The People, Respondent,v.Steven Baisley, Appellant.BriefN.Y.September 13, 2018D OUGOttL Argument Time Requested: To Be A rgued By: ANDREW R. KASS10 MINUTES COURT OF APPEALS STATE OF NEW YORK APLNO. 2017-00187 THE PEOPLE OF THE STATE OF NEW YORK, Respondent - against - STEVEN BAISLEY, Appellant. BRIEF FOR THE RESPONDENT DAVID M. HOOVLER DISTRICT ATTORNEY FOR ORANGE COUNTY ATTORNEY FOR THE RESPONDENT 255-275 MAIN STREET GOSHEN, NEW YORK 10924 TEL. 845-291-2050 ANDREW R. KASS ASSISTANT DISTRICT ATTORNEY OF COUNSEL FEBRUARY 8, 2018 TABLE OF CONTENTS TABLE OF AUTHORITIES 1 PRELIMINARY STATEMENT 1 INTRODUCTION AND STATEMENT OF FACTS 1 POINT I 4 THE APPELLATE TERM CORRECTLY HELD THAT THE LOCAL CRIMINAL COURT HAD SUBJECT MATTER JURISDICTION TO DISPOSE OF DEFENDANT’S CRIMINAL CHARGES. CONCLUSION 20 Table of Authorities !Cases: A.J. Temple Marble & Tile Inc, v Union Carbide Marble Care. Inc.. 87 NY2d 574, 580 [1996] 11 Lisa T. v King E. T., NY3d , 2017 NYSlip p 08800 [Dec. 19, 2017] 17 Matter of Report of August-September 1983 Grand Jury III. TrmXL. Suffolk County, 103 AD2d 176 [2d Dept 1984] 15 Matter of Penny Lane/East Hampton Inc, v County of Suffolk. 191 AD2d 19 [2d Dept. 1993] 16 McCormack v Axelrod. 59 NY2d 574 [1983] 9 Milbradt v Green Refractoris Co.. 79 NY2d 26 [1992] 11 People v Baislev. 55 Misc 3d 148(A), 85 NYS3d 875 [App Term 9th and 10th Jud. Dists. May 23, 2017 3,7 People vBaisley. 30 NY3d 947 [2017] 3 People v Boston. 75 NY2d 585 [1990] 11 People v Finnegan. 85 NY2d 53 [1995] 11, 14 People v Graham, 55 NY2d 144 [1982] 11 People v Jhon. 150 Misc 2d 842 [Crim. Ct Queens Cty 1991] 9 People v Halper. 209 AD2d 637 [2d Dept. 1994] 9, 14 People v Moody. 53 Misc 3d 31 [9th and 10th Jud. Dists 2016] 3, 5, 6,7 People v Tvchanski. 78 NY2d 909 [1991] 14 People v Woods. 95 NY2d 509 [2000] 17 !Regan v Heimbach. 91 Ad2d 71 [3d Dept. 1983]. appeal denied. 58 NY2d 610 [1983] 11 Statutes: CPL 1.20[24] 5 CPL 10.31[1] 5 CPL 530.11[1] 18 Domestic Relations Law §236 15 Domestic Relations Law §240 15 Family Court Act §156 4, 6, 7, 10, 12, 13, 14 Family Court Act §301.2[1] 15 Family Court Act §302.1[1] 15 Family Court Act §302.1[2] 15 Family Court Act §411 4, 6, 7, 8, 10, 11, 12 Family Court Act §439 4 Family Court Act §454 4 Family Court Act §812 18 Family Court Act §813 18 McKinney’s Cons Laws. Book 29 A §156 at 123 13 McKinney’s. Statutes §84 11 McKinney’s Statutes §94 11 ii Penal Law §215.50[3] 6, 8, 13 Penal Law §260.05 15, 16 Penal Law §260.05[2] 8, 13, 14 Penal Law §260.05[3] 15 UJCA 2001[1] 5 iii COURT OF APPEALS STATE OF NEW YORK X THE PEOPLE OF THE STATE OF NEW YORK, Respondent, APL NO. 2017-00187 - against - STEVEN BAISLEY, Defendant-Appellant. -X BRIEF FOR THE RESPONDENT PRELIMINARY STATEMENT By permission of the Honorable Leslie E. Stein, Steven Baisley appeals from an opinion of the Appellate Term for the Ninth and Tenth Judicial Districts dated May 23, 2017 that reversed a written decision and order of the Justice Court, Town of Goshen (Brady, J.) dated July 15, 2015 that granted defendant’s motion to dismiss and reinstated the accusatory instrument. INTRODUCTION AND STATEMENT OF FACTS By a criminal information filed with the Justice Court, Village of Goshen, defendant was charged with ten counts of criminal contempt in the second degree and ten counts of non-support of a child in the second degree (A: 20-23). The charges against defendant stem from an investigation into defendant’s failure to pay a substantial amount of child support as required by a duly issued court order of the Supreme Court, Orange County (Slobod, J.S.C) dated July 30, 2012. The charges covered the months between June 1, 2013 and December 1, 2013 and the additional months of January 1, 2014, April 1,2014, and June 1, 2014. Records from the Orange County Office of Child Support Enforcement showed that defendant owed more than $20,000.00 in child support payments. On June 11, 2014, defendant voluntarily surrendered to members of the Orange County Sheriffs Department and was issued an appearance ticket that was made returnable for July 16, 2014. Defendant appeared with his attorney before the Justice Court, Village of Goshen (Brady, J.) on June 11, 2014, waived a reading of the charges and entered a plea of not guilty. The matter was then adjourned over a number of court dates, and eventually for pretrial motions. On May 15, 2015, the People received a copy of the defendant’s omnibus motion, and opposed defendant’s motion to dismiss, which was based in part on a claim that the local criminal court lacked subject matter jurisdiction over his prosecution (A: 12-19, 27-39). In a written decision and order dated July 15, 2015, the Justice Court, Town of Goshen (Brady, J.) granted defendant’s motion to dismiss and dismissed both sets of criminal charges for lack of jurisdiction (A: 5-9). On or about August 7, 2015, the People filed a timely notice of appeal from the July 15, 2015 order (A: 4). 2 On appeal to the Appellate Term for the Ninth and Tenth Judicial Districts, the People argued that the trial court erroneously dismissed the charges for lack of jurisdiction. In an opinion dated May 23, 2017, the Appellate Term reversed Justice Brady’s decision and order and denied the defendant’s motion to dismiss, citing to its prior opinion that was decided in People v Moody (53 Misc 3d 31 [9th and 10th Jud. Dists. 2016f)(People v Baislev. 55 Misc 3d 148(A), 58 NYS3d 875 [9th and 10th Jud. Dists. May 23, 2017])(A: 3). On September 11, 2017, a judge of this Court (Stein, J.) granted defendant’s application for leave to appeal from the Appellate Term’s May 23, 2017 opinion (People v Baislev, 30 NY3d 947 [2017])(A:2). On appeal, defendant claims that the Family Court had exclusive jurisdiction over the criminal charges that were filed in defendant’s matter.1 l. The criminal charges remain pending in the local criminal court pending the determination of defendant’s appeal. 3 POINT I THE APPELLATE TERM CORRECTLY HELD THAT THE LOCAL CRIMINAL COURT HAD SUBJECT MATTER JURISDICTION TO DISPOSE OF DEFENANTS CRIMINAL CHARGES. In a written decision and order dated July 15, 2015, the Justice Court, Village of Goshen (Brady, J.) granted defendant’s motion to dismiss on the grounds that it lacked subject matter jurisdiction over the multiple criminal charges that had been filed against defendant. In particular, the court first looked at the provisions contained in §411 of the Family Court Act that afford that court with exclusive, original jurisdiction over support or maintenance proceedings. Next, the trial court considered the provisions contained in §§439 and 454, which outline the process by which a person could be subject to punishment or sanctions by the family court based on a finding of a willful violation of a family court support order, the fact that the Act also authorizes the family court to take certain actions upon such a determination or finding, as well as the ability to impose certain remedies, and the fact that §156 separately authorized the family court to punish a party for contempt. In turn, the court concluded that because the Family Court Act provided for specific punishment and remedies for a violation of a family court support order, the filing of criminal contempt charges in a local criminal court based on the alleged intentional violation of that order was 4 impermissible. Accordingly, the court concluded that it lacked jurisdiction over family court support proceedings, and therefore, by implication, it lacked jurisdiction over criminal contempt allegations arising from violations of such a support order. Finally, in applying the same circular logic, the trial court analogized the charge of non-support of a child to a glorified contempt charge and similarly concluded that it lacked jurisdiction over the non-support of a child charges. Accordingly, the trial court dismissed the criminal charges against defendant for lack of jurisdiction.2 The Appellate Term reversed and denied defendant’s motion to dismiss. Citing its prior decision in People v Moody (53 Misc 3d 31 [App Term 9th and 10th Jud Dists 2016], the Appellate Term observed that the jurisdiction of the local criminal court over criminal matters was governed by the Criminal Procedure Law, and that local criminal courts possessed “trial jurisdiction of all offenses other than felonies” (see Id. at 33; UJCA 2001[1]; CPL 10.31[1]). In turn, trial jurisdiction is defined as the “authority to accept a plea to, try or otherwise finally dispose of [an information]” (CPL 1.20[24]; Id.). Thus, the intermediate appellate court concluded that the town justice court had jurisdiction to dispose of the criminal charges of non-support of a child in the 2 In dismissing the criminal charges for lack of subject matter jurisdiction, the trial court did not address any of defendant’s other arguments that were raised in his pretrial motions. 5 second degree and criminal contempt in the second degree (see Id.). The Appellate Term also concluded that the grant of jurisdiction that was found in Family Court Act §411 had no bearing on the justice court’s jurisdiction to prosecute criminal charges, and the court also concluded that Family Court Act did not preclude the prosecution of a criminal contempt charge in a local criminal court. Rather, quoting the statute, the Appellate Term concluded that §156 provided the Family Court with jurisdiction to hear violations of the Family Court “unless a specific punishment or other remedy for such violation is provided in this act or any other law,” such as in the case with Penal Law §215.50[3] (see Id.). | : For the reasons that are more fully discussed below, the Appellate Term’s opinion should be affirmed in its entirety. As a threshold matter, to the extent that the underlying court support order for which defendant’s alleged intentional non-compliance formed the basis of the criminal charges that were filed in his matter was issued by Supreme Court, Orange County and not Family Court, defendant’s appeal to this Court arguably amounts to an advisory opinion. In fairness to the defense, the People never argued in either the local criminal court or in their appeal to the Appellate Term that the subject matter jurisdictional issue that was relied by the trial court was irrelevant in defendant’s case because the support order arose from a Supreme 6 Court and not a Family Court proceeding. Likewise, the Appellate Term also did not identify that issue in its opinion. Nevertheless, as a jurisdictional issue, the Court can reach the question for the first time in this appeal.3 In any event, for the reasons that were set forth in People v Moody (53 Misc 3d 31, 32-33), the Appellate Term correctly concluded that the local criminal court had jurisdiction over the criminal charges that had been filed in defendant’s matter. In support of his motion to dismiss the criminal contempt charges, defendant argued and the trial court agreed that the family court has exclusive jurisdiction over child support cases. Thus, as claimed by defendant and accepted by the trial court, the Family Court Act also established the sole criteria for establishing a contempt finding for a violation of a child support order as well as the sole jurisdiction for seeking enforcement of such an order through a contempt proceeding. In turn, the trial court construed §§411 and 156 of the Family Court Act to act as a complete jurisdictional bar to defendant’s criminal prosecution for 3. During the leave conference, Judge Stein raised the question as to whether the fact of a Supreme Court order would affect the analysis. Both parties mistakenly believed that defendant’s matter arose from a Family Court order. In that regard, Baislev represented one of seven separate appeals from Justice Court, Town of Goshen that were taken by the Orange County District Attorney’s Office from similar dismissal orders. The decision in Moody that was cited by Baislev did arise from the violation of a Family Court order, and, in that sense, this appeal might fall within a narrow range of cases in which a justiciable legal issue is still before the Court. 7 non-support of a child in the second degree in violation of Penal Law §260.05[2] and criminal contempt in the second degree in violation of Penal Law §215.50[3], Thus, the trial court concluded that defendant could not be criminally charged with criminal contempt in the second degree and with non-support of a child in the second degree based on his intentional failure to make child support payments in violations of a duly issued family court support order. The trial court’s reasoning was fundamentally flawed and was correctly rejected by the Appellate Term. The trial court’s reliance on §411 of the Family Court Act in the first instance was flawed because the institution of criminal charges in the local criminal court did not constitute a civil enforcement action as those terms are used in the Family Court Act. In fact, this was true for both the criminal contempt and the non-support of a child charges. Rather, the institution of criminal charges against defendant’s and other similar similarly situated parties served an entirely different public purpose. It served to both punish the most truly egregious offenders such as defendant and as a deterrent to other persons who might be tempted to similarly avoid child support payments without the prospect of criminal punishment. That understanding behind defendant’s criminal prosecution is fully consistent with long-standing authority that has consistently recognized that the prosecution for criminal contempt, for instance, serves to vindicate a public 8 ! concern as opposed to solely the rights of a private citizen (see McCormack v Axelrod, 59 NY2d 574, 582-583 [1983]; People v Jhon, 150 Misc 2d 842, 847 [Crim. Ct Queens Cty 1991]). Importantly, the criminal charges against defendant were instituted by the police and not as the result of a court filing by a private citizen. Moreover, reviewing courts have also distinguished between sanctions that are deemed to be punitive versus those that are remedial in nature. Thus, for example, in the case of a contempt proceeding, if the sanction is punitive, then the contempt proceeding is criminal. In contrast, if the sanction is remedial, the contempt is civil in nature. Furthermore, in other contexts, when it comes to the - criminal prosecutions for criminal contempt of orders of protection, reviewing courts have also rejected the notion that the court that issued the order of protection has exclusive jurisdiction over violations of its own orders (see People v Halper. 209 AD2d 637 [2d Dept. 1994]). All of those considerations fully support the conclusion that the institution of criminal charges against defendant did not act as an impermissible civil enforcement action which more properly belonged in Family Court. Importantly, neither §411 nor §156 of the Family Court Act require a different result. To be sure, the trial court’s decision rests in large part on its reading of those two provisions. Yet, its reliance on those statutes is misplaced. 9 Section 411 provides in pertinent part that “[t]he family court has exclusive original jurisdiction over proceedings for support or maintenance under this article and in proceedings under article five-B of this act, known as the uniform interstate family support act” (Family Court Act §411). In turn, §156 provides that “the provisions of the judiciary law relating to civil and criminal contempt shall apply to the family court in any proceeding in which it has jurisdiction under this act or any other law, and a violation of an order of the family court in any such proceeding which directs a party, person, association, agency, institution, partnership or corporation to do an act or refrain from doing an act shall be punishable under such provisions of the judiciary law, unless a specific punishment or other remedy for such violation is provided in this act or nay other law.” According to the trial court’s decision, when read in tandem, the two provisions acted as a complete bar to the filing of criminal charges against defendant. The Appellate Term correctly rejected such an interpretation, both as a matter of statutory interpretation and public policy. A primary goal of judicial interpretation of a statute is to give effect to the legislative intent. To that end, when the language of the statute is clear, it is presumed that the intent is reflected in the words chosen by the legislature and in the plain meaning that they express (McKinney’s Cons Law of NY, Book 1, 10 Statutes §84; see A.J. Temple Marble & Tile Inc, v Union Carbide Marble Care, Inc.. 87 NY2d 574, 580 [1996]; People v Graham. 55 NY2d 144, 152 [1982]). Moreover, commonly used terms in a statute should be construed according to their usual and ordinary meanings, unless it is clear that a different meaning is intended [see McKinney’s Statutes §94, supra; Regan v Heimbach. 91 AD2d 71, 72 [3d Dept. 1983], appeal denied. 58 NY2d 610 [1983]). At the same time, it is axiomatic that in construing a statute that the courts should not interpret it in a way that produces absurd results (see Milbradt v Green Refractoris Co., 79 NY2d 26, 36 [1992]; People v Boston. 75 NY2d 585, 588 [1990]). Nor, should a court legislate under the guise of statutory interpretation (see People v Finnegan, 85 NY2d 53, 58 [1995]). Here, Family court Act §411 means exactly what the statute says it means. In other words, by the plain terms of the statute, the conferral of original exclusive jurisdiction is limited to support and maintenance proceedings. Yet, for the reasons that are discussed above, defendant’s criminal prosecution plainly was not a support or maintenance proceeding or any other form of civil enforcement action. Indeed, there is no dispute that the criminal court could not alter or modify any aspect of the existing family court support order or otherwise order any action that would be deemed to be remedial with respect to defendant’s future compliance 11 with the existing order. Thus, on one hand §411 was inapplicable for the simple reason that defendant’s criminal prosecution was not an enforcement action with respect to either a support or maintenance proceeding. On the other hand, the filing of the criminal contempt charges as well as the non-support of a child charges in the local criminal court also in no way interfered with the jurisdiction that was conveyed to the Family Court by virtue of §411. Nor could divestiture occur by virtue of the filing of the criminal contempt charges in the local criminal court as is suggested by defendant. The criminal contempt charges that were filed in the criminal court could only be brought for past conduct. However, the filing of the criminal contempt charges would in no way supersede relevant Family Court proceedings or alleviate the defendant from his continued compliance with the support order. Even if a defendant were found guilty of the criminal contempt charges in a criminal court based on the intentional violation of a Family court support order, the defendant would still be responsible to the Family Court for the future compliance with that order, subject to the terms and conditions of the order. Similarly, Family Court Act §156 also does not create a jurisdictional limitation that would otherwise act as a bar to the filing of a criminal contempt charge or the related non-support of a child charge in a criminal court based on the intentional disobeyance of a duly issued support order of a Family Court. Rather, 12 §156 provides that as a matter of court procedure, in any case that relate to civil or criminal contempt proceedings in which the family court has jurisdiction, the provisions of the judiciary law shall apply and shall be punishable under the provisions of the judiciary law unless a specific punishment or other remedy for such violation is provided in this act or any other law. The commentary to the statute itself makes it clear that this section, in fact, is not all encompassing, and that the provision is intended to act as a restriction on the family court itself. In other words, the provision makes it clear that the family court is “bound by a specific section of substantive Family Court Act Article, as opposed to Section 156” (see McKinneys Cons Laws. Book29A §156 at 123). Thus, §156 acts a general provision when there is no other available substantive provision. Nowhere in §156 or in any other section of the Family Court Act or any other law is there a provision that prevents the filing of a criminal contempt charge or the charge of non-support of a child under the Penal Law in a criminal court on the grounds that Family Court had exclusive jurisdiction over the underlying proceedings that resulted in the underlying court order or mandate. Presumably, in enacting Section 156, the substantive provisions that govern contempt proceedings in Family Court, and Penal Law §215.50[3] as well as Penal Law §260.05[3], the Legislature was aware that the Family Court Act does not contain 13 any express language that bars the filing of criminal contempt charges or non¬ support charges for intentional violations of Family Court orders or mandates that require child support payments. As such, it is a fair inference that the exclusion of such a jurisdictional restriction was intended (see People v Finnegan, 85 NY2d 53, 58; People v Tvchanski, 78 NY2d 909, 911 [1991]). Indeed, if taken to its logical conclusion, the trial court’s reading of §156 could act as a bar to the filing of criminal contempt charges relative to violations of orders of protection issued by the family court, a circumstance that would produce an absurd result and one that the appellate courts have wisely rejected (see People v Halper. 209 AD2d 637). The court’s decision and analysis with respect to the set of charges that charged defendant with multiple counts of non-support of a child in the second degree is even more questionable. After all, by its very enactment of Penal Law §260.05[2j, the Legislature expressly conferred jurisdiction in the criminal courts for the prosecution of such a crime. That purpose and intended effect is gleaned from the fact of the enactment of the statute itself. Plainly, the statute confers jurisdiction to the state’s criminal courts in certain non-support cases. To hold otherwise, both ignores the clear legislative intent behind the statute’s enactment to provide for criminal prosecution of offenders in appropriate cases, and otherwise produces an absurd result because the trial court’s interpretation, if adopted, would 14 render the statute meaningless. Under such an interpretation, any defendant sixteen years old or older would be completely immune from criminal prosecution for violations of Penal Law §260.05 or the more serious felony charge because the adult could not be criminally prosecuted for violations of those criminal statutes in Family Court (see Family Court Act §§301.2[1]; 302.1[1]; 302.1[2]). Such a circumstance, represents the very antithesis of the ordinary rules governing statutory interpretation (see Matter of Report of August-September 1983 Grand Jury III, Term XI. Suffolk County. 103 AD2d 176, 183 [2d Dept. 1984]).4 Further evidence of the fact that the non-support of a child crime is not a civil enforcement statute in disguise is also shown by the fact that the criminal statute differs from other state laws in at least one key respect. Under the applicable criminal statutes, the child in question must be under the age of 18 [see Penal Law §260.05[3]). In contrast, the State’s Domestic Relations Law defines “child support” as a “sum to be paid ... for care, maintenance and education of any unemancipated child under the age of twenty-one years (Domestic Relations Law §§236, 240). Thus, it is clear that the enactment of the non-support charges did not simply mirror other existing child support laws. Instead, by design, the 4. Under the newly enacted legislation, the age for criminal responsibility will rise to eighteen. The point made here remains the same and is unaffected by that change. 15 Legislature chose to only criminalize certain types of non-support that deprived the most vulnerable children, or those children under the age of eighteen, of court- ordered child support payments. Additionally, this case does not implicate questions of preemption. Indeed, it was the same State Legislature that enacted the crimes that relate to non-support of a child and the Family Court Act. Thus, defendant’s criminal prosecution does not involve a circumstance where prosecution under a local law might be preempted by state law ('compare Matter of Penny Lane/East Hampton Inc., v County of Suffolk, 191 AD2d 19 [2d Dept. 1993]). In turn, because the criminal courts clearly have jurisdiction over the prosecution of non-support of a child complaints under Penal Law §260.05, public policy supports the idea that related criminal contempt charges should also be permitted to be prosecuted in the criminal courts. Viewed otherwise, a holding that recognizes the existence of criminal jurisdiction for non-support of a child while at the same time barring the prosecution for criminal contempt would produce an equally absurd and unmanageable result. Such an outcome could routinely foster the existence of two different proceedings in two different courts with the defendant likely represented by different attorneys in each court and the likely prospect of unnecessary delay as each court waited for the proceeding in the 16 other court to be resolved. In particular, a defendant in the family court proceedings could invoke a fifth amendment privilege, while at the same time, a contempt finding in the family court proceedings could implicate double jeopardy | with respect to the prosecution of the criminal charges (see e.g. People v Woods, 95 NY2d 509 [2000]). In order to avoid that scenario, it makes, sense to also permit the filing of criminal contempt charges in the criminal court. This is not to say that in some instances, the complainant might choose to separately pursue contempt proceedings in Family Court. However, the decision as to whether to file a petition in Family Court or to file a criminal complaint should be left to the complainant as well as the investigating police agencies as opposed to being dictated by a local criminal court more interested in calendar control than in the administration of justice in the individual case. While there is no doubt that this Court has also recognized that in certain types of proceedings the Family Court may afford a more “ameliorative and mediative” role for the trial court (see e.g. Lisa T. v King E. T„_ NY3d _,2017 NY Slip Op 08800 [Dec. 19, 2017], the ultimate wisdom of such a decision as to what type of action to pursue, whether in Family Court or by the filing of a criminal complaint, which may reflect any number of individual considerations, is not for a court to decide. The question of subject matter jurisdiction exists separate and apart from any other consideration, 17 including the merits of the underlying criminal complaint. Furthermore, the older caselaw cited by defendant for the proposition that exclusive jurisdiction lies in Family Court for certain types of cases involving family offenses is misplaced. The law was amended to provide for concurrent I jurisdiction in the Family and the criminal court, and a result, the Family Court no longer has exclusive jurisdiction over such enumerated crimes (CPL 530.11[1]; Family Court Act §§812, 813). On the other hand criminal contempt in the second degree is not one of the enumerated family offenses. Thus, while a petitioner could commence a contempt proceeding in Family Court for the failure to pay child support arising out of a Family Court order, criminal contempt charges against an adult could never be filed in Family Court based on a violation of the same order. And, as noted above, nor could non-support of a child be charged in Family Court in cases involving adult defendants. Finally, as the trial court acknowledged in its return that was filed in response to the People’s affidavit of errors, the court’s decision was inconsistent with its own prior rulings in which it found that certain of the earlier criminal prosecutions in other cases were barred by double jeopardy as a result of the imposition of jail sentences by the family court in connection with parallel contempt proceedings. Those rulings necessarily recognized that subject matter 18 jurisdiction was properly conferred upon the criminal court, but that, under the facts and circumstances of the particular cases, the fact that the defendant had previously served a jail sentence for contempt arising out of the family court proceedings that covered the same underlying factual allegations as the charges that were filed in the criminal court acted as bar to the criminal prosecution for the same conduct. Moreover, the same court also accepted guilty pleas in other matters involving similar charges. !For all of these reasons, the Appellate Term correctly reversed the trial court’s order that granted defendant’s motion to dismiss. 19 CONCLUSION The Appellate Term’s May 23, 2017 opinion should be affirmed. Respectfully submitted, DAVID M. HOOVLER District Attorney of Orange County Orange County Government Center 255-275 Main Street Goshen, New York 10924 (845) 291-2050 ANDREW R. KASS Assistant District Attorney 'Of Counsel Dated: Goshen, New York February 8, 2018 20 CERTIFICATION OF COMPLIANCE The undersigned, an attorney duly admitted to practice before the Courts of the State of New York, hereby certifies that the preceding Brief for the Respondent complies with Title 22 NYCRR §500.13(c)(1) as established by this Court. The foregoing brief was prepared on a computer. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman. Point Size: 14 Point. Line Spacing: Double. The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc, is 4533. ANDREW R. KASS Executive Assistant District Attorney Dated: Goshen, New York February 8, 2018 21 COURT OF APPEALS STATE OF NEW YORK X THE PEOPLE OF THE STATE OF NEW YORK, AFFIDAVIT OF SERVICE Appellant, -against-- APL NO. 2017-00187STEVEN BAISLEY, Respondent. X STATE OF NEW YORK: ss.: COUNTY OF ORANGE: The undersigned, being duly sworn, says: Iam not a party to the action, am over 18 years of age and reside in Orange County, New York. That on February 9, 2018, 1caused three (3) copies of the annexed Respondent's Brief, filed in People v Steven Baislev. _APL NO. 2017-00187, to be served on John Richard I. Herzfeld, Esq., Richard L. Herzfeld, PC, 112 Madison Avenue, 8th Floor, New York, New York 10016, by depositing a true copy thereof enclosed in a post-paid wrapper, in an official depository under the exclusive care and custody of the U.S. Postal Service within New York State. A l jQtX&P. ifY\ , / (The name signed must be printed beneath) CAROL M. BARNES Sworn to before me this 9th h day of February, 201§ Notary Public, State *‘”2Ml8ie4723 Notary Public