The People, Respondent,v.Mary Anne Grady Flores, Appellant.BriefN.Y.October 11, 2017STATE OF NEW YORK: Time Requested: 15 Minutes To be Argued by: Lance Salisbury, Esq. COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK vs. MARY ANNE GRADY FLORES, Appellant APPELLANT'S BRIEF Appeal No. 2016-00137 Lance N. Salisbury, Esq. Attorney for Defendant-Appellant 408 North Tioga Street P.O. Box 7075 Ithaca, New York 14851-7075 Telephone No.: (607) 272-7669 Fax No.: (607) 272-9877 Brief completion date: November 25, 2016 STATE OF NEW YORK: Time Requested: 15 Minutes To be Argued by: Lance Salisbury, Esq. COURT OF APPEALS THE PEOPLE OF THE STATE OF NEW YORK vs. MARY ANNE GRADY FLORES, Appellant APPELLANT'S BRIEF Appeal~o.2016-00137 Lance~- Salisbury, Esq. Attorney for Defendant-Appellant 408 ~orth Tioga Street P.O. Box 7075 Ithaca, ~ewYork 14851-7075 Telephone ~o.: (607) 272-7669 Fax ~o.: (607) 272-9877 Brief completion date: ~ovember 25,2016 Jurisdictional Statement This court does have juridiction to review this appeal. The case originated in the Town ofDeWitt Court. An appeal was taken to Onondaga County Court as a right pursuant to CPL § 450.10 and CPL § 450.60 (3). Upon denial of the appeal by the Onondaga County Court (A.2), the appellant sought leave to appeal to the Court of Appeals pursuant to CPL § 460.20 and said Certificate granting leave to Appeal was granted by a judge of the Court of Appeals (Hon. Eugene M. Fahey) (A.l). The issues raised in this appeal were preserved and raised at the trial level and are properly before this Court. The issues related to the validity of the temporary order of protection were first raised by the defendant in her omnibus motion (A. 7) which was subsequently denied by the trial court (A.36-41), following oral arguments on the issues. (A.43- A.57) The defendant did not waive her right to appeal the issue of the validity of the temporary order of protection (A.58-A.73, in particular A.64- A.65; A.71-A.72), and the matter is preserved for this Court. The defendant did not waive the issue of the failure of the trial court to properly define a legal term in the order of protection for the jury, thus creating an ex poste facto order of the court and this issue is preserved for ·review by this Court. (A.221-A.237) Defendant further raised this issue in her CPL § 330 motion prior to sentencing (A239-A.249) and in oral arguments on this motion, which were denied by the trial court. (A.250- A.262) DEFENDANT/APPELLANT'S BRIEF TABLE OF CONTENTS Table of Cases .......................................................... . . 1 Issues Presented .......................................................... . 1 Statement ofF acts ...................................................... . 2 1. The prior protest and the issuance of the temporary order of protection .................................................... . 3 4 Argument: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 0 POINT 1: THERE WAS NOW AIVER BY THE DEFENDANT OF THE ISSUE OF THE VALIDITY OF THE TEMPORARY ORDER OF PROTECTION AND TillS ISSUE IS PRESERVED FOR REVIEW BY TillS COURT.............................................. 10 i. The defendant did object to the order of protection and has preserved her right to appeal on this issue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 16 POINT II: THE ORDER OF PROTECTION IN TillS CASE WAS INVALID AND OVERBROAD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17 1. The prior protest and the issuance of the temporary order of protection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7 2. The temporary order of protection is invalid as the named party in the order did not meet the requirements ofCPL § 530.13 ................................. 18 3. The temporary order of protection is invalid as it was improperly issued to protect property and not a person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 4. The order of protection is invalid as no good cause was shown for its issuance by a court ........................ 27 POINT III: THE ORDER OF PROTECTION WAS OVERLY BROAD AND VAGUE AND FAILED TO PROVIDE THE REQUIRED SPECIPICTY OF INFORMATION TO THE DEFENDANT . .. .. . . . . ... ... ... .. . 30 1. The vagueness and confusion as to the base boundary or property line on February 13, 2013 ........................ 31 2. The order of protection lacked specificity as to the banned behavior and left it to the defendant to guess as to the limits of the order.............................. 36 3. The vagueness of the order of protection is underlined by the inability of the trial court to provide a definition of the term "stay away" to the jury in this matter . . . . . . . . . 41 a. The trial court improperly abdicated its role in defining and settling issues of law and gave that power to the jury creating an ex poste facto order . .42 b. The defendant did not waive or abandon this argument at trial and it is properly preserved . . . 48 POINT IV: THE ORDER OF PROTECTION WAS OVERLY BROAD AND INVALID AS IT IMPINGES AND IMPROPERLY RESTRICTS THE FIRST AMENDMENT RIGHTS OF THE DEFENDANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 POINT V: THE EVIDENCE WAS LEGALLY INSUFFICIENT TO CONVICT THE DEFENDANT OF CRIMINAL CONTEMPT IN THE SECOND DEGREE ....................... 58 1. The Intent of the Defendant on February 13, 2013 ........... 59 CONCLUSION ............... ; ................................................................. 63 TABLE OF AUTHORITIES CASES 1. People v. Raduns, 70 AD3d 1355 (4th Dept 2010) lv. denied 14 NY3d 891 (2010), reconsideration denied, 15 NY3d 808 (2010) ............................................................ 20 2. People v. Shultis, 61 AD3d 1116 (3d Dept 2009) ......................... 20 3. People v. Somerville, 72 AD3d 1285 (3d Dept 2010) ..................... 21 4. People v. Creighton, 298 AD2d 774 (3d Dept 2002) ..................... 21 5. People v. Panetta, 41 Misc3d 614 -- ------ceity-et~--eityof-Middletown-;-20"1-3-)-:-:-:-:-:-::-:--:-:-:-:--:-:-:-:-:--=-:-=-=-::-:~-:-:--:-.-.-:--:-::-: -:-:-:~--2-t---------------- 6. People v. Smith, 4 Misc3d 909 (NYC Crim. Ct., NY Co. 2004) ................................ 21,22,23,25,26 7. People v. Epps, 37 NY2d 343 (1975) ....................................... 11 8. People v. Spence, 239 AD2d 218 (1997) .................................... 16 9. People v. Bostic, 10 Misc3d 775 (Dist. Ct. Suffolk Co. 2005) ...... 23,25 10. People v. Meggie, 184 Misc2d 883 (Dist. Ct. Nassau Co. 2000) . . . . . . 28 11. People v. Koertge, 182 Mise 2d 183 (Dist. Ct. Nassau Co. 1998) ............................................................................. 28 12. People v. Purpura, 12 Mise .3d 933 (Crim Court, N.Y. 2006) ....... 22,28 13. People v. Vangham, 189 Misc2d 613 (Dist. Ct. Nassau Co. 2001) ..... 28 14. People v. Van Glahn, 189 Misc2d 613(Dist. Ct. Nassau Co. 2001) .... 28 15. Scibilia-Carver v. Benack, Index No. 2013-1102 (Sup. Ct. Onondaga Co. 2013), Appendix A283-286 ................. 11, 17 16. McCullen v. Coakley,- US-, 134 S.Ct. 2518 (2014) .................... 54 17. Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972) ................. 52 18. Erznoznikv. City of Jacksonville, 422 U.S. 205 (1975) .................. 53 19. Marsh v. Alabama, 326 U.S. 501(1946) ................................... 53 20. Schenck v. Pro-Choice Network of Western New York, 519US357(1997) ...................................................... 54,55 21. Parkmed Co. v. Pro-Life Counseling Inc., 91 AD2d 551 {1 81 Dep't 1982) ............................................... 54 22. Madsenv. Women's Health Center, Inc., 512 US 753 (1994) .... ..... 54 23. New York ex rei. Spitzer v. Operation Rescue National, 273 F.3d 184 (2d Cir 2001) .................................................. 55 24. Nebraska Press Association v. Stuart, 427 U.S. 539 (1976) . . . . . . . . ... 56 25. US. v. Chatelain, 360 F.3d 114 (2d Cir 2004)........ .. . . . . . . . . . . . . .. . . . 56 26. Rogers v. New York City Transit Authority, 89 N.Y.2d 692 (1997) . . . 56 27. People v. Roblee, 70 AD3d 225 (3d Dep't 2009)................. ..... 30,56 28. Matter of Holtzman v. Beatty, 97 AD2d 79 (2d Dep't 1983) ................................ 11, 31, 36, 39, 42 29. Fordv.Kammerer,450F2d279 (3dCir.1971) .......................... 31 30. Matter of Sheridan v. Kennedy, 12 AD2d 332 (1st Dep't 1961) ... 36, 39 31. People v. Furman, 145 Misc2d 115 (NY City Crim. Ct., NY Co. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 39 32. People v. Bait, 34 AD2d 932 (1st Dep't 1970) ........................ 36, 39 33. Finlay v. Gideon, Index No. 2014-521 (Sup. Ct. Onondaga Co. 2014) Appendix, A287-314 . . .. .. . . ... . . . . 39, 40 34. People ex rei Finlay v. Gideon, 129 AD3d 1632 (4th Department, 2015)... .. ... .. .. .. ... . .. ... . . . . .. .... ... . .. .. .. .. ...... ... .. 40 35. Matter ofDEP v. City of New York, 70 NY2d 233 (1987) .............. 58 36. International Society of Krishna Consciousness v. Lee, 505 us 672 (1992) ............................................................ 57 37. Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) ................ 55 39. People v. White, 261 AD2d 653, lv. denied 93 NY2d 1029 [1999]) ... 59 40. People v Bleakley, 69 NY2d 490 (1987) .................................... 59 41. Perry Educational Association v. Perry Local Educator's Association, 460 U.S. 37 (1983) ............................................ 57 42. People v. Martin, 81 AD3d 1178 (3d Dep't 2011) .. . .. .. .. .. .. .. .. .. .. . 62 43. People v. McCoy, 59 AD3d 856 (3d Dep't 2009) ........................ 62 44. People v. Cabey, 85 NY2d 417 (1995) ..................................... 58 45. People v. Pierce, 266 AD2d 271 (3d Dep't 1999) ........................ 58 46. U.S. Constitution, Art. 1, § 10 ............................................... 43 47. U.S. Constitution, First and Fourteenth Amendments ................... 53 48. New York State Constitution, Art. I, § 5 ................................... 43 49. New York State Constitution Article 1, §§ 8, 9 ........................... 53 50. CPL § 530.13 (1) ........................... 21, 22, 25, 26, 27, 28, 29, 30,31 51. CPL § 530.13 (l)(a) ......................................................... 18 ISSUES 1. THERE WAS NOW AIVER BY THE DEFENDANT OF THE ISSUE OF THE VALIDITY OF THE TEMPORARY ORDER OF PROTECTION AND THIS ISSUE IS PRESERVED FOR REVIEW BY THIS COURT. 2. THE TEMPORARY ORDER OF PROTECTION IN THIS MATTER WAS INVALID AND OVERBROAD 3. THE TEMPORARY ORDER OF PROTECTION WAS OVERLY BROAD AND VAGUE AND FAILED TO PROVIDE THE REQUIRED SPECIFICTY OF INFORMATION TO THE DEFENDANT 4. THE ORDER OF PROTECTION WAS OVERLY BROAD AS IT IMPINGES UPON AND IMPROPERLY RESTRICTS THE FIRST AMENDMENT RIGHTS OF THE DEFENDANT 5. THE EVIDENCE WAS LEGALLY INSUFFICIENT TO CONVICT THE DEFENDANT OF CRIMINAL CONTEMPT IN THE SECOND DEGREE STATEMENT OF FACTS On February 13,2013, Ash Wednesday, a small peaceful civil protest was held by eight individuals at. the entrance to the Hancock airbase located in De Witt, New York. The purpose of the demonstration was to object to, and protest the United States government policies involving the use of drones overseas. The protesters conducting the demonstration were standing at the intersection of the entrance driveway to Hancock Field and East Malloy Drive in the Town ofDeWitt. ··~···· ···~··-~··-~·-···~·~~---The-defendant~Mary-AnneGrady-Flor.es-was-not-one.o.f.the-eight-------~----~~·-··~·~-~- protestors, but was present taking photographs of the protest. She was operating as a media person for the protest organization and was one of a number of individuals there in support of, and witnessing the protest. The protest involved the eight individuals standing and holding signs and standing in the entranceway of the drive to the entrance gate of the base. After the arrival of police on the scene the protest continued peacefully until an order to disperse was given to the eight protestors by the police at the scene. Following this order the eight protesters were arrested without any issue and taken into custody. 2 Prior to the order to disperse being given by the police, Mary Anne Grady Flores had left the scene of the protest and was walking along East Malloy Road towards a local diner located some distance away. Mary Anne Grady Flores was then arrested and taken into custody without incident as · she was walking along the road some distance from the entrance gate location. 1. The prior protest and the issuance of the temporary order of protection. On October 25, 2012, a prior non violent peaceful protest was held at Hancock Field outside multiple gates to the airbase, protesting the use of "drones" which are operated by the 174th Attack Air Wing of the Air National Guard, which is based at Hancock Field. At that protest, Mary Anne Grady Flores, the defendant here, was arrested along with a number of other individuals. The protesters in this case were arrested at a number of the entrance gates to the base, and were charged with trespass and disorderly conduct. At the her arraignment on these charges, on October 25, 2012, the defendant was issued a temporary stay away order of protection by the Hon. Donald Benack, jr.. (While Judge Benack was the justice for the Village of East Syracuse Court, he was sitting for arraignment and processing matters 3 for the Town of DeWitt Town Court, the town within which the airbase is located) The order of protection issued to the Petitioner was issued upon the request of Colonel Earl A. Evans, the commanding officer of the 174th Air Attack Wing, which is based at Hancock Field. The basis for the request was a sworn statement given by Colonel Evans in which he requested a stay away order of protection in order to keep protesters away from the base gates. This temporary order of protection remained in effect until the disposition of these original charges and is the order of protection at issue in the present case. Subsequently, in February of2014, the trial of the defendant and her co-defendants was held on this original matter. Mary Anne Grady Flores was acquitted of the trespass charge and convicted of the disorderly conduct charge in the 2012 matter. 2. The current case at bar. Following her arrest in the case at bar on February 13, 2013 , Mary Anne Grady Flores was charged with Disorderly Conduct and with Criminal Contempt in the Second Degree. Following her initial arraignment without counsel on February 13,2013, she subsequently appeared with counsel April 4 2, 2013. Omnibus motions were filed by the defendant on June 14,2013. The prosecution filed a reply, and motion arguments were heard by the trial court on July 11, 2013. At that time the trial court denied the defendant's motions. A trial date was subsequently set for May 15,2014. Following jury selection on May 15th, trial was held that day and the subsequent date of May 16, 2014. At trial there was testimony that a peaceful demonstration was held on February 13, 2013, Ash Wednesday, at the intersection of the driveway entranceto the HancockField gate entrance and East Malloy Road. This location was approximately 170 feet from the base entrance gate. Eight demonstrators were standing in the entrance to the driveway holding signs and blocking traffic. In addition, there were a number of other observers on both sides of East Malloy Road observing the protest. One of these individuals was Mary Anne Grady Flores who was taking photographs of the protest. During this protest she walked back and forth across East Malloy Road and was standing on the shoulder on both sides of the roadway. During the demonstration traffic was flowing in both directions on East Malloy Road. 5 Subsequently, upon a request from base personnel, police arrived at the scene. After some period of time an order to disperse was given and the eight protesters were arrested without incident or struggle and taken into custody. Following this process, Mary Anne Grady Flores was arrested as she was walking along East Malloy Road. She had departed the scene of the protest prior to the arrest process, and was walking on the shoulder of the road towards a local diner. She was charged with disorderly conduct and criminal contempt in the second degree, for violating the temporary order of protection issued in the underlying case. -------------- ----- ~'I'I:w-testimony-at-trial--:fr-Om--bg:th-prosecution-and-defensewitnesseS-- ------- -- --------- was that on the dateofthe protest, February 13, 2013, there was confusion among people present over the exact location of the base boundary. Multiple witnesses testified that either they were confused or that they were aware of confusion, over the location of the base property line. Prosecution witnesses testified that in fact the base property extended to the midline of East Malloy Road. These same witnesses testified that there was also a public easement for the roadway that allowed pedestrian and vehicle traffic. Witnesses testified that there were no signs along the roadway indicating that this was base property. The testimony from witnesses was that the only 6 signs were located on the base fence line which was located about 170 feet from the demonstration site and the roadway. The testimony from many of these same prosecution and defense witnesses was that Mary Anne Grady Flores did not participate in the protest and that she was merely taking photographs while standing in the roadway and on the shoulder of the road. The testimony was that the appellant was engaged in this activity as the media spokesperson for the local protest group. The key issue at trial was the order of protection and the meaning of · the term stay away contained in that order. During jury deliberations, ajury question was presented to the court seeking a legal defmition of the term "stay away" as contained in the order of protection. The prosecution and the court felt that they could not fmd a legal definition of the term in the statute and through other resources. The defense requested that the court provide the same defmition or explanation of the term that had been given to the defendant and other co-defendants. The court declined to do so and instructed the jury they should develop their own defmition based upon the testimony at trial and their own common sense. Following jury deliberations the evening ofMay 16,2014, the defendant was acquitted of the charge of disorderly conduct. She was 7 convicted of the charge of criminal contempt in the second degree. Sentencing was set for July 10,2014 and a pre-sentence investigation was ordered by the court to be completed by the Onondaga County Department of Probation. This PSI report recommended a sentence of a conditional discharge for the defendant. Subsequent to the verdict, and prior to sentencing, the defendant filed a CPL § 330 motion with the court. On July 10,2014 oral arguments were heard on the defendant's CPL § 330 motion and the court denied these motions. The court then proceeded to sentencing, and sentenced the '·~~·~ ~--~-~- --~--~----de-fendantto-.the-maximum-Sentence-Of-Oney:ear-oflocaLincarceratiOIUUld~a---~-·-~--~-~-~---~-~ fme of one thousand dollars. The defendant filed a Notice of Appeal with the court and served the District Attorney's Office with a copy of the notice immediately following sentencing by the court on July 10,2014. Subsequently a stay of sentence motion was filed in Onondaga County Court on or about July 14,2014. A stay of sentence was granted by Onondaga County Court on July 17, 2104 (Hon. Thomas Miller, presiding) A subsequent extension of the stay was further issued by the county court on November20, 2014 and on January 20, 2015. 8 Following oral arguments on the appeal, on January 8, 2016 the Onondaga County Court issued a decision denying the appellant's appeal, which was subsequently entered January 12,2016. The County Court did find the sentence of the defendant to be overly harsh, and reduced the sentence to six months of local incarceration. On or about February 26, 2016, an application seeking leave to appeal was filed with the Court of Appeals by the appellant. On June 23, 2016, the Hon. Eugene M. Fahey issued a certificate granting leave to appeal to the Court of Appeals and a stay of sentence pending resolution of this appeal. 9 ARGUMENT POINT ONE: THERE WAS NO WAIVER BY THE DEFENDANT OF THE ISSUE OF THE VALIDITY OF THE TEMPORARY ORDER OF PROTECTION AND miS ISSUE IS PRESERVED FOR REVIEW BY TIDSCOURT. The prosecution has contended below that the defendant has waived the right to appeal the issue of the validity of the order of protection at issue here. This argument is based upon a stipulation at trial between the parties that allowed for the introduction into evidence of the temporary order of protection without necessitating the use of multiple witnesses by the prosecution to introduce that document at trial. The Petitioner did not waive her right to appeal this issue. In fact, at trial the prosecution agreed that the stipulation at issue on this point was for the sole limited purpose of admitting the existence of the temporary order of protection into evidence and further argued that the issue of the validity of the order of protection had been resolved for trial purposes in pretrial motions and that any argument on that point must be done at the appellate level. 10 "A waiver of a right of a defendant must be the intentional relinquishment of a known right." (Matter of Holtzman v. Beatty, 97 AD2d 79,468 NYS2d 905 (2nd Dep't 1993), citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 SCt 1019, 82 L Ed2d 1461 (1938); see also City ofNew Yorkv. State of New York, 40 NY2d 649, 669, 389 NYS2d 332, 357 NE2d 988 (1976); People v. Epps, 37 NY2d 343, 350, 372 NYS2d 606 (1975) As the court in City of New York stated, 'A waiver is 'the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it." (City of New York, supra, at 668-669, citing Werking v. Amity Estates, 2 NY2d 43, 155 NYS2d 633) As the record of this case illustrates, there was no unequivocal waiver of the issue of the order of protection. The right to appeal was not intentionally surrendered and therefore cannot be considered waived. (People v. Cox, 71 AD2d 798, 419 NYS2d 345 (4th Dep't 1979) The intent of both the prosecution and the defense was to preserve the issue regarding the validity of the order of protection for appellate review. At trial the two parties introduced a stipulation regarding the temporary order of protection that was at issue in this case. In so doing, both defense counsel and the prosecution stated on the record that the stipulation referred to by the intermediate appellate court was for the limited purpose at 11 trial of introducing the existence of the temporary order of protection and that the issue of the validity of the order of protection was preserved for appeal. The defendant first attacked the validity of the order of protection in her omnibus motion filed with the trial court. (A.7) The trial court denied these motions and ruled that the order or protection was valid. (A.37; A48- 57) Subsequently, at trial there were discussions between the prosecution and the defendant's trial counsel regarding a stipulationastothe existence of the order of protection. After the prosecution introduced the stipulation, defense counsel at several points during the discussion of pre-trial matters raised or directed the discussion to the stipulation to make clear the limited purpose ofthe document. (A.64-65; A.71-72) These discussions occurred, as is reflected in the record, because the original judge who issued the temporary order of protection had passed away, creating a need for the prosecution to present several witnesses at trial to introduce the order of protection. (A.235) The stipulation reached between the parties was for the limited purpose of merely establishing at trial the existence of the temporary order of protection, and that the order of 12 protection had been issued by the trial court and been received by the defendant. This stipulation was for trial efficiency purposes, and both parties agreed on the record that this stipulation had no effect on the Defendant's overall argument that the order of protection was not a valid order. At trial, the prosecution and the court took the position that the law of the case was that the defendant's motions attacking the validity of the temporary order of protection had been denied. Therefore the "law of the case" was that the for the purposes of the trial the order of protection was a occur at the appellate level. The prosecution during these discussions took the following position: "Judge, it's, my, it's just my understanding ... at this points the order of protection is, it's not an issue of fact for the jury, it's an issue of law that's been decided by a judge, right so the validity of that?" (A.64) After an exchange with the other parties the prosecutor went on, "Well, I'm actually, ... ,I'm actually referring to the motions in this case from which you, which you denied defense counsel's motion ... " (A.64) The Court: "To vacate it." Prosecution: "Yup, so." 13 The Court: "I mean that's the case law ... " (A.64) The Court continued, "That's the case here, the case law from this case." (A.65) Defense Counsel: "Right." Prosecution: "Okay, so it just can't be argued that, I want to make sure just so I'm understanding of what I have to prove at trial, that it is not, that I can say to the jury that is a valid order of protection and you're to follow the judge's instructions on the fact that its' that way and not ... " (A.65) Defense counsel then sought to clarify and make clear that the stipulation was to admit the existence of the order of protection but that the Defense counsel was interrupted on this point by the prosecution who interjected and agreed and stated that the validity issue was an appellate issue, which the parties both agreed was the case law of the case given the ruling of the trial court. (A.65) Defense counsel returned to this issue to make sure it was clear that the stipulation was for a limited purpose. During this discussion of the stipulation, defendant's counsel noted that given the earlier court rulings regarding the validity of the temporary order of protection that the stipulation was for the limited purpose of admitting the existence of the 14 order of protection at trial. (A.71-72) The prosecution agreed and specifically stated that the stipulation was for that limited purpose. (A.71) That discussion was as follows: Defendant: "The one is just on the stipulation to the, order of protection, Your Honor. We stipulated in there a legal order of protection, cause I don't think there's any disagreement that based on the Court's rulings and everything in this matter that for this proceeding the jury trial itself we recognize the order of protection exists was there, it's legal, but I just want to make sure that language does not preclude or not was it intended by us to preclude if this case were ultimately to be on appeal to raise the issue of, of the order of protection itself." Prosecution: "Yes." Defense Counsel" "Yeah." The Court: "Right and, and that's on the record so." (A.71-72) It was clear to all the parties that the stipulation was for the limited purpose of introducing the order of protection into evidence and that given the pre trial rulings of the court, any attack on the validity of the order of protection itself had to occur at the appellate level. Given that the position of the prosecution at trial was that the stipulation was for the limited purposed of introducing the existence of the order of protection into evidence, and that the defendant could not argue the 15 validity of the order at trial given the decision of the trial court, the prosecution cannot now seek to argue that there was a waiver on this issue. i. The defendant did object to the order of protection and has preserved her right to appeal on this issue. The county court below was incorrect in asserting that Mary Anne Grady Flores had not objected to the issuance of the order of protection in this matter. There is nothing in the record of this case that supports any finding that the defendant did not object to the existence and issuance of the order of protection in the underlying case. Flores filed an omnibus motion in this case which argued that the order of protection was invalid and improperly issued. The trial court denied her motions on this ground, meeting the requirements of preservation. (See People v. Spence, 239 AD2d 218, 657 NYS2d 648 (1st Dep't 1997). The people below have argued that the defendant failed to object to the issuance of the temporary order of protection in the underlying case. While appellant would argue to the contrary regarding the underlying case and its record, there is nothing in the record of this case to support such an assertion by the respondent. In fact, the record in this case shows the opposite. In addition to her actions fighting the validity of the temporary 16 order of protection here, both the prosecution below and the trial court here noted that the defendant was fighting the order of protection in the underlying case. The prosecution below argued and in this case, the trial court specifically noted that Mary Anne Grady Flores had in the underlying original case gone so far in opposing the order of protection as to attack the validity of the order through an unsuccessful Article 78 action. (A.39) (See Scibilia-Carver v. Benack, Index No. 2013-1102, (Sup. Ct. Onondaga Cty 2013) (A.282) POINT II: THE ORDER OF PROTECTION IN THIS CASE WAS INVALID AND OVERBROAD 1. The Prior Protest and the Issuance of the Temporary Order of Protest The temporary order of protection that is at issue in this case was the result of an earlier peaceful non-violent protest that occurred on October 25, 2012 at the Hancock air base. At this protest a number of protestors were arrested for non-criminal violations for protesting at several of the entrance gates to the air base. Mary Anne Grady Flores was arrested at one of these 17 locations. Following her arrest and arraignment Ms. Flores was issued a temporary stay away order of protection in the name of Colonel Earl A. Evans, the commander of the 174th Attack Air Wing of the Air National Guard. The order of protection was issued following a written request by Colonel Evans for just such an order. In his sworn statement requesting the order of protection, the Colonel stated that as an authorized representative of the airbase he wanted the order to keep people away from the base entrance in order to stop protests from occurring there. (A.5) There was no indication, and there is no evidence in this record, that the officer had Flores on that date. Nor was there any basis cited for the request other than a desire to keep protesters away from the base gate. 2. The temporary order of protection was invalid as the named party in the order did not meet the requirements of CPL § 530.13 The temporary order of protection that Mary Anne Grady Flores is accused of violating has Colonel Earl A. Evans named as the protected party. Col. Evans did not meet the requirements ofCPL § 530.13 (1) (a) to be a named protected party, and as such the order of protection is invalid. CPL § 530.13 (1) (a) requires that a protected party listed in an order of 18 protection in a criminal matter be either a victim of a crime, or an actual witness to the crime. The order of protection was issued by the Hon. Donald Benack on October 25,2012 following the arrest of Mary Anne Grady Flores. The basis of the order of protection was the accompanying accusatory instrument and sworn statement of the colonel in which he requested the order of protection. (A.4-A.5) There is nothing in the sworn statement of Colonel Evans that indicates he was present at the protest on October 25,2012. There is no -~~-~---~-~~-evidence-that-the-offieerwas-evenon-the-base-eampus-on-the-~time-e-f-the- -----~~---··---------~- protest of October 25,2012. There is a complete lack of any evidence that the Colonel was an actual witness to the protest that produced the temporary order of protection. Nor has the Colonel ever claimed to be an actual witness to the protest of October 25, 2012. There was never a proffer of evidence made to suggest that Colonel Evans was present and was an actual witness to the demonstrations at issue. In addition, there is no evidence that Colonel Evans was a victim of a crime that would make him eligible to an order of protection, as this has been defmed under the law. 19 In his supporting deposition seeking an order of protection, Colonel Evans noted that he was doing so simply as the authorized representative of the base. (A.5) He stated that he was requesting the order to keep protestors away from the base gates during their protests. (A.5) The Colonel cannot qualify as a victim simply because of his status as commander of the 174th Attack Wing. There is simply no support in the law for such a broad interpretation of the term "victim", nor is there any support in the legislative history to Sl.lggest that the Colonel could qualify as a victim. Indeed the court rulings and the legislative history in this area is the The trial court had "no authority to issue an order of protection to a party who was neither a victim of a crime or a witness to a crime .... " (People v. Raduns, 70 AD3d 1355, 896 NYS2d 541 (4th Dept 2010) lv. denied14 NY3d 891,929 NE2d 1014,903 NYS2d 736 (2010), reconsideration denied, 15 NY3d 808,934 NE2d 902,908 NYS2d 168 (2010); People v. Shultis, 61 AD3d 1116, 1118, 876 NYS2d 748 (3d Dept 2009), lv denied 12 NY3d 929, 912 NE2d 1091, 884 NYS2d 710 (2009) (order of protection is overly broad if it extends to individuals unrelated to criminal action) 20 The prosecution also cannot seek to claim that Earl A. Evans is a properly covered party simply because he was a potential or designated witness at trial in this matter and thus covered under CPL § 530.13 (1) (a). The court in People v. Somerville directly addressed this issue when it stated that "[t]he witnesses referred to in the statute must be those who actually witnessed the offence for which the defendant was convicted, rather than simply all witnesses who testified at trial." (People v. Somerville, 12 AD3d 1285, 1288,900 NYS2d 468 (3d Dept 2010), citing People v. Creighton, 298 AD2d 774, 776; 749 NYS2d 309 (3d Dept 2002)) This finding ~-----excludes-a-witness-sueh-as-€monel-Evans--ftem-cens-ider-ati6n-feF-protootien----------------- with an order of protection as issued in this case. As Colonel Evans does not qualify for an order of protection under CPL § 530.13 (1), the order of protection cannot be viewed as valid. "An order of protection issued in a favor of a person not designated in CPL § 530.13 (1) is not a lawful court mandate and cannot support aprosecution for criminal contempt." (People v. Panetta, 41 Misc3d 614, 972 NYS2d 446 (City Ct., City of Middletown, 2013), citing People v. Smith, 4 Misc3d 909, 782 NYS2d 596 (NYC Crim. Ct., NY Co. 2004) (in absence of specific valid order that has been disobeyed there can be no contempt) 21 The sworn statement and request of the Colonel for the order of protection simply was in his capacity as commanding officer of the 174th Attack Air Wing of the Air National Guard. The prosecution has sought to previously argue in this case that the Colonel was a material witness at trial, and thus should be entitled to the protection of an order of protection. The law is clear, however, and the legislative intent of this statute supports the requirement that the protected party must be a witness of the actual crime and not merely a witness at trial. (See People v. Smith, supra, at 911) In the courts below, the prosecution ·······-- ------··---·-sought-to-rely-uponPoople-v;-Putpttr-a-te-suggesHhat-all-types-of.witnesS€8----------···--·-- are covered by CPL § 530.13. Purpura, however, dealt with victims only and did not address the issue of different categories of witnesses. (People v. Purpura; 12 Misc.3d 933 (Crim. Ct, Kings County 2006)) Indeed, at trial Colonel Evans testified for a very limited purpose. As the trial record and transcripts indicate, the purpose of Colonel Evan's testimony was to merely discuss the boundaries of the base and the impact of the non-violent protests upon the activities of the base. (A.74-98) 22 2. The temporary order of protection is invalid as it was improperly issued to protect property and not a person The temporary order of protection was also improper in that it sought to protect property and not a person. While Colonel Earl A. Evans is the named and protected party in this order, the purpose of the order, as stated by Colonel Evans, was to keep protesters away from the base main entrance and property and to keep the base gates open for traffic. The Criminal Procedure Law of the State ofNew York does not authorize a temporary order of protection to be issued to protect property or a place. (See CPL § 530,13{1)(a); Peopl?v, Smith,4 Misc3d909,9ll,782 NYS2d 596 (NYC Crim. Ct., NY Co. 2004) (no provision in the statute which authorizes the issuance of an order of protection in favor of a place); People v. Bostic, 10 Misc3d 775, 807 NYS2d 280 (Dist. Ct. Suffolk Co. 2005) In his sworn deposition dated October 25, 2012 which accompanied the complaint, and which was the basis for the issuance of the temporary order of protection, Col. Evans stated that, as an authorized representative of the base, he requested that an order of protection be issued so that the defendant, and all others so situated, would be kept away from Hancock Field, the airbase at issue in this matter. (A.5) The sworn statement solely complained about the blockage of the gates and the need to keep protesters 23 away from the gate property. There was no concern expressed for any base personnel or individual. (A.5) Colonel Evans also acknowledged that this was the purpose of the temporary order ofprotection at the trial of the defendant on May 15, 2014. Upon questioning by defense counsel, Colonel Evans stated that the purpose of the temporary order of protection issued on October 25, 2012 was to keep protestors "from blocking entry to the air base." (A.84-85) Colonel Evans also testified that he was not afraid of the defendant and was not concerned about her harassing or stalking or committing any of the listed violations contained in the order of protection form. ( A.85-86) Colonel Evans when asked, repeated that his sole concern in asking for the order of protection was to keep protestors away from the entrance to the gate of the base. (A.85-86) The true purpose of the order is reflected in Colonel Evan's trial testimony that he had no fear of the defendant or any of the other protestors; he simply wanted to keep them from the base entrance. (A.85) Colonel Evans also testified that he had never met the defendant Mary Anne Grady Flores or spoken to her at the time he requested the order of protection. (A.84) (While the statute does not require that a protected party know the person he or she is seeking to have the order issued against, the fact that the 24 Colonel had never met or spoken to the defendant does underline that the true purpose of the order was to protect the property of the base and not Colonel Evans himself~) While the temporary order of protection lists a person, it is clear from the testimony, and sworn statement of Colonel Evan, that he was not seeking protection for himself, but that rather the temporary order of protection was for one purpose only, and that was to secure an order to keep people away from the base gate, and protect the base property and its operations from demonstrators. ~-·~-~-~-----------~llnderCEL-§~510.13-(l){a)atemporacy.order~ofprote.ction.ma}'.-only:_~-----------~- be issued to protect a person, not property or a place. (See CPL § 530.13 (1) (a); People v. Bostic, 10 Misc3d 775,807 NYS2d 280 (Dist. Ct. Suffolk Co. 2005); People v. Smith, 4 Misc3d 909,911,782 NYDS2d 569 (NYC Crim. Ct., NY Co. 2004) While having an order of protection listed in the name of a person may appear to comply with the statute, it is clear that this order was issued only to protect the base entrance, and the base property, from protestors who may seek to block the gate in a non violent civil protest. As such, the purpose of the temporary order of protection was to keep base property clear a purpose which is not valid under CPL § 530.13 25 Chief Master Sergeant Michael Ramsey testified that at the time of the incident on February 13, 2013, the Colonel worked inside one of the buildings located on the base inside the fence perimeter. (A.109) The sergeant testified that it was a set of buildings on a campus similar to a college campus in terms of the physical setting. (A.109-110) While the use of a named person may be a clever legal strategy to try and sidestep the prohibition on the use of such orders to protect property, the use in this case clearly is contrary to the intent the legislature had in creating ·this statute, and as such isrepugnanttothe rule of law in this state. (See. People v. Smith, supra, at 911-912) To allow the use of an order of protection in this manner would expand the application of CPL § 530.13 in criminal cases far beyond the intent of the legislature. If the application is valid in this case, then it creates an expansion of the meaning of victim and witness to a crime under the statute and it would not be unreasonable to see a widening application of this type of use of criminal orders of protection. Examples of the broadened application ofCPL §530.13 are easy to find. Manager of stores, particularly big box retailers, who now routinely 26 issue no trespass orders to those charged with petit larceny, could now as in this case, seek an order of protection issued in their name, to keep certain individuals away from their stores. Similarly, universities, which now routinely issue persona non grata orders for those who are disruptive at public events, could seek an order of protection, very similar to this case, to keep individuals away from their campus. The growth and use of orders of protections in criminal cases would be far beyond the intent of the legislature in applying their use to victims of crime and to witnesses at trial who face threats and intimidation, and would degradethe value of such instruments in protecting~actual victims of crime as was intended by the legislature in creating this use of the statute. 4. The order of protection is invalid as no good cause was shown for its issuance by a court Under CPL § 530.13 a court may upon its discretion issue an order of protection for good cause shown. In this case there was no good cause shown and the issuance of the order of protection was an abuse of discretion on the part of the trial court. As discussed, supra, the request for the order of protection came from Colonel Earl Evans. In his sworn deposition seeking such an order of 27 protection, Colonel Evan's stated purpose in requesting the order of protection was based solely upon his desire to keep protesters from the base gate entrance. There is no evidence that any inquiry was made or conducted into the basis for the order of protection beyond the sworn statement of Colonel Evans. The legislative purpose in enacting CPL § 530.13 was to prevent intimidation of crime victims, and witnesses to crime, by defendants who had been released from jail on bail. (See People v. Meggie, 184 Misc2d 883, 712NYS2d316, 318{Dist. Ct. Nassau Co.2000}, citing People v. Koertge, 182 Mise 2d 183, 701 NYS2d 588 (Dist. Ct. Nassau Co. 1998); People v. Purpura, 12 Misc. 3d 933, 944 (Crim Court, N.Y. 2006)( orders of protection designed to protect persons subjected to harassment or violence)) The purpose of expanding orders of protection to those victims and actual witnesses of crimes in criminal cases is to "prevent intimidation, abuse and threats by a defendant against those involved in the accusation against him or her." (People v. Van Glahn, 189 Misc2d 613, 616, 734 NYS2d 820 (Dist. Ct. Nassau Co. 2001) As such, there is a requirement that there be an act of violence or intimidation against the protected party, or at a minimum an articulable risk 28 of safety involving the witness. There is no such risk here. Nor can the prosecution claim that the defendant was abusive or threatening to Colonel Evans in any manner. The Defendant was a participant on February 13, 2013, in a non violent sit in demonstration protesting certain policies of the United States government. The Petitioner and other protestors are members of the Catholic Church who oppose certain government policies related to war and the conduct of war on religious grounds. They are the classic definition of pacifists. The trial testimony of Colonel Evans was that he had never met the defendant. He stated that he had no fear or concerns about his safety from either the defendant or other protestors. (A.86) This further illustrates the lack of eligibility of the Colonel as a protected party and recipient of an order of protection as defmed by CPL § 530.13. While good cause may be inferred from the accusatory documents and supporting depositions accompanying said instruments, such good cause is still lacking in this case. The sworn statement of Colonel Earl A. Evans does not list any act or threat of violence or intimidation towards himself or any personnel of Hancock Field. The statement of the colonel states nothing other than a group of protesters blocked the gates of the base, and that he wanted an 29 order of protection to keep them away from the base gates during their protests. The court in People v. Vangham noted that a requirement of good cause in CPL § 530.13 must include an act of intimidation, threat or physical or mental abuse towards a victim or witness. In the absence of such an act, an order of protection is not justified and is invalid. (People v. Vangham, 189 Mise 2d 613, 616, 734 NYS2d 820, (Dist. Ct. Nassau Co. 2001) Given the lack of any good cause showing any threats, intimidation or cannot be seen as valid. POINT ill: THE ORDER OF PROTECTION WAS OVERLY BROAD AND VAGUE AND FAILED TO PROVIDE THE REQUIRED SPECIFICTY OF INFORMATION TO mE DEFENDANT Where an order of protection is vague or ambiguous any ambiguity must be resolved in favor of the defendant. (People v. Roblee, 70 AD3d 225, 890 NYS2d 166 (3dDep't 2009)) Thus, the ambiguity the order of protection must be resolved in the favor of the person charged with 30 contempt. (Matter of Holtzman v. Beatty, 91 AD2d 79,82-83 468 NYS2d 905 (2d Dep't 1983), citing Ford v. Kammerer, 450 F2d 279,280 (3d Cir. 1971)) The temporary order of protection issued to the defendant contained no specificity as to what conduct was required of her other than to stay away from the property of the airbase. As such the order was overly vague and did not meet the requirements under the law. The vagueness in the order is seen in the different definitions given to the term. The trial court had stated that the defendant could be present if she roadway or across the street from the base. (A.54; A.279); During the oral arguments defense counsel stated, " ... but the problem with that, ... with that is that there's both your arguments with that 600 East Malloy Road is Hancock Field and that if, if my client is outside in, in the roadway that, that can't be a violation of the order of protection.: The court responded, "Correct, ...... (A. 54) 1. The vagueness and confusion as to the base boundary or property line on February 13, 2013 At trial the testimony of multiple prosecution and defense witnesses was that at the time of the protest on February 13, 2013, there was a great 31 deal of confusion over exactly where the boundary line of the base property was located. The testimony of prosecution witness, Chief Master Sergeant Michael Ramsey was that the protestors were standing approximately 170 feet from the fence line and entrance guard shack on February 13,2013. (A.102) Sgt. Ramsey also testified that there was confusion among police officers, and others as to where the actual base boundary was located. (A.11 0-111) The sergeant testified that this confusion as to the location of the base boundary was a reason why after the February 13, 2013 demonstration, ··-----·-· ··-·-·--·-additional-signs·were·plaeed·aleng·the-edge-e-f.theeasement-that-exists..gn-.----------~--- the property boundary along East Malloy Road in order to provide delineation of the base boundary. (A.111) Sgt. Ramsey testified that there was a public right away or easement on East Malloy Road, the public road running adjacent to the airbase, and that members of the public could walk and jog on the shoulders of the road. (A.110) Colonel Earl Evans also acknowledged on cross-examination that any member of the public could drive or walk on the easement granted for the roadway. (A.91) 32 And in fact in people's trial exhibit number one, the police dash cam video tape of the demonstration, at 13 :20 in the recording, a jogger is seen running along the side of the road through the area where the arrest of the protestors occurred on February 13, 2013, along with the ongoing vehicular traffic on the roadway. Colonel Evans testified that the only signage that delineated the property line and base entrance on the date of the arrest of the defendant were the no trespassing signs located on the boundary fence which sites some distance back from the road, and the sign indicating the entrance drive to the entrance gate for the base on Malloy Road; (AHl-92} Colonel Earl Evans also testified that on February 13, 2013 there were no boundary signs along the edge of the easement and the property, but that such signs were there as of the trial date of May 2014. (A.91-92) Colonel Evans testified during cross examination that on February 13, 2013, the date of the arrest of Mary Anne Grady Flores, the only signs indicating the base property were located on the fence line of the air base. (A.92) This is the fence line that Sgt. Ramsey testified was approximately 170 feet from where the protest occurred. (A.1 02) Colonel Evans testified that at some point following the protests the base had a survey by a surveyor completed to delineate the property lines of 33 the base. (A.90) The same witnesses who testified about the base boundary line also testified that there was a public easement allowing public access along the roadway. The public nature of the roadway, which according to prosecution witnesses has a public easement or right of way attached to it, and its appearance as public property is evident in People's Exhibit One, the police video of the demonstration and subsequent arrests of the protesters, that was introduced at trial. This video is from a police dashboard cam which recorded much of the events of the demonstration on the date in question and the subsequent· arrest of the eight protesters. · Viewing the exhibit, it is clear from the vehicle traffic and the pedestrians and jogger who appears at approximately 13:20 in the video, that the roadway and shoulder area appear to be public property utilized by the public on a regular basis, and that there is no indication that this is actually part of the air base. As such it is clear that the belief of the defendant and others that this was public space was a reasonable belief. Numerous other witnesses also testified at trial to the confusion over the location of the base boundary line. Mary Anne Grady Flores testified at the trial that there were no signs along the road February 13, 2013 delineating a boundary line or indicating 34 where the base boundary was located. (A.165) Ms. Grady Flores also testified that there were no identifying features about any boundary line on that day (A.165) She also testified that she had never been told nor was aware prior to February 13,2013 where the base boundary line was located. (A.165-166) Mary Anne Grady Flores testified that she thought the roadway was a public road. Mary Anne Grady Flores testified that her belief on February 13, 2013 was that the boundary line of the base was the chain link fence and the guard shack of the entrance to the base. (A.173) She stated that her belief on that testified that she had been told that she had to be off the base property but could be in the roadway. (A.160) And the trial court noted during defense motion oral arguments the same standard. (A.54) Matthew Ryan testified that he was unaware of where the base property line was during the demonstration on February 13,2013. (A.200) Linda LeTendre, one of the eight protesters that day, also testified that she was aware that there was confusion over where the base property line was located on the day of the demonstration. (A.210) She testified that she thought that, they, the protesters were standing in the road to the base property. (A.213) 35 William Streip testified that he was also one of the eight protesters that day. He stated that there was confusion on that date about the exact location of the base boundary. (A.217) He also testified that there were no markings to identify where the actual base boundary line was located. (A.217) 2. The order of protection lacked specificity as to the banned behavior and left it to the defendant to guess as to the limits of the order. Where an order is vague and indefinite in proscribing behavior, a (See e.g. Matter of Sheridan v. Kennedy, 12 AD2d 332, 212 NYS2d 296 (1st Dep't 1961) (where terms of order are vague and indefinite a defendant may not be adjudged in criminal contempt for willful failure to take such action); Matter of Holtzman v. Beatty, 97 AD2d 79, 468 NYS2d 905 (2d Dep't 1983), (People v. Furman, 145 Misc2d 115, 546 NYS2d 755 (NY City Crim. Ct., NY Co. 1989), People v. Bait, 34 AD2d 932,933, 312 NYS2d 587 (1st Dep't 1970) (where the mandate in the order is vague cannot be in criminal contempt) 36 The order of protection issued by the De Witt Town Court merely stated that Mary Anne Grady Flores, the defendant, was to "stay away" from 6001 East Malloy Road. The term stay away was left undefmed by the court and provided no specificity as to what conduct was allowed or disallowed under the order. The order did not state if Mary Anne Grady Flores was to simply stay off the base property or if she was to stay a certain distance away from the base. Mary Anne Grady Flores testified that she was told to stay off the base property but that was never explained to her in terms of a specific location or distance, but was merely a general explanation- stay off ---- ----- -----------the-base--property-bui-oould-be-m--the-l"oadw-ay~- (A~-l-(}0)------------ -- ------- ------------------- The existing temporary order of protection here is overly vague, and fails to properly defme exactly what conduct would constitute a violation of the order as to staying away from the workplace ofEarl A. Evans. The order of protection lists as the workplace ofEarl A. Evans 6001 East Molloy Road, T /Dewitt. This address is the location of the campus of Hancock Field, a military entrance to the joint civil and military Syracuse Hancock International Airport. The campus of Hancock Field, the military component of the airport, consists of over twenty buildings and other facilities on a large campus which is enclosed by security fencing and security gates, as is shown in the defense exhibits introduced at trial. 37 The order of protection does not list or indicate which building inside the campus is the workplace of Earl A. Evans, or to what the address of 6001 East Malloy Road refers to. Nor does the order of protection specifically indicate how and where the Defendant's presence on a public roadway outside the campus of Hancock Field would constitute a violation of the order. The order here did not specify anything other than stay away from 6001 East Malloy Road. It provided no specificity or definition as to whether this referred to a particular building inside the air base, whether this · ---··-··- · ······-- -referred~to-theentire·airportt>rmmply-portioo.s-thereo:b-(Inde.ed,-in~theory,- --~· ~· ·--·~---~----- given that the airbase, which is the protected location here, shares runway space or access with the commercial portions of the airport one could argue that the defendant merely by being present in the commercial terminal at Hancock Field or in a plane on the runway would be in violation of this order of protection.) There is nothing in the order that indicates or specifies how far away the defendant must stay from the airbase or if the order applies to the entire airbase, and if so what constitutes the base property. 38 Where the terms of an order are vague a party cannot be in criminal contempt for taking the prohibited action. (People v. Furman, 145 Misc2d 115, 546 NYS2d 755 (NY City Crim. Ct., NY Co. 1989) Other courts have similarly found that if the terms of an order are vague in proscribing behavior, then a defendant cannot be found to be in criminal contempt for violating that order. (See Matter of Holtzman v. Beatty, 97 AD2d 79, 468 NYS2d 905 (2d Dep't 1983); Matter of Sheridan, supra (where terms of an order are vague and indefinite a defendant may not be adjudged in criminal contempt for willful failure to take such action); People v. Balt, 34 AD2d ~·······~-·······-··- · -·---93-2;93-3-,-3-1-2-N¥S2d-587-(-l_g-Dep-'-t--l97-0}(where--the-mandat-e~in-fue.order-is.------------·- vague cannot be in criminal contempt)) In Finlay v. Gideon, Index No. 2014-521 (Sup. Ct. Onondaga Co. 2014) (Hon. J. Brunetti, presiding) the court there dealt with this issue involving an almost identical order of protection emanating from the same town court at issue in this case. Judge Brunetti found that order of protection to be vague in that it failure to provide specificity to the term stay away exactly as the order at issue in this case fails to do. Judge Brunetti noted that the failure to specify a distance to stay away was evidence of the vagueness in these orders and that the order was not valid due to this lack of specificity. The judge specifically noted that the lack of specificity in the 39 order left it vague and left it for the defendant and police to both guess at its meaning and application and hence must be held to be invalid.1 This issue of the vagueness in the order is central to this case where, as discussed above, there was great uncertainty among people present at the scene over exactly where the base boundary was located. Given the vagueness in the order and the confusion over the location of the base boundaries, the actions of Mary Anne Grady Flores in this situation were exactly that envisioned in the court decisions cited above. The prosecution has argued previously below that the vagueness argument fails as the defendant must have had notice as she had been present at prior demonstrations where there were arrests. However, there was no evidence presented in any fashion about any of the prior demonstrations or arrests that could conceivably go to show there was prior notice on the part of Mary Anne Grady Flores. There was nothing presented to show that there were any arrests or even demonstrations at the same location along the roadway that would have provided notice or even if the prior arrest of the defendant had occurred at this gate or a different gate. 1 On appeal, the Fourth Department dismissed the appeal as moot, with dicta discussing that the habeas corpus petition would not be a proper way to bring the action, with the 40 3. The vagueness of the temporary order of protection is underlined by the inability of the trial court to provide a definition of the term "stay away" to the jury in this matter. During jury deliberations, the trial court received a question from the jury requesting a legal definition of the term "stay away" as contained in the temporary order of protection. (A.229) The court ultimately declined to provide a defmition to the jury, and instead instructed the jury to come up with their own definition. After receipt of the jury question, the court made a number of ------ --------- ------ -~--- --------------- - -- -- -- --~ --- ----~- ----- ----- ----- -~-- ---- -- -------- --------~---~ attempts to seek a definition of the term stay away. The court made phone calls to resource centers in Albany seeking help with an answer to this question, but was unable to obtain an answer to this question. (A.231; 254) The court noted that in his reading ofCPL § 530.13 there was no standard d fi . . . th t fth " " Th . 1 e1mt10n m __ e statue o .. e term stay away. ___ e prosecution a so argued that there was no legal definition of the term stay away. (A.233) The judge also indicated that he did not want to tell the jury that the term did not seem to be defmed in law. (A.234) discussion of the invalidity of the order of protection by Judge Brunetti still standing. See People ex ret Finlay v. Gideon, 129 AD3d 1632, 15 NYS3d 519 (4th Department, 2015) 41 The defense argued that the term had been defined and given a meaning by the court when it explained to defendants what conduct was permissible with the order of protection. The defense position on this point was not accepted by the court and this definition was not provided to the jury. This would seem to indicate that the trial court was uncertain as to the definition he had provided to the defendant in his court. The fact that the trial court felt it was unable to provide a defmition of what stay away meant in the order of protection provided to the defendant and that the prosecution similarly argued that there was not a legal defmition of this term illustrates the vague nature oftheorderofprotection. The fact that both the court and prosecutor felt that there was no way to define the meaning of stay away for the jury is an exact demonstration of the vague and indefinite nature of this stay order as it applied in this circumstance and the invalidity of said order of protection. (See Matter of Holtzman, supra, at 82) a. The trial court improperly abdicated its role in defining and settling issues of law and gave that power to the finder of fact creating an ex poste facto order The trial court added to the harm caused by the vagueness in the order of protection by declining to share with the jury the same definition of the term "stay away" the court had created for the defendant. After receiving 42 the jury's request for a legal definition of "stay away", the trial court decided not to provide such a definition, and instead instructed the jury to come up with their own definition. The trial court gave the following instruction to the jury: "Question is, is there a legal definition of stay away as pertains to the order of protection or has it just left the common sense. Your question relates to a question of fact and your are the sole triers of the fact based upon the testimony you have heard and the evidence ·that has been received relative to that issue." (A.237-238) In wrongly instructing the jury that defining the term "stay away" was not a legal definition, and the responsibility of the court, but rather was an -- ---- - ---------~ ----- -- -- -----~---- -- ~- ----- -- ~--- -- - - --- ---------- --~-- ----- ------------~---------·------··---·-------~---- issue of fact for the jury to determine, the trial court created an ex poste facto order that was defmed by the jury months after the conduct of the defendant. In so doing, the defendant was denied due process and fair notice of what behavior was required of her. Such after the fact application of the law is constitutionally infirm. (See U.S. Constitution, Art. 1, § 10; New York State Constitution, Art. I, § 5) This instruction to the jury came after the defendant had made multiple requests for a different instruction. Defense counsel requested several times that because a definition had been given to the defendant as to the meaning of "stay away", that same defmition should be provided to the 43 jury to define the term as it was defined for the defendant. (A.229; 231; 234). This was a critical issue as the defendant had testified that she had been told that she had to be off the base property, but that she was allowed in the roadway. (A.l60) Defense counsel requested that because the defendant had been given a definition of the term stay away, the same defmition should be provided to the jury to provide the legal meaning the court had given that term. The jury then could as the trier of fact determine if a violation had occurred. (A.231-237; A.243) It was unchallenged both at trial, and at the CPL § 330 hearing, by either the prosecution or the trial court, that the court -------- - -----------had-provided-several-defmitiens-ere-:x:planatiens--o-:faeeeptal>le-eenduGt-llllder----- - -- -------- the term stay away in the order of protection. During the trial discussion of the issue, and in response to defendant's CPL § 330 motion papers, and at oral argument on the papers, neither the prosecution nor the trial court contested the fact, or disagreed with defense counsel, that definitions or explanations of the term "stay away" and what conduct was permitted had been provided by the trial court. The trial court did not agree with the defense argument and determined that defining this term would be an issue of fact for the jury to determine. This was error by the trial court. The court in providing a 44 definition of the term "stay away" to the defendant and other co-defendants had given a legal definition and meaning to the term. This legal definition should have been provided by the court to the jury. The jury could have then as the finder of fact decided, whether based upon the facts at trial, the defendant had violated the legal meaning of the term. The trial court however, mistakenly determined that defming the term was an issue of fact for the jury to determine by creating their own understanding and definition of what that term "stay away" meant. The effect of the jury instruction is that the trial court instructed the jury to use their life experience, and the testimony ofwitnesses on this point as they chose in their minds to do, and to then develop their definition or meaning to this term stay away found in the order of protection. By providing the answer as quoted above, the trial court not only failed to provide the previously determined legal definition of the term stay away, but it also created an implicit inference that the testimony of the defendant that she had been given a definition by the court was not correct. The Defendant had testified that she had been given a definition of what stay away meant by the trial court and that she was trying to comply with the definition given to her (A.160; 161; 134) The trial court, when subsequently asked if there was a legal defmition of the term stay away, and 45 by then telling the jury that there had been testimony on that issue and they would have to determine the definition of the term stay away themselves, implicitly informed the jury that he would not confirm that a definition had · been provided to the defendant or what that definition was. The effect was to implicitly call into question the testimony of the defendant by suggesting there was no definition given by the court. This was a failure to provide a legal definition that related to the key issue at trial. The prosecution theory of the case was that Mary Anne Grady Flores intentionally violated an order of protection to stay away from 6001 ·--East~l6y--R:aatt---.'fhe-testimony·-6fiiRleh-{}ftfle-trialilealt-with-this--iss-l:le;·~----- ----·-- ----· -- The defense at trial focused on illustrating that there was great confusion over the base boundary or property lines of the base at the time of the protest that led to the arrest in this matter, and that there was no intent on the part of the defendant to violate the order of protection. The failure to provide the jury with the same definition or instruction given to the defendant invited the jury to create their own definition of this term. And in fact the jury did create their own understanding and definition of what this term meant. (A.243-244) As noted in the defendant's CPL § 330 motion, both counsel had met with members of the jury immediately 46 after the trial. Jurors indicated that they felt the mere presence of the defendant at the scene constituted a violation of the term stay away. (A.243- 245) This is a much broader definition and meaning of the term stay away than had been provided to the defendant and other co-defendants by the trial court. There were different definitions given to the defendant about being able to be present as long as they were not on the property of the air base. These included, being in the roadway and staying on the other side of the road. (A .54; A.257-258; 279) Allowing the jury to come up with a different separate definition was improper and underlines the vague nature ----------a:fthe-ordel'-Ofpmteetien-andhow~v-agueness--allowed-differentparties--te- interpret its meaning in different ways. The failure of the trial court to provide the prior definition is underlined by the statements of the trial court at sentencing of the defendant, and during oral arguments on the defense omnibus motions. During oral arguments on the defense motions, the trial court acknowledged that if the defendant was standing in the roadway (East Malloy road) she was not in violation of the order of protection. (A.54) At sentencing, the court noted that if the defendant had followed one of the defmitions of stay away provided by the court she would not have been arrested. (A.279) The court was clearly acknowledging that defmitions of the term "stay away" had been 47 The trial court disagreed and responded asking ''the evidence is in. How do I put that in?" (A.231) Defense counsel responded and continued to push for a definition, "Well I think, you have to ... the ... Define it. I mean, I think, there may be been testimony about that." The court then agreed that "There was, there was testimony." (A.231-234) Following this, defense counsel then continued to push for a definition stating, "I know I asked my client what ... how ... what was explained to her about the, the, the stay away, you know, what that meant and, I don't, and I, I think that's the only witness I asked that, because I don't think any ---- -----------ofthemhad-urders-ofprotectiorr~~1 -(A~-23-2-)-- -------- --- - -- --- ------- ------------------ ------- -- ------ ------- The prosecution argued against any definition while the trial court stated that stating it could not provide a definition and did not see how the court could do what the defendant was asserting, that it could only instruct the jury generally that based upon the evidence received and their judgment they would make a definition. The court declined to provide any explanation about the testimony and discussion of what the order of protection meant. (A.232) After equivocation by the court, and opposition to a definition by the prosecution, defense counsel continued to push for a definition or a direction to the testimony on that issue again stating, 49 "No. No. That's not the issue. The stipulation doesn't defme. They want a definition of what does, what does stay away mean and I think it's, because it doesn't just mean stay away. It ... I think, we all recognize that and I think you have that, because you would have to refer them to the, the testimony that was taken on what the order of protection meant." (A. 233) The defense wanted the trial court to provide a definition or at least point ot the testimony about a defmition being given to the defendant. The trial court responded that he did not think he could do that in the manner requested, and that he would instruct only the jury that they would have to rely upon the testimony and evidence received. (A.232-234) Following the denial by the trial court to agree to the defense request, defense counsel tried once again to raise the issue that the defendant had been given an order only to be cut offby the prosecutor. Defense counsel argued," ... My only issue was that she was given a definition and I ... So I think, that was the ... " (A.234) The trial court then interrupted and stated, "Well and it's probably the only thing in evidence, in evidence." (A.234) Defense counsel consistently argued that the court had to provide the same defmition to the jury that was provided to the defendant. When the trial court stated it could not see how to do so with evidence closed, the 50 defense sought to provide a means or explanation of how that could be achieved by pointing to the testimony of witnesses on the issue contained in the jury question. The argument of the defense was that a legal definition had been given to the defendant. And if the trial court felt constrained in how it could provide the defmition, then the fact that there was testimony in the record on this issue provided a means for the court to provide the definition to the jury. The trial court disagreed and declined to give the requested instruction and instead informed the jury that this was a matter for them to defme and decide themselves. Once the trial court had made its decision not agreeing to the defense position on the jury question, the defense argument had been rejected by the court. As is reflected in the trial transcripts, at that point it was the duty of defense counsel to try to ensure that any answer to the jury question preserved as closely as possible a reference to the testimony of the defendant who had testified on this issue, and to have the jury encouraged to review the appropriate testimony on that issue. In so doing, defense counsel did not waive the issue. 51 POINT IV: THE ORDER OF PROTECTION WAS OVERLY BROAD AS IT IMPINGES UPON AND IMPROPERLY RESTRICTS THE FIRST AMENDMENT RIGHTS OF THE DEFENDANT Colonel Evan's stated purpose in requesting the order of protection was to keep protestors away from the base gates. (A.5) The true purpose of the order of protection was to bar protests in traditional areas of public of protection was to deny the defendant, and others so situated, their constitutional rights to freedom of speech, freedom of assembly and freedom to petition for address of their grievances under the First and Fourteenth Amendments of the United States Constitution and Article One, sections 8 and 9.1 of the New York State Constitution. The order of protection is vague and overly broad, and unnecessarily burdens the constitutional free speech rights of the defendant. The Supreme Court has held that it is constitutionally infirm to discriminate in regulations or restriction of speech or expression on the basis of the content of that expression. (Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S CT 2286, 52 332 Led2d 212 (1972); Erznoznikv. City of Jacksonville, 422 U.S. 205, 95 S Ct 2268, 45 L Ed2d 125 (1975)) The evidence at trial was that East Malloy road is a traditional public way open to both pedestrian and vehicular traffic. Two prosecution witnesses at trial, Colonel Evans and Sgt. Ramsey, both members of the air guard unit stationed at the airbase, testified that there were public easements for the East Malloy Roadway on which the demonstration and arrest of Mary Anne Grady Flores occurred. (A.110; A.91) The prosecution exhibit one, the police dash cam video showing the scene, also supports this as it shows both pedestrian and vehicular traffic along the roadway during the demonstration. As such this roadway qualifies as a public way. (See Marsh v. Alabama, 326 U.S. 501, 66 S Ct 276, 90 L Ed2d 268 (1946) The order of protection here is vague and overly broad and unnecessarily burdens the constitutional free speech rights of the defendant. The order violates Petitioner's rights to freedom of speech, freedom of assembly, and freedom to petition for redress of grievances under the First and Fourteenth Amendments of the U.S. Constitution and Article 1, Sections 8 and 9.1 of the N.Y. State Constitution. (hereinafter the free speech rights of the Petitioner) 53 The purpose of the order of protection is designed to bar protests in traditional areas of public access near the base entrance. This is clearly seen in the case of Mary Anne Grady Flores who was in the roadway or on the shoulder of the roadway adjacent to the base during the entire incident at issue in this case. This type of broad restriction on demonstrators near a targeted location was rejected by the Supreme Court in McCullen v. Coakley, - US - , 134 S.Ct. 2518, 189 Led2d 502 (2014). The holding of the Court in McCullen suggests that while the type of demonstrations that have occurred near the air base here may offend many, and may seem undesirable, "this aspect of traditional public fora is a virtue, not a vice." (McCullen, 134 S.Ct. at 2529) The breadth of the order of protection in this case silences the defendant and overly burdens her free speech rights. The order of protection by its vague and undefined stay away requirement, without more, enacts a more substantial burden on Grady Flores' speech than is required. That is evidenced by the prosecution in this case. As such it violates the First Amendment. (McCullen, 134 S.Ct. at 2538); Schenck v. Pro-Choice Network of Western New York, 519 US 357, 117 SCt. 855, 137 Led2d 1 54 (1997)); Parkmed Co. v. Pro-Life Counseling Inc., 91 AD2d 551,457 NYS2d (1st Dep't 1982)) The courts have long held that in evaluating an injunction or temporary restraining order where issues of rights under the First Amendment are at issue, the key is to determine whether the injunction burdens more speech than is necessary to secure a significant government interest. (Schenck v. Pro-Choice Network of Western New York, 519 US 357, 374, 117 SCt 885 (1997); Madsen v. Women's health Center, Inc., 512 US 753, 114 SCt 2516, 129 L Ed2d 593 (1994), see also, New York ex rel. Spitzer v. Operation Rescue Nationa/,273 F.3d 184 (2d Cir 2001)) "The concern that an overbroad statute deters protected speech is especially strong where, as here, the statute imposes criminal sanctions". (Ashcroft v. Free Speech Coalition, 535 U.S. 234)(anti-pomography statute found invalid as violation of the First Amendment); People v. Golb, 23 NY3d 455 (2014)(NY harassment statute struck down on First Amendment grounds) And in this case, we see exactly that situation where Ms. Grady Flores has been charged with criminal contempt and sentenced to a term of local incarceration. 55 Where, as here, the order does overly burden the defendant's speech, d h . . d . . . . al Th h as compare to w ___ at 1s requrre , 1t 1s unconstltution _. __ e courts _ave been clear. Any order would have to be constructed to prevent obstruction while preserving the rights of the defendant under the First and Fourteenth Amendments and Article 1, §§ 8, 9.1 of the State Constitution. The free speech test requirements of Schenck and Madsen do apply to injunctions such as orders of protections in criminal cases. (See e.g. Nebraska Press A,~sociation v. Stuart, 427 U.S. 539 (1976) (striking down an injunction prohibiting certain forms of publicity by press in homicide -------case-)j--lJ.-S;-V;·Ghatelain,-3-60~-l-l4-(2d-C-ir--2004)(Se-Gend-C-irGait-·····----- ····-------- -·-··----··--·-·--·-------·-· applying New York law recognized the applicability of the First Amendment to order of protection)) This concern applies even in the case of military establishments. While military bases may not be a public forum, this Court has applied this constitutional concern involving the free speech rights of demonstrators to the military, noting that exclusions from a non-public forum "must be reasonable in light of the purpose for which the particular property and forum serve." (Rogers v. New York City Transit Authority, 89 N.Y.2d 692, 699 (1997)) 56 The petitioner here does not seek the right to trespass on the military base. She does argue that she cannot be, and should not be, denied the right to observe, witness, or engage in non violent protests colored under the constitutional right to seek redress from the government, while doing so on property that has been opened to public access and use. Petitioner thus relies upon the established principle that when the government has opened property for use, it creates a designated public forum or space which is "subject to the same limitations as that governing a traditional public forum." (International Society of Krishna Consciousness v. Lee, 505 US 672, 678 {1992), citing Perry Educational Associationv. Perry Local Educators Association, 460 US 37, 46 (1983)) In this case, witnesses from the military base testified that while their base property may actually run to the center line of the roadway upon which the Petitioner was standing during this incident, there is a public easement and public access for both pedestrians and vehicular traffic on this roadway and adjacent shoulder. (A.91; A. 110) As the base has acknowledged that it has opened this area where the arrest occurred to public use and access any prohibitions regarding access to this public area must be considered under the standards governing a traditional pubic forum discussed above. 57 To hold that Ms. Grady Flores is guilty of violating an order of protection while standing on the shoulder of this public space is an illustration of what the Court was concerned with in McCullen, Schenck, Parkmed and the accompanying line of cases. POINT V: THE EVIDENCE WAS LEGALLY INSUFFICIENT TO CONVICT THE DEFENDANT OF CRIMINAL CONTEMPT IN THE SECOND DEGREE The evidence at trial was legally insufficient to convict the defendant of criminal contempt in the second degree. Even viewed in a light most favorable to the people, a rationale trier of facts could not fmd that the charge had been proven beyond a reasonable doubt. (People v. Cabey, 85 NY2d 417 (1995); People v. Pierce, 266 AD2d 271, 273 (3rd Dep't 1999)). The Appellate Division, Third Department, directly addressed this issue in People v. Roblee where it stated that if vagueness exists in an order of protection, and where there is no unequivocal mandate, then the evidence is legally insufficient. (Roblee, 70 AD3d 225,228, 890 NYS2d 166 (3d Dep't 2009); Matter ofDEP v. City of New York, 70 NY2d 233,240 (1987), 58 (See People v. Bleakley, 69 NY2d 490, 495; People v. White, 261 AD2d 653, 656, lv. denied93 NY2d 1029 [1999]). The evidence as discussed supra is that the order of protection was invalid and that it was overly broad and vague with the lack of specificity making it an invalid order. 1. The intent of the Defendant on February 13, 2013 The defendant testified at trial that she had no intent to violate the order of protection. As discussed, supra, Mary Anne Grady Flores testified - · --·· ·- -- ·· -····· --·--thatshe-did-net lrnow-where-the-boundary--linewaslocated,-and-that-she --~ -- ~~--~~~-- . -~----~---~ believed she was on a public road at the time she was taking photographs of the event. This was also the testimony of a number of other witnesses that there was confusion over the boundary line. Mary Anne testified that she was not involved in the planning of the event that day (A.l44) Multiple witnesses also testified that the defendant was not involved in the planning of the protest that occurred on February 13th. Ellen Grady (A.l39) stated that she was present for the planning meeting and Mary Anne was not involved. Matthew Ryan testified that he believed the defendant was not involved in the planning meeting. (A.l97) 59 The testimony of multiple witnesses also was that Mary Anne Grady Flores had no intent to violate the temporary order of protection during the protest that occurred on February 13,2013. Ellen Grady testified that she was one of the protesters and that the defendant was not standing with them. (A.199) Matthew Ryan also testified that he was one of the eight protesters and that Mary Anne was not involved in the protest. (A.198) Father William Pickard testified that he was one of the eight protesters that day and that Mary Anne Grady Flores was not a. demonstrator. (A.220) William Streip, testified that he was also one of the ·· - ·· · -----eight-protesters1hat·clayand-that-MaryAnneUra.dyFleres-did-net--- -- --- -- -- ·-·-············· participate in the protest. (A.216) Linda LeTendre also testified that the defendant was not involved in the protest and that Mary Anne had told Ms. LeTendre that she wanted to make sure she did not violate the order of protection. (A.210) Father Pickard also testified that Mary Anne told him that she would not be involved in the planning of the protest and that she did not want to violate the order of protection. (A.220-221) Sgt. Ramsey testified on direct examination that he saw Mary Anne Grady Flores walking around filming or taking pictures, and walking back 60 and forth between the two sides of East Malloy Road during the protest. (A.l 03-1 04) The sergeant also testified that there were eight demonstrators that day holding signs and that Mary Anne Grady Flores was not one of those eight. ( A.ll 0) He also testified that she was one of a number of people walking around observing the protest. ( A.lll) The Sergeant testified that he went to the scene of the protest and talked to the officers parked there and that this was on the edge of the entrance way to the base gate. (A.103) It is also significant to this issue of intent that Mary Anne was ----asquitt-ed-by-thejury -o-fthe-sharge-o-fdisorderl-y-co-ndust,which-was-directly---------·· --------- related to the actions of the protest itself. With this acquittal the jury dismissed the argument that Mary Anne had participated in the protest or engaged in the behavior of blocking traffic, etc. that was carried on by the protestors themselves. This is a clear indication that the jury did not believe that Mary Anne had engaged in the protest or sought to block the entrance gate of the base. What is left is the issue of where Mary Anne was standing and walking and if this constituted an intentional breach of the mandate in the order of protection. As discussed, supra, there was an acknowledged confusion and lack of information regarding the exact base boundary line. 61 Combined with the definition of conduct given to the defendant by the trial court that allowed her to be on the roadway outside the base, and what exact behavior was required to avoid a willful and intentional violation of the order of protection, the conduct of the defendant that day does not meet the required standard to find an intent to violate the temporary order of protection. (See People v. Martin, 81 AD 3d 1178 (3d Dep 't 2011 ); People v. McCoy, 59 AD3d 856 (3d Dep't 2009)) Thus, the verdict was legally insufficient and this Court should reverse. 62 CONCLUSION For the foregoing reasons, the judgment of conviction and sentence for Appellant Mary Anne Grady Flores should be reversed and dismissed, and the Appellant should be granted such other and further relief as the Court deems just, equitable and proper. Dated: November 25,2016 63 Certificate of Compliance with Page Limitations, Typeface Requirements and Type Style Requirements 1. This brief complies with the word limitations ofRule 500.13 (c) in that it contains 13,434 words as calculated by the word package utilized in preparing the brief, excluding the parts ofthe briefexemptedbyRule 500.13 (c)(1). 2. This brief complies with the typeface requirements of Rule 500.1 G) (1) and the type style requirements ofRule because it has been prepared in a proportionally spaced typeface using Word 2007 and 14-point Times New Roman ··- ---type-style.-······-···-~-~--~- -~-------- --·---~ --~--- ----- -·--------~----~---··-· ---~ --- ~---·~--·---· Dated: November 25,2016 ance Salisbury, Esq. Attorney for Appellant Office and P.O. Box 408 North Tioga Street P.O. Box 7075 Ithaca, New York, 14851 (607) 272-7669