Orders of Protection are issued in the criminal courts of every county throughout the State of New York every day, from Brooklyn to Westchester, Manhattan to Rockland. They are issued primarily by Family Courts in the context of Family Offense Petitions and Criminal Court or County/Supreme Court in the context of criminal cases. Orders of Protection are often misunderstood or not fully understood, not only by those they are meant to restrict and protect, but by law enforcement officers, child protective services, probation officers, and other people in the field. Add to this to the unfortunate reality that Restraining Orders are sometimes misused by those they are mean to protect. Even if not anywhere near the majority of cases, claimed victims sometimes proactively use these Stay Away Orders to illegitimately get the restricted party arrested or otherwise benefit themselves beyond the intent of the issuance.
With the above in mind, this blog entry briefly addresses the bare bones pleading requirement for misdemeanor Criminal Contempt in the Second Degree, New York Penal Law 215.50.
New York, unlike some other states and jurisdictions, does not put any kind of distance restriction on a person, such as “1000 feet.” Instead, these orders are decidedly and deliberately broad and somewhat vague, leaving it to police, prosecutors and judges to decide the intent behind the person who has supposedly violated the same. This has the positive effect on paper of only charging those people who are deliberately violating the order with Criminal Contempt, rather than someone who happens to walk past the protected party accidentally. However, it also leaves much more open to interpretation where the person’s intent to violate the order is concerned. This vagueness can be taken advantage of and misused by both the protected party and the restricted party in various circumstances. For example, a clever violator might keep their actions just distant and plausible enough to avoid an arrest, while still stalking or harassing a victim. Similarly, a would-be complainant can point to otherwise innocent behavior, such as the defendant going into a coffee shop where the protected person happens to be, and take advantage of the situation by calling the police and trusting that they will make an arrest rather than think critically about the technicalities of the law.
In the recent Brooklyn Criminal Court case of People v. Baum, CK-017903-19KN, the judge was faced with analyzing exactly this issue of vagueness and intent inherent in the design of the Penal Law 215.50 Criminal Contempt statute. In Baum, the defendant allegedly stopped his car in front of the victim’s home on two occasions while there was a Restraining Order in place that, among other things, required the defendant to stay away from the victim’s home. There were no further details in the allegations presented to the Court, such as statements that the defendant didn’t live on that same street or didn’t have some other legitimate reason for being there. It simply alleged that the accused parked on the street outside the complainant’s home on two occasions, nothing more. Bound by the four corners of the accusatory instrument, the question, even if not the answer, was a simple one. For the purposes of a facially sufficient complaint, were these nominal pleadings enough to get the case off the ground? The Court’s answer was “yes.”
Despite this threshold determination, the Court did point out that there may very well have been some innocent explanation or legitimate reason for the defendant’s presence at that location. But the key distinction, as noted by the Court, is that those kinds of questions are really issues for trial – factual determinations best left for a jury (or a judge in the case of a bench trial). The only question that the judge had to grapple with in People v. Baum was whether or not an allegation that a person parked outside of a home when the Order of Protection dictated he stay away from the house is enough to charge or accuse someone with Criminal Contempt pursuant to Penal Law 215.50, as opposed to proving that he or she is in fact guilty of that charge beyond a reasonable doubt. Simply, facial sufficiency for an accusatory instrument is far less than what is required for proof beyond a reasonable doubt at trial.
Baum may have been a case of simply being in the wrong place at the wrong time, but part of a well-organized and effective defense in the context of any Criminal Contempt case regardless of the degree is not only to fight the case itself, but to protect the defendant from either abuse of the order by the protected party, or from simple mistakes and misunderstandings that can easily occur in the tense and stressful context of family turmoil or another similarly contentious situation.
Crotty Saland PC is a family law and criminal defense firm founded by two former Domestic Violence prosecutors in the Manhattan District Attorney’s Office.