Opinion
Argued April 5, 2000.
May 4, 2000.
APPEAL, by permission of the Appellate Division of the Supreme Court in the Third Judicial Department, from an order of that court, entered June 10, 1999, which modified, on the law, and, as modified, affirmed an order of the Essex County Court (Andrew Halloran, J.), granting defendant's motion to dismiss the indictment to the extent of dismissing the first two counts of the indictment. The modification consisted of reinstating the first count of the indictment.
Defendant was arraigned in Justice Court upon charges of assaulting and menacing his wife. As a condition of defendant's pretrial release, the court issued a temporary order of protection. Thereafter, defendant became involved in an altercation with his wife and their oldest daughter. Defendant was indicted and charged with, inter alia, two counts of criminal contempt in the first degree for violating the terms of the temporary order of protection. Defendant moved to dismiss the indictment on the ground that, inter alia, the evidence before the Grand Jury was not legally sufficient.
The Appellate Division concluded, inter alia, that simply because the Town Justice failed to type the victim's name in the appropriate space in the preprinted order did not warrant dismissal of that count of the indictment pertaining to the wife; that a person may be found guilty of criminal contempt when he or she violates a duly served order of protection or an order given orally in court; that the Trooper present at arraignment testified at the Grand Jury proceeding that the Town Justice orally advised defendant of the order and that it applied to his wife; and that the presentation of a written order to defendant with explicit directives as to the conduct prohibited, coupled with the Town Justice's oral communication that the order pertained to the wife, constituted legally sufficient evidence to sustain the charge contained in count one of the indictment.
Paul J. Herrmann, for appellant.
Ronald J. Briggs, District Attorney of Essex County, Elizabethtown (Mark E. Anderson of counsel), for respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
Defendant appeals from an order of the Appellate Division which modified a County Court order by reinstating the first count of the indictment and, as so modified, affirmed. The dissenting Justice at the Appellate Division then granted defendant leave to appeal to this Court.
Notice of the contents of, and therefore of the conduct prohibited by, an order of protection may be given either orally or in writing or in combination to cover the whole set of circumstances required to be presented to a Grand Jury. In this case, the array of evidence is sufficient to support all the elements of the disputed charge, stemming from the alleged violation of the order (see, People v. McCowan, 85 N.Y.2d 985, 987) The written form order, coupled with the State Trooper's testimony that the Judge informed defendant that the order was issued for the temporary protection of defendant's wife, established that defendant was on sufficient notice of the prohibited conduct and to whom it related. In so holding, we reject defendant-appellant's argument that the charge was insufficiently presented because the State Trooper's testimony was inadmissible hearsay. That part of the evidence was offered "not for the truth of its content but to evidence the fact that the statement was made" (People v. Davis, 58 N.Y.2d 1102, 1103; see also, Prince-Richardson, Evidence § 8-105 [Farrell 11th ed]). Because we conclude that legally sufficient evidence exists to support all the elements of the charge of criminal contempt in the first degree, we are satisfied that the Appellate Division correctly reinstated that charge.
Chief Judge Kaye and Judges Bellacosa, Smith, Levine, Ciparick, Wesley and Rosenblatt concur.
Order affirmed, in a memorandum.