NY Criminal Contempt: Can You Violate an Order of Protection Even if You Do Not Enter the Protected Premises Specified in the Restraining Order

New York Penal Law 215.50, Second Degree Criminal Contempt, is a crime that prosecutors are quick to charge and often for good cause. However, regardless of the subjective view of an Assistant District Attorney or a police officer with the NYPD or any police department outside New York City, cases must still be proven beyond a reasonable doubt whether you’re in Westchester, Rockland or Gotham. At earlier stages of litigation, the accusatory information – the complaint – must be legally sufficient or your case should not “pass go.” Therefore, mere allegations must be supported by some form of evidence or alleged facts. Tying this back to Second Degree Contempt, an “A” misdemeanor punishable by as much as one year in the county jail (can you say “Rikers Island?!”), the four corners of the accusatory instrument must legally support that there was a valid order of protection, the parameters of that order and how you violated the order. In a recent case out of White Plains, New York, the a court rendered a decision giving a broad interpretation of an order of protection and a defendant’s conduct that is worth reviewing and directly on point with the title of this blog entry.

In People v. Turner, 15-6124M, NYLJ 1202733599098, at *1 (Sup., WE, Decided July 15, 2015), prosecutors charged the defendant with Second Degree Criminal Contempt pursuant to New York Penal Law 215.50(3). The complaint alleged that in spite of a full stay away order preventing the defendant from going to the complainant’s home, the defendant went to the detached garage near the complainant’s house to get his tools. The defendant, in arguing the accusatory instrument was not legally sufficient, asserted that the garage was not part of the home and in an adjacent parking lot, the order of protection did not stipulate the garage or parking lot and only required the defendant to stay away from the home, and there was no minimum distance contained in the restraining order that the defendant needed to be from the home at all times. As such, contended the defendant, the complaint was not legally sufficient and did not provide him proper notice of what he could not do or where he could not go.

Before continuing, I want to remind those who may not know, when a motion to dismiss is filed the judge is not determining whether or not proof beyond a reasonable doubt exists or whether the allegations are factually accurate. The standard at this phase in the process is significantly lower. It could very well be that a judge or jury at trial – when facts are determined – could find that the District Attorney’s Office failed to prove their case beyond a reasonable doubt. Here, the judge was merely ruling on legal sufficiency to proceed to this next level of criminal litigation. Now, let us continue…

Despite the defendant’s arguments, the Court denied his motion to dismiss.

“The defendant next contends that the garage is not specifically identified in the order of protection as part of the victim’s home, so he cannot be charged with violating the order of protection for being in the garage. This Court finds that to be an overly technical reading of the accusatory instrument. Courts have upheld the sufficiency of informations based upon violation of an order of protection where the defendant has entered areas in close enough proximity to constitute a part of the protected parties’ home (see e.g., People v. McDonald, 287 AD2d 655 (2d Dept 2001) [defendant was seen on videotape in the vestibule of the victim’s apartment building]; People v. Durst, 42 Misc3d 1201(A) (Crim. Ct, NY Co. 2013) [defendant walked up the exterior stairs of the building]).”

“Similarly, the defendant may be properly charged with criminal contempt for being in close enough proximity to the protected party so as to be considered in her presence (see Hijri v. Fargaly, 49 AD3d 737, 738 (2d Dept 2008) abrogated on other grounds by Rubackin v. Rubackin, 62 AD3d 11 (2d Dept 2009) [husband violated the ‘stay away’ provision of the order of protection by following his wife on the Taconic State Parkway, pulling alongside her vehicle, sounding the horn and waving, and then pulling in front of her vehicle and speeding away]; People v. Nawaz 183 Misc2d 195 (Crim. Ct, Kings Co. 1999) [defendant drove past the complainant on his motorcycle, made a u-turn and parked across from her, staring at her — information charging criminal contempt in the second degree upheld]).”

So what are the takeaways from this decision? First, one should always err on the side of caution in Criminal Contempt and order of protection crimes. Generally, these offenses are strict liability. Even if the protected party invites you over and a full stay away order is in effect, should you visit you WILL violate the terms of the restraining order because the order comes from the court and not the complainant. Second, remember that the legal sufficiency standard is much less than the beyond a reasonable doubt standard. While you may be victorious at trial, it does not mean that you can not be run through the ringer whether the evidence is scant or overwhelming. Be prepared. Be educated. Be ready to defend yourself.

To learn more about Criminal Contempt in the Second Degree, New York Domestic Violence crimes and New York State Orders of Protection, follow the links found here or below on the Saland Law PC’s websites.

Founded by two former Manhattan prosecutors who served in the District Attorney’s Domestic Violence Unit, the New York criminal defense attorneys at Saland Law PC represent clients throughout the metropolitan New York City area.

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