People v. Panetta
| Decision Date | 30 August 2013 |
| Citation | 2013 N.Y. Slip Op. 23297,972 N.Y.S.2d 446,41 Misc.3d 614 |
| Parties | The PEOPLE of the State of New York, Plaintiff, v. Sylvia PANETTA, Defendant. |
| Court | New York City Court |
OPINION TEXT STARTS HERE
Andrew Kass, Esq., Orange County District Attorney's Office, Dennis McCormick, Esq., Attorney for the Defendant.
The defendant moved pursuant to CPL §§ 170.30 and 170.35 for an order dismissing an accusatory instrument charging criminal contempt in the second degree (PL § 215.50[3] ). The criminal contempt charge was based an alleged violation of an order of protection issued by the Town of Wallkill Court. The defendant asserted that the order of protection, issued pursuant to CPL § 530.13, was invalid requiring dismissal of the criminal contempt charge. The People opposed the defendant's motion. In an oral decision, this Court granted the defendant's motion to dismiss. This decision and order sets forth my reasoning.
The events leading up to the filing of the criminal contempt charge began on March 6, 2012, when the Town of Wallkill police received a telephone call from an employee of an agency assisting senior citizens. The employee voiced concerns regarding the welfare of the defendant and a large number of dogs then living on her property. The police investigated and found that the defendant lived at the premises with approximately 70 dogs. Later that day a town justice issued a search warrant targeting the defendant's home and surrounding property. The warrant was executed by police officers who seized evidence, including two dogs. The defendant was also served with a notice to comply that informed her of numerous potential violations of Agriculture and Markets Law (A & ML) provisions dealing with the care and shelter of her dogs. The notice gave the defendant one week to address the animals' living conditions. The town police inspected the defendant's property on March 16 and April 13 of 2012 and claim that she failed to adequately correct the issues raised in the notice to comply.
On April 29, 2012, a town justice issued a search warrant and seizure and impoundment order. The warrant permitted the town police to seize evidence and seize or impound certain dogs. The warrant also permitted county sheriffs, the town veterinarian and building inspector, members of the local humane society and an animal rescue group, employees of the county adult protective services agency and members of the local volunteer ambulance corp to assist in the execution of the warrant and seizure order. The order further permitted members of the animal rescuegroup—“the Mountain Rotty Rescue organization and their agents”—to enter the defendant's property and home during designated hours over the next 30 days to assist with the medical treatment, feeding and care of the remaining dogs. The warrant was executed the following day and the police seized evidence, including 21 dogs. Fifty-two dogs remained on the property.
During the execution of the warrant on April 30, the defendant was arrested and charged with two counts of animal cruelty (A & ML § 353) relating to the dogs seized on March 6. The defendant was arraigned, released in her own recognizance and directed to return to court on May 29.
Over the next three weeks, a town justice issued five additional orders directing the seizure of various dogs, placing limits on the defendant's interaction with the remaining dogs, and continuing the authorization to the Mountain Rotty Rescue organization to enter defendant's property and home to care for the animals. The final order, issued May 16, 2012, directed the seizure of all dogs remaining on the defendant's property within thirty days and extended the care authorization to Mountain Rotty Rescue until the seizure was completed. Over the next ten days, 36 dogs were seized pursuant to the court order, leaving 13 dogs on the defendant's property.
On May 29, 2012, the defendant appeared in town court on the two animal cruelty counts. At that time, the District Attorney's Office filed a 150–count superceding information charging the defendant with eleven misdemeanors under A & ML § 353 and multiple violations under A & ML § 353–b and the town code. The defendant was arraigned and, pursuant to CPL § 530.13, a temporary order of protection was issued against the defendant and in favor of members of the various animal rescue groups that were caring for the remaining dogs pursuant to the town court orders. The next day, the defendant allegedly violated the order of protection and she was charged with criminal contempt in the second degree [PL § 215.50(3) ].
Both the criminal contempt charge and the superceding information were transferred to Middletown City Court following the recusal of the Town of Wallkill justices. The defendant subsequently moved to dismiss the criminal contempt charge.
The temporary order of protection, issued on May 29, 2012 pursuant to CPL § 530.13, directed the defendant to refrain from committing a variety of threatening, offensive or illegal acts toward and to stay at least fifty feet away from the protected parties. The protected parties were identified as “Members of the Mountain Rotty Rescue Group, their agents, or members of other Humane Societies or like agencies who are presently assisting members of the Mountain Rotty Rescue participating in and assisting with the maintenance and care of dogs which are located on (the defendant's) property.”
The misdemeanor information charging criminal contempt alleged that on May 30, 2012, the defendant violated the lawful mandate of the court, as contained in the order of protection, by coming within five feet of two workers caring for the defendant's dogs and yelling at the workers.
The defendant moved to dismiss, arguing that the information along with the accompanying supporting depositions and the order of protection failed to set forth a prima facie case as required by CPL § 100.40(c). This statute requires that the information, along with the accompanying supporting depositions and the accompanyingorder of protection, allege facts establishing, if true, every element of the offense charged. People v. Alejandro, 70 N.Y.2d 133, 517 N.Y.S.2d 927, 511 N.E.2d 71 (1987). In essence, the defendant argued that the order of protection issued in favor of members of the Mountain Rotty Rescue group exceeded the scope permitted by CPL § 530.13(1) and that the People therefore failed to alleged facts establishing that the defendant violated a lawful mandate of the court as required by the criminal contempt statute. The People argued that the designation of the Mountain Rotty Rescue group as the protected party was proper.
Section 530.13(1) of the CPL permits a criminal court to issue a temporary order of protection as a condition of the defendant's pretrial release on recognizance or bail. The statute provides, in relevant part, that:
In addition to any other conditions, such an order may require that the defendant:
(a) stay away from the home, school, business or place of employment of the victims of, or designated witnesses to, the alleged offense;
(b) refrain from harassing, intimidating, threatening or otherwise interfering with the victims of the alleged offense and such members of the family or household of such victims or designated witnesses as shall be specifically named by the court in such order;
No reported cases address the validity of a temporary order of protection issued in favor of a party who was not a victim, designated witness or the member of a family or household of a victim or designated witness.
Decisions concerning final orders of protection issued pursuant to CPL § 530.13(4) offer guidance. Upon conviction of an offense, § 530.13(4) permits a criminal court to issue a final order of protection to the victims and their families or households and to designated witnesses. The language used in § 530.13(4)(a) and (b) is virtually identical to the language quoted above.1
A series of appellate-level cases has vacated final orders of protection issued in favor of parties not designated in § 530.13(4). In People v. Raduns, 70 A.D.3d 1355, 896 N.Y.S.2d 541 (4th Dept., 2010), the Appellate Division held that the trial court had no authority to issue an order of protection in favor of parties who were neither victims nor witnesses to the crime underlying the conviction. The Appellate Division has further held that the term “witnesses,” as used in the statute, is limited to only those people who actually witnessed the offense in question, and does not include all witnesses who testified at the defendant's trial. People v....
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