This is an estate case where Defendant moves this court to inspect the Grand Jury minutes and to dismiss various counts of an Indictment on several grounds including legal insufficiency. Defendant also claims that certain counts are duplicitous, provide insufficient notice, and are too vague. Defendant moves to dismiss three counts of Criminal Contempt in the Second Degree on the grounds that he had not been served with any order of protection in the days of the alleged violations.
The Defendant was arrested on July 21, 1997 and charged in a felony complaint with several counts each of Criminal Contempt in the Second Degree, Aggravated Harassment in the Second Degree, Harassment in the Second Degree and Attempted Coercion in the Second Degree. At the time of his arraignment on the felony complaint, the defendant did not file notice of his intention to testify before the Grand Jury. Defendant was subsequently indicted by the Grand Jury for Grand Larceny in the Second Degree, Grand Larceny in the Fourth Degree, Aggravated Harassment (24 counts), Criminal Contempt in the Second Degree (3 counts), Harassment in the Second Degree (2 counts), Attempted Coercion in the First Degree, Attempted Coercion in the Second Degree, and Menacing in the Second Degree.
According to the Grand Jury testimony, these charges arose out of numerous incidents occurring between August 1996 and July 1997. Beginning in August 1996, the defendant, 44, was living with his 77-year-old mother, the complainant in this case. He lived with her until June 26, 1997. Defendant’s mother gave the defendant an allowance on a weekly basis while he was living with her. This allowance was given reluctantly, and allegedly coerced through threats and physical intimidation by the defendant.
Between June 27th and July 2nd, while the defendant was in the hospital, the complainant allegedly received three threatening and harassing phone calls from the defendant. Over the next two weeks she received another phone call from him every few days, totaling thirteen calls.
The defendant argues that the three counts of Criminal Contempt in the Second Degree should be dismissed as he was not served with any Order of Protection until July 21, 1997, the day of his release from the hospital. The defendant maintains that any of the acts for which he is charged during his stay in the hospital do not violate the order. The prosecution has offered no evidence indicating that the defendant was ever served with the June 27, 1997 Order of Protection.
In the Grand Jury minutes, the complainant suggests that the defendant knew about the order of protection. Even prior to the 1994 amendments to the Penal Law affecting Criminal Contempt in the First Degree, the Court of Appeals had required that under Criminal Contempt in the Second Degree it is “not enough to simply inform a defendant that ‘an order’ has been issued, without also telling the defendant, either orally or in writing, the contents of the order and the conduct it prohibits”. When, however, one has been informed of a protective order’s existence and contents, this knowledge is sufficient to support a charge of Criminal Contempt, even though the order itself has not been served. In this case, the mother’s testimony, which implies that the defendant may have known of the existence of the order of protection, is insufficient to show that he knew of the contents of the order of protection, or any specifics at all.
As no evidence was presented before the Grand Jury that the defendant knew of the contents of the subject protective order, the contempt charges must be dismissed.
Having found that the defendant had never been informed of the contents of the June 27, 1997 protective order, the three counts of Criminal Contempt in the Second Degree must be dismissed. The court nonetheless wishes to clarify the proper procedure to be employed when service of an Order of Protection is sought to be issued against and served upon a person who is in a hospital or psychiatric facility, either voluntarily or involuntarily.
A person cannot be served while a mental patient in a hospital unless the court issuing the order has been informed that the recipient is a patient at a hospital. Furthermore, when it is alleged that a person has a mental deficiency, a Court should make a determination whether a guardian ad litem should be appointed. A guardian ad litem will be appointed if the court determines that the defendant was judicially determined to be incompetent, or if he is incapable of adequately prosecuting or defending his rights.
Although the defendant in the matter sub judice, “may” have been informed about the existence of an Order of Protection, and assuming arguendo that he knew of its contents by service contrary to the articulated procedure set forth by statute and rule, the issuance and service would be nonetheless ineffectual as against public policy.
The rule puts the burden on the party seeking the order to inform the court of the defendant’s current residence. Due to the sensitive nature of persons undergoing psychiatric treatment, the patient and his interests must be paramount. As the complainant herself was responsible for her son’s placement in Coney Island Hospital, it is not an unreasonable burden for her to be required to inform the Family Court that he had been hospitalized, as well as the present location of her son when seeking the order of protection. Thus, it would be an injustice if this court were to permit a family member to have a relative committed, and then be permitted to serve process without following proper procedure. One can imagine the potential abuses that would occur if courts were to allow the mandated procedures to be circumvented.
Under the circumstances of this case, even assuming arguendo that the People had been able to demonstrate that the defendant was served with the protective order, contempt would not lie, as the issuance of the order and the service thereof was contrary to law and against public policy as noted above. One cannot infer from the evidence before the Grand Jury that the defendant’s mother, a party to the Family Court proceeding, served defendant herself. Nonetheless, some courts have held service by a party to be merely irregular, while other courts, including the Second Department, have found this service to be fundamentally defective in violation of CPLR 2103[a] 5.
The court need not distinguish whether service was merely irregular or in fact jurisdictionally defective, as no evidence of any service upon the defendant has been shown. For this very reason, the Court would not need to determine whether a defendant would be excused from obeying an order of protection based on a defect in service.
Absent an adherence to the procedure articulated in 14 NYCRR § 22.2 and the safeguards contained in CPLR §§ 1201 and 1203, the very issuance of the order of protection, as well as its service, are inherently suspect. The court wishes to use this opportunity to give notice that, due to the number of mentally ill defendants who come through this court, the proper procedure for issuance and service of an order of protection set forth in 14 NYCRR § 22.2 is to be followed in the future.
This court finds that the defendant was not notified of the contents of the protective order, nor was he properly served pursuant to 14 NYCRR § 22.2(a). Thus, the three counts of Criminal Contempt in the Second Degree are hereby dismissed.
The defendant maintains that the People’s failure to notify him that Larceny by Extortion, a crime uncharged in the felony complaint, would be presented before a Grand Jury denied him of his right to testify under CPL 190.50.
The court has put on the record that the Grand Jury notice and presentation was proper even though the defendant was not notified that charges other than those contained in the felony complaint would be presented before the Grand Jury.
The court, having read the Grand Jury minutes, finds that the evidence adduced before the Grand Jury was legally sufficient to establish the finding of each and every count of the indictment, except the three counts of Criminal Contempt in the Second Degree.
Accordingly, the defendant’s motion to dismiss the indictment is denied except the three counts of Criminal Contempt in the Second Degree are hereby dismissed as discussed above. The defendant’s motion to dismiss one or more counts of Grand Larceny on the grounds of duplicity, lack of specificity and proper notice is denied.
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