Is Proper Service Necessary in Order to Find a Later Violation of a Restraining Order: Understanding NY Second Degree Criminal Contempt

One of the more straightforward arrests and prosecutions handled by Assistant District Attorneys in New York City as well as some of the neighboring counties is Criminal Contempt in the Second Degree. Second Degree Criminal Contempt, pursuant to New York Penal Law 215.50(3), basically occurs or is committed when you violate the language of an order of protection or what is also referred to as a restraining order. For example, if a judge of the Criminal Court, Supreme Court, County Court (outside New York City) or Family Court issues an order of protection in favor of either a complainant or a petitioner, you (as a defendant or respondent) must abide by the language of that order. If that order of protection states on its face that there can be no contact what-so-ever and you call or stop by the other party’s apartment to say “hello” or apologize for past misconduct, you will violate the order. To be very clear, any contact beyond what is permitted, whether it be for kindness or crime, will be the basis for violating an order of protection.

Now that you have a general (yet non legal) idea as to what constitutes Criminal Contempt in the Second Degree, NY PL 215.50, the remaining substance of this blog entry will address People v. Jakubowski, 2013KN044821, NYLJ 1202627740970 (Crim., KI, Decided November, 12, 2013) where the issue was not necessarily what caused the violation of the order of protection, but what constituted a defendant’s knowledge of its existence in order to determine whether a violation occurred. In that case, the defendant was personally served with an order of protection by the victim/complainant in February. In June, the defendant “made eye contact with [the complainant], [gestured] with the [his] finger across [his] neck in a throat-slashing manner, and [took] photographs of [complainant]” – which was in violation of the order of protection. Subsequently, the police arrested the defendant and he was charged with Criminal Contempt in the 2nd Degree (Penal Law 215.50(3)) and Harassment in the 2nd Degree (Penal Law 240.26(1)). In response, the defendant made a motion to dismiss these charges.

The defendant argued in his motion that the order of protection was improperly served upon him because complainant personally served him. This, according to the defendant, made the order ineffective, and thus, he did not have knowledge of the order. The court disagreed. It noted that in New York State criminal court, as well as in New York family court, “[i]t is well settled that criminal contempt is established when there is a clear and definite order of the court, the [defendant] knows of the order, and [defendant] willfully disobeys [that order].” Holtzman v. Beatty, 97 A.D.2d 79 (2nd Dep’t 1983). Knowledge of the order, according to the court, does not hinge upon the service of the order of protection – whether proper or improper. Rather, the court wrote, in summation of this element, that “[w]hen a defendant knows the contents of a court order and intentionally disobeys it, the statute, which vindicates the authority of the court, is violated, even if the manner of service of the court order was not specifically permitted by the statute.”

Although this blog entry’s main purpose is to address an interesting issue in New York Criminal Contempt arrests and cases, the court also addressed the defendant’s motion to dismiss the charge of Harassment in the Second Degree. Examining the Second Degree Harassment charge, the defendant argued that the throat-slashing gesture did not amount to a threat of harm under New York Penal Law 240.26(1). However, the complainant, according to the charges, felt a fear of imminent and physical harm when defendant made this gesture. The court, in agreement with the complainant, found that the defendant did indeed threaten to harm complainant with that gesture and satisfied the elements of NY PL 240.26. Relying on In the Matter of Czop v. Czop, 21 A.D.3d 958 (2nd Dep’t 2005), the court acknowledge that “evidence of a genuine threat of physical harm backed by the ability to carry it out is sufficient to prove harassment in the second degree.”

The value of this decision is not so much how you can use this case in your defense to either Second Degree Criminal Contempt or Second Degree Harassment, but it provides a fairly clear understanding of the minimum thresholds to violate these statutes. It shouldn’t take a criminal attorney post arrest to tell you it is better to understand and recognize these almost “strict liability” standards before your arrest then to deal with the consequences later.

Crotty Saland PC is a New York law firm dedicated to the practice of criminal law. Both founding New York criminal lawyers at Crotty Saland PC worked under Robert Morgenthau in the Manhattan District Attorney’s Office and served in the Domestic Violence Unity before starting the law firm.

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