New York Criminal Contempt: Can Prosecutors File a Legal Complaint without Naming the Protected Party or Victim

I’ve been arrested for Second Degree Criminal Contempt. I don’t understand why I am being prosecuted for New York Penal Law 215.50. How can the police arrest me or the DA prosecute me without naming the victim or protected party? While I may have posed those questions as a New York criminal defense attorney and not an accused, they are quite reasonable ones to ask. After all, if the complaint against you is not legally sufficient regardless if you’re charged with NY PL 215.50 or any other crime, then ultimately your criminal defense lawyer will likely file a motion to dismiss or seek the dismissal of your criminal case on some other procedural grounds. Generally speaking, however, one of the common difficulties securing a dismissal of a Second Degree Criminal Contempt arrest and charge is that even where a victim is not compliant either a third party or other evidence can corroborate there was contact in violation of a court order. This evidence can come from a friend who observed a defendant having contact with a victim or even text messages or phone records reflecting the same. After addressing the crime of PL 215.50, the purpose of this particular blog entry is to provide an example of an insufficient criminal complaint where conclusions by the NYPD did not satisfy the burden that prosecutors are required to reach.

A class “A” misdemeanor regardless of whether the accusations involve a domestic violence arrest or one that is not familial in nature, a conviction for PL 215.50 carries a sentence of one year in jail. If you are ultimately sentenced to a week, month or year in jail, Rikers Island will be your home during that time if your arrest stemmed from a New York City incident in Manhattan, Brooklyn, Queens or the Bronx. Similarly, if your arrest and prosecution was in White Plains or Yonkers in Westchester, New City in Rockland or Poughkeepsie in Dutchess, then you would serve time in that respective county’s lock up. Remember, while it may not always be the case since any contact can violate a full stay away order involving an order of protection (sometimes called a restraining order), arrests for Second Degree Criminal Contempt are often accompanies by other charges including Third Degree Assault, Second Degree Aggravated Harassment and other crimes.

Now that I have set for the basics, let’s actual take a quick look at the crime of Second Degree Contempt. According to the New York Penal Law, you are guilty of NY PL 215.50(3) if you intentionally disobey a lawful mandate of a court. As such, for the People, aka, the prosecution and District Attorney, to prove beyond a reasonable doubt at trial or sustain the charge at the pleading stage they must establish that the complainant in a Second Degree Criminal Contempt complaint is actually the protected party identified in the order of protection. Well, that seems fairly basic, right?

In People v. Pandiello, 2016 NY Slip Op 26358 (NYC Crim. Ct. 2016), the NYPD and District Attorney attempted to establish that the person named in the complaint with whom the police observed the defendant with was the protected party in an order of protection and therefore the defendant violated PL 215.50. In doing so, the detective merely stated that “J.M.” was a protected party, the defendant was observed yelling at “J.M.” and there were three orders of protection. At no time did the detective state how he knew “J.M.” was the person named in the order of protection / restraining order. Very likely, and easily as well, the prosecution could have filed a copy of the order of protection along with the officer’s statement and set forth the name of the complainant and matching it to the certified copy of that order. Moreover, the officer could have further detailed how he knew who “J.M.” was and as opposed to just some random person claimed to be “J.M.”

The take away from Pandiello is as follows. It is one thing for the police to make an arrest, but after they have run through their probable cause there needs to be something more for legal sufficiency and a conclusion without a basis will not suffice.

To educate yourself about New York Domestic Violence Laws and the crime of Criminal Contempt and its various degrees and definitions, information is available throughout the NewYorkCriminalLawyerBlog.Com as well as the links above and websites below.

Saland Law PC is a New York criminal defense firm founded by two former Manhattan prosecutors who both served in the Domestic Violence Unit.

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