Scope of First Degree Criminal Contempt: Repeated Phone Calls, Calling Complainant “Bitch” May not Violate PL 215.51

Other than Aggravated Criminal Contempt, Criminal Contempt in the First Degree is the most serious and severe Criminal Contempt crime in New York. A prior felon would face a potential mandatory minimum of one and a half to three years in prison while even a first time felony offender could end up in prison for as many as four years. Without beating around the bush, if you are arrested in New York for violating New York Penal Law 215.51, expect that your criminal attorney will be fiercely advocating not only to avoid a felony conviction and incarceration, but for a judge to release you from custody at your arraignment.

As rightfully concerning an arrest for First Degree Criminal Contempt may and will no doubt be, it is not a defense to concede your conduct was illegal and throw yourself at the mercy of the court or Assistant District Attorneys. Yes, your defense may be one of mitigation in lieu of challenging the legality of the NY PL 215.51 arrest or the sufficiency of the evidence establishing the crime. However, these latter two defense may be the first line of defense you need to pursue.

In People v. Webb, 2013 NY Slip Op 5127 – NY: Appellate Div., 4th Dept. 2013, the defendant was arrested and charged with Criminal Contempt in the First Degree pursuant to New York Penal Law 215.51 [b] [iv] and Criminal Contempt in the Second Degree pursuant to New York Penal Law 215.50 [3]. These arrest charges arose from Webb violating an order of protection (sometimes called a restraining order) after he communicated by telephone with his former girlfriend, the mother of his child. At issue was not whether or not the defendant’s conduct violated NY PL 215.51(3) for calling his former girlfriend, but whether or not when he did so he had the intent to harass, alarm or annoy her without an legitimate purpose. While NY PL 215.50 (Second Degree Criminal Contempt) is violated when the call was made in violation of the order of protection, NY PL 215.51 (First Degree Criminal Contempt) has further elements and requirements.

According to New York Penal Law 215.51(b)(iv), a person is guilty of Criminal Contempt in the First Degree when, in violation of a duly served order of protection (again, also called a restraining order by non-criminal attorneys), or such order of which the person has actual knowledge because he or she was present in court when such order was issued, or an order of protection he or she: (iv) with intent to harass, annoy, threaten or alarm a person for whose protection such order was issued, repeatedly makes telephone calls to such person, whether or not a conversation ensues, with no purpose of legitimate communication.

In Webb, the evidence at trial established that five phone calls were made from the defendant to the complainant. The defendant called the complainant a “bitch,” among other colorful terms (“whore” too), and told her he would not pay child support and would embarrass her at future proceedings. Despite the tone of the calls and words used, according to the Appellate Court, “the only inference to be drawn from the evidence is that defendant made the calls with the intent to discuss issues of child support and visitation, not to harass, annoy, threaten or alarm his ex-girlfriend.”

Disagreeing with the decision, the dissenting judges found that “[a]lthough defendant contends that the purpose of his telephone calls was not to harass or annoy the victim, but rather his purpose was to discuss child support, we conclude that the nature and circumstances of the telephone calls, combined with the evidence of defendant’s ‘previous violent and abusive conduct toward the victim which precipitated the order of protection[], allow[ed] the jury to reasonably conclude that defendant’s purpose in telephoning the victim was simply to harass, annoy, threaten or alarm’ her and lacked any particular legitimate purpose’ (People v Tomasky, 36 AD3d 1025, 1026, lv denied 8 NY3d 927, quoting Penal Law [] 215.51 [b] [iv]; see generally People v Alexander, 50 AD3d 816, 817-818, lv denied 10 NY3d 955).

As a New York criminal lawyer who represents clients in Criminal Contempt arrests, the value of Webb is absolutely not lost on me and should not be on you. What may appear like a clear violation on its face may in fact not be a violation of the law as charged.

To read about New York Criminal Contempt charges and crime including Second Degree Criminal Contempt, First Degree Criminal Contempt and Aggravated Criminal Contempt, click the links found throughout this blog entry and search the relevant terms in the NewYorkCriminalLawyerBlog.Com.

Saland Law PC a New York law firm dedicated to criminal defense, was established by two former New York County (Manhattan) Assistant District Attorneys.

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