supporting deposition, is scrutinized by defense counsel to determine if the sufficiency requirements of the law have been met. The sufficiency of such an accusatory instrument is governed by Criminal Procedure Law § 140.40 (1) and by various case law. A failure of the arresting police agency to carefully prepare misdemeanor informations in accordance with both statutory and case law, will result in many of its accusatory instruments being dismissed as being insufficient on their face.
Criminal Procedure Law § 100.40 (1) states as follows:
Many rulings declaring an information to be insufficient on its face are based on an alleged failure to comply with C.P.L. § 100.40 (1) (c) due to a lack of "non-hearsay" allegations in the complaint and/or the supporting deposition. In addition, many rulings dismissing an information are because the accusatory instrument fails to set out "each element of the offense charged", as defined by both statutory and case law. Penal Law Section 215.50 (3) states in pertinent part as follows: "A person is guilty of criminal contempt in the second degree when he engages in any of the following conduct: Intentional disobedience or resistance to the lawful process or other mandate of a court ...." In both cases before the court, the informations allege that the defendant violated a particular order of protection and the circumstances of that violation. However, case law has been more specific as to what constitutes "every element of the offense" of criminal contempt in the second degree, for purposes of sufficiency.
Case # 17110039/CR#: 17–024798
In fact the defendant was directed to stay away from "the home of [the protected party]". If the Klem Road property was no longer the home of the protected party, the provision requiring a police escort to that address should, in the opinion of this court, be moot.3 The order of protection was designed to protect the complainant not the property. However the supporting deposition of the complainant places the defendant in the presence of the protected person in presumptive violation of the said stay away order of protection. The supporting deposition of the complainant states as follows:
Certainly the deposition of the complainant supplies the required non-hearsay allegations. The combination of the complaint and supporting deposition combine to form a misdemeanor information. This still begs the question as to whether that information is legally sufficient on its face in terms of setting out all the elements of the offense charged.
As previously stated, in addition to the statutory requirements for a sufficient information, there are the requirements established by the controlling case law. Cases decided by the Fourth Department of the Appellate Division are controlling on this court. In People v. Ferenchak , 82 A.D.3d 1692, 919 N.Y.S.2d 436 (4th Dept. 2011) the court reversed the conviction of criminal contempt in the second degree, (P.L. § 215.50 [3] ) entered after a non-jury trial in an Onondaga County Court. The court held as follows:
"Here, the factual portion of the misdemeanor information alleges that defendant violated an order of protection issued on a particular date and recites the circumstances underlying that violation, but it does not allege that defendant was served with the order of protection, that he was present in court when it was issued or that he signed the order of protection...."4
In this case reading the information comprised of both the complaint signed by Officer Kirkpatrick, who was not present at that time of the alleged offense, and the supporting deposition signed by the complainant, one must observe that there is no mention of defendant herein being in court at the time the order of protection was issued, that he was served with the order or that he signed the order. On that level the information herein would be insufficient on its face.
The defendant was subsequently charged with having committed a second offense of criminal contempt in the second degree, P.L. § 215.50 (3) on November 14, 2017. The complaint read as follows:
The complaint was again accompanied by a supporting deposition of the protected party. Said supporting deposition which stated:
"My brother Chad A. Gurnett and I have a stay away order of protection against each other where I am the Petitioner and Chad is the Respondent. Tonight Chad showed up to my residence of .... Klem Road when he knew he was not supposed to be here.5
In addition, another supporting deposition was provided by the defendant's mother which stated:
The defendant was arraigned at the court's regular disposition calender on November 15, 2017. Again the defendant was represented by the public defender. He was released on his own recognizance.
Once more reference must be made to People v. Ferenchak , 82 A.D.3d 1692, 919 N.Y.S.2d 436 [4th Dept. 2011]. In the instant case the complaint indicates that an order of protection was issued by the court. The complaint and supporting depositions set out the underlying violation. However, nowhere do the accusatory instruments set out that the defendant was served with the order of protection or that the defendant was present in court when the order of...
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People v. Stewart
...510 (County Court Fulton County 1971) ; People v. Suarez , 51 Misc. 3d 620, 624 [Crim. Ct., City of New York, 2016] ; People v. Gurnett , 59 Misc. 3d 975, 75 N.Y.S.3d 811 [Just. Ct., Town of Webster, 2018] (denying the defendant's motion to dismiss for facial insufficiency on the grounds th......