Opinion
2018-879 Q CR
07-23-2021
The PEOPLE of the State of New York, Respondent, v. Priscilla SALZBERG, Appellant.
Appellate Advocates (Paris C. DeYoung of counsel), for appellant. Queens County District Attorney (Johnnette Traill, Nancy Fitzpatrick Talcott and Antara D. Kanth of counsel), for respondent.
Appellate Advocates (Paris C. DeYoung of counsel), for appellant.
Queens County District Attorney (Johnnette Traill, Nancy Fitzpatrick Talcott and Antara D. Kanth of counsel), for respondent.
PRESENT: WAVNY TOUSSAINT, J.P., MICHELLE WESTON, DAVID ELLIOT, JJ.
ORDERED that the judgment of conviction is reversed, on the facts, and the accusatory instrument is dismissed.
Insofar as is relevant to this appeal, defendant was charged with attempted criminal contempt in the second degree ( Penal Law §§ 110.00, 215.50 [3] ) for an incident occurring on November 2, 2015, based upon an allegation that she had attempted to violate the terms of a lawful order of protection. In August 2017, defendant moved to dismiss the accusatory instrument on statutory speedy trial grounds. By order dated October 11, 2017, upon reargument, the Criminal Court denied the motion, finding that between November 2015 and August 2017 the People were chargeable with only 56 days of delay. Opening statements were made on December 21, 2017. Subsequently, defense counsel made two oral motions to dismiss, arguing that additional post December 21, 2017 delay should be charged to the People. The Criminal Court denied these oral motions.
At the trial, evidence was adduced that, on October 9, 2014, an order of protection was issued to defendant in favor of the complainant after defendant had been convicted of disorderly conduct. A senior court clerk identified People's Exhibit 3 as a certified copy of the order of protection. The witness also testified that it appeared to her that People's Exhibit 3 had been changed to state that it expired in 2016 instead of 2015 because the number "6" was written over the number "5." The witness further stated that it is the court clerk who fills out the information contained on an order of protection, and that errors are usually fixed by crossing out the error and initialing the change. She stated that the statute provides that a final order of protection for a disorderly conduct conviction is to last two years, and that is what the clerks would indicate on the orders of protection. People's Exhibit 3 indicated that a copy of the order of protection had been provided to defendant in court on October 9, 2014. Following the testimony of the complainant and other witnesses, evidence was presented that the order of protection required defendant to stay at least 100 yards away from the complainant, and that, on November 2, 2015, defendant was observed less than 100 yards away from the complainant and the complainant's home. Following the trial, the Criminal Court found defendant guilty of the charge.
On appeal, defendant argues, among other things, that the evidence was legally insufficient and that the verdict was against the weight of the evidence because the People failed to establish that a valid order of protection was in effect on November 2, 2015, that defendant had knowledge of the order of protection, and that defendant attempted to intentionally disobey the order of protection. Defendant's contention regarding the legal sufficiency of the evidence is unpreserved for appellate review since, at trial, she failed to raise, at the appropriate times, the specific arguments she now makes on appeal (see CPL 470.05 [2] ; People v Hawkins , 11 NY3d 484, 491-492 [2008] ; People v Hines , 97 NY2d 56, 61 [2001] ; People v Gray , 86 NY2d 10 [1995] ).
However, there is no preservation requirement associated with defendant's contention that the verdict was against the weight of the evidence, and this court necessarily must determine, as part of such review, whether all of the elements of the crime charged were proven at the nonjury trial beyond a reasonable doubt (see People v Danielson , 9 NY3d 342, 348-349 [2007] ; People v Thiel , 134 AD3d 1237 [2015] ; People v Fox , 70 Misc 3d 139[A], 2021 NY Slip Op 50121[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2021]). As we find that a different verdict would not have been unreasonable (see People v Zephyrin , 52 AD3d 543[2008] ), this court "must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ " ( People v Bleakley , 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller , 291 NY 55, 62 [1943] ).
Penal Law § 215.50 (3) makes it a criminal offense for a defendant to intentionally disobey "the lawful process or other mandate of a court," which includes a final order of protection, other than one "arising out of a labor dispute." The essential elements of the crime of attempted criminal contempt in the second degree, as charged herein, are that a lawful order of the court was in effect, that defendant had knowledge of the order, and that defendant attempted to intentionally disobey the order (see Matter of McCormick v Axelrod, 59 NY2d 574, 583 [1983] ; People v Ali , 63 Misc 3d 70, 71 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Defendant's contention is based on the fact that People's Exhibit 3, a certified copy of the final order of protection issued on October 9, 2014, has an expiration date which appears to have been changed from "10/8/15" to "10/8/16" wherein the number "6" is superimposed over the number "5." Defendant correctly argues that it is unknown when this change was made, or what date was actually present on the order of protection she allegedly received in court on October 9th.
The senior court clerk testified that, in her opinion, the number change was made on the same day defendant was sentenced, specifically because the color of the ink looks the same. However, the witness stated that she had never seen the original order of protection and was basing her testimony upon her view of People's Exhibit 3. Also, a detective testified that his DD5 report indicated that the complainant had informed him that the order of protection had expired and it was not until he printed out his own copy of the order of protection from his work computer that he believed that he had sufficient evidence to charge defendant. The detective also stated that the order of protection he printed out was not the same as the order of protection admitted into evidence as People's Exhibit 3. Moreover, during the detective's cross-examination, the Criminal Court stated that it had two separate orders of protection, the "original" which expired in 2015 and "the second one" which expired in 2016. Clearly, there exists more than one order of protection pertaining to defendant's October 9, 2014 conviction, and the People failed to present unequivocal evidence establishing that the change from 2015 to 2016 was made on the order of protection prior to it being provided to defendant in court on October 9, 2014. We note that the order of protection admitted into evidence as People's Exhibit 3 does not appear to contain the judge's signature.
In view of the foregoing, upon the exercise of our factual review power (see CPL 470.15 [5] ; People v Danielson , 9 NY3d at 348 ), we find that the verdict convicting defendant of attempted criminal contempt in the second degree was against the weight of the evidence. We reach no other issue.
Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed.
TOUSSAINT, J.P., WESTON and ELLIOT, JJ., concur.