In People v. Inserra, 4 N.Y.3d 30, 32, 790 N.Y.S.2d 72, 823 N.E.2d 437 , the Court of Appeals stated that “a prosecutor's information is jurisdictionally defective if the original information it supersedes and any supporting depositions do not contain adequate factual allegations.Summary of this case from People v. Known
Argued October 21, 2004.
Decided November 30, 2004.
APPEAL, by permission of an Associate Judge of the Court of Appeals, from an order of the Appellate Term of the Supreme Court in the Second Judicial Department, entered October 28, 2003. The Appellate Term (1) reversed, on the law, a judgment of the Criminal Court of the City of New York, Queens County (William M. Erlbaum, J.), which had convicted defendant, upon a jury verdict, of criminal contempt in the second degree, and (2) dismissed the information.
People v. Inserra, 2 Misc 3d 21, reversed.
Richard A. Brown, District Attorney, Kew Gardens ( Sharon Y. Brodt, Jennifer Hagan, John M. Castellano and Gary Fidel of counsel), for appellant.
Legal Aid Society Criminal Appeals Bureau, New York City ( Amy Donner and Laura R. Johnson of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
On this appeal by the People, we address the sufficiency of an information charging defendant with criminal contempt of an order of protection. In particular, we must decide whether a defendant's name on the signature line of an order of protection adequately supports an allegation that the defendant knew of the order's contents. We hold that it does.
A Queens County Criminal Court jury found defendant guilty of criminal contempt in the second degree ( see Penal Law § 215.50) for violating an order of protection. The order directed defendant to "stay away from" his ex-girlfriend and her home, school, business and place of employment. It further directed him to refrain from assaulting, stalking or harassing her. The People presented evidence that on the night in question defendant banged on the protected person's apartment door, shouting and demanding to be admitted.
Defendant appealed to Appellate Term, arguing that the original misdemeanor complaint, supporting deposition and superseding prosecutor's information all failed to allege that he had knowledge of the terms of the order an essential element of the crime ( see Matter of McCormick v. Axelrod, 59 NY2d 574, 583 [noting that "the party to be held in contempt must have had knowledge of the court's order"]). Agreeing with defendant, Appellate Term reversed the conviction and dismissed the information, holding that "[t]he information in the present case states only that defendant's `name' appears on the order, which is insufficient, as a matter of law, to establish that defendant had knowledge of its provisions." A Judge of this Court granted the People leave to appeal. We now reverse.
Citing CPL 100.40 (1) (c) and 100.50 (2), defendant correctly asserts that a prosecutor's information is jurisdictionally defective if the original information it supersedes and any supporting depositions do not contain adequate factual allegations. To be adequate, the allegations must establish, if true, every element of the crime charged and the defendant's commission of each ( see also People v. Casey, 95 NY2d 354, 360).
Here, the supporting sworn deposition of the police officer who took the victim's complaint states that he "examined a copy of [the] o[r]der of protection and that the defendant's name appears on the line for the defendant's signature." Although this statement does not prove that defendant actually placed his signature on the order, it is sufficient to allege the element of knowledge in an accusatory instrument. Defendant's name on the signature line of the order enables us to infer that he was aware of its contents, which are written on a single page in simple language and clear, legible type ( cf. Mesibov, Glinert Levy, Inc. v. Cohen Bros. Mfg. Co., 245 NY 305, 310 [Cardozo, Ch. J.] [discussing how a party's name on the signature line of a contract would be evidence of intent to be bound by the contract terms]).
Unlike People v. McCowan ( 85 NY2d 985), in which the defendant was merely informed that "an order" had been issued against him, here, defendant's name on the signature line sufficiently alleges that defendant received and read the terms of the order of protection. For pleading purposes, as based on the officer's attached deposition, the allegations, if true, were sufficient to establish that defendant violated each element of the crime charged, including his knowledge of the order of protection's contents. Of course, the People retained their burden to prove those elements at trial beyond a reasonable doubt.
It is not necessary for us to reach defendant's argument concerning the admissibility of the copy of the underlying order. We note that, in general, the best practice would be for the People to make sure that any court order used to support a criminal charge is properly certified and authenticated by the appropriate custodian of records.
Furthermore, we reject defendant's final argument that the prosecutor's information failed to allege a violation by omitting a statement that the protected person was at home when defendant banged on the door. The original misdemeanor complaint and supporting deposition plainly allege that the order of protection prohibited defendant from going near the protected person's home, whether or not she was present. That allegation gave the defendant sufficient notice of the conduct at the base of the People's prosecution.
Accordingly, the order of the Appellate Term should be reversed and the case remitted to that court for consideration of the facts ( see CPL 470.25 [d]; 470.40  [b]).
Order reversed, etc.