People v. Perez

• Decision Date: 13 November 2001
• Parties: THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,<BR>v.<BR>EVELYN PEREZ, Defendant.
• Court: New York District Court

189 Misc.2d 516

734 N.Y.S.2d 398

THE PEOPLE OF THE STATE OF NEW YORK, Plaintiff,

v.EVELYN PEREZ, Defendant.

November 13, 2001.

Irving Singer, Hempstead, for defendant.

Denis E. Dillon, District Attorney of Nassau County, Mineola, for plaintiff.

OPINION OF THE COURT

JOSEPH C. CALABRESE, J.

This decision holds for the first time that a New York State court has jurisdiction over an alleged violation of an order of protection where such protective order was issued by a court of this state and served on a defendant in a foreign state by means of a facsimile (fax) copy of that order.

Defendant, Evelyn Perez, is charged with criminal contempt in the first degree (E felony) under Penal Law § 215.51 (b) (ii) and stalking in the third degree (A misdemeanor) under Penal Law § 120.50 (3). These crimes are alleged to have occurred on or about February 18, 2001 in Nassau County, State of New York.

Pursuant to a stipulation in lieu of motions entered into by the parties on May 16, 2001 and "Approved and So Ordered" by this court on that date, the Grand Jury minutes underlying the instant indictment were reviewed by this court.

Those minutes indicate that complainant herein is the girlfriend of defendant's ex-boyfriend.

On February 6, 2001, the District Court of Suffolk County, State of New York, issued an order of protection against defendant and in favor of complainant. Defendant was not present in court on the date of issuance and was apparently not otherwise served with a copy of that order in the State of New York.

On February 9, 2001, complainant and her boyfriend went skiing in the Town of Brandon, State of Vermont. On February 10, complainant contacted and then met with Brandon Police Department Corporal James Bixby concerning defendant whom she had seen in Brandon. After speaking with complainant, Corporal Bixby stopped defendant's car and gave her a fax copy of the Suffolk County District Court's order of protection. Defendant signed a receipt for the order of protection and acknowledged receiving such in her testimony before the Grand Jury.

The Grand Jury testimony further indicates that on Sunday, February 18, 2001, at approximately 11:40 A.M. complainant left home in Port Jefferson Station, Suffolk County, New York, to travel to Hicksville, Nassau County, New York, to meet a friend for lunch. Shortly after departing and while at the intersection of Route 347 and Nichols Road in Port Jefferson, complainant observed a mud-covered Suzuki Samurai behind her car. Complainant drove approximately four or five miles south on Nichols Road and then got onto the Long Island Expressway (LIE) in a westerly direction. While entering the LIE, complainant again saw the same muddy Suzuki following her at the distance of one car's length, at which time she recognized defendant as the Suzuki's driver. Complainant continued traveling westbound on the LIE, switching traffic lanes several times, with defendant aping each lane change.

When complainant reached Hicksville, Nassau County, she exited onto Route 107 in a southerly direction with defendant continuing to follow her at a distance of approximately one car length. Complainant then stopped at a gas station on Route 107 and defendant passed by continuing south.

Defendant then turned around and now driving in a northerly direction on Route 107 repassed complainant who was parked in the gas station. Shortly thereafter, the defendant again drove by the gas station for a third time. Each time the complainant was close enough to see and identify the defendant as the driver.

Complainant testified that these events made her fear for her safety.

In a memorandum decision and order dated June 5, 2001, this court released a copy of the Grand Jury minutes, including the legal instructions, to defense counsel and directed that both he and the District Attorney submit memoranda of law as to whether the service of the order of protection upon defendant in the State of Vermont was sufficient to confer jurisdiction on the Nassau County Court.

Criminal contempt in the first degree includes as an element that the contemptuous conduct was "in violation of a duly served order of protection, or such order of which the defendant has actual knowledge because he or she was present in court when such order was issued" (Penal Law § 215.51 [b] [emphasis added]).

It is essentially undisputed that the defendant was given a fax copy of the Suffolk County order of protection by Corporal Bixby in Brandon, Vermont, on February 10th; that she acknowledged receipt of that court order by signing a copy and that she had actual notice of the order as of that date (People v Clark, 95 NY2d 773). The issue is, therefore, whether said service satisfies the "duly served" requirement sufficient to confer jurisdiction on this court for a violation occurring in Nassau County, New York, after that date.

Jurisdiction is established in a court following the filing of a sufficient accusatory instrument (People v Casey, 95 NY2d 354). Here, it is undisputed that the Suffolk County District Court had jurisdiction to issue the order of protection in issue. Once "duly served" an individual violating that order may be prosecuted for criminal contempt, with jurisdiction vesting within any of the 62 counties of this state, based upon the geographic location in which such violation is committed (People v Halper, 209 AD2d 637; see, CPL 530.13; People v Hayden, 128 AD2d 726).

New York State has long recognized orders of protection issued by other jurisdictions (Penal Law § 215.51 [b]; CPL 530.11 [5]). In People v Hadley (172 Misc 2d 697), the court held that a person who engaged in conduct in New York which violated an order of protection issued by a New Jersey court may be prosecuted in New York for criminal contempt if sufficient notice and service of process was provided to the violator.

Additionally, pursuant to 18 USC §§ 2265 and 2266, orders of protection must be honored and enforced by state courts.

Defendant argues that fax service outside of New York State does not satisfy the "duly served" mandate of Penal Law § 215.51 (b) requisite to the Nassau County Court's obtaining jurisdiction over a person violating such protective order. The court disagrees.

Since the Criminal Procedure Law does not set forth any specific procedure for serving an order of protection outside of New York State, the general service provisions of the Civil Practice Law and Rules control (People v Duquette, 152 Misc 2d 239; People v Fulton, 162 Misc 2d 360; People v Wienclaw, 183 Misc...