People v. Clark , 692 N.Y.S.2d 748 ( 1999 )

Crew III, J.

Appeal from an order of the County Court of Essex County (Halloran, J.), entered June 17, 1997, which, inter alia, partially granted defendant’s motion to dismiss the indictment.

On September 6, 1996, defendant was arraigned in the Town of North Hudson Justice Court upon charges of assaulting and menacing his wife. As a condition of defendant’s pretrial release, the court issued a temporary order of protection. Thereafter, on September 14, 1996, when defendant’s wife and daughters went to the marital home to retrieve some personal belongings, defendant appeared and an altercation ensued between defendant, his wife and their oldest daughter. As a consequence, defendant was indicted and charged with, inter alia, two counts of criminal contempt in the first degree for violating the terms of the temporary order of protection. Thereafter, defendant moved to dismiss the indictment on the ground that, inter alia, the evidence before the Grand Jury was not legally sufficient to support the underlying charges. County Court granted the motion with respect to counts one and two, reasoning that the temporary order of protection was defective in that it did not name defendant’s wife or oldest daughter and did not sufficiently inform defendant of the conduct he was to avoid. The People have appealed.

The order in question, which was personally served upon defendant and signed by him at his arraignment in Town Justice Court, provided, inter alia, that defendant not assault, harass, intimidate, threaten or otherwise interfere with “[specify victim(s), or witness(es) or member(s) of victim’s(s)] or witness’s(es’) family or household]:-”. We are of the view that simply because the Town Justice failed to write or type the “victim’s” name into the appropriate space in the preprinted order does not warrant dismissal of that count of the indictment pertaining to defendant’s wife. The law is now clear that a person may be found guilty of criminal contempt when he or she violates a duly served order of protection or an order given orally in court (see, People v McCowan, 85 NY2d 985, 987). Here, a State Trooper who was present at defendant’s arraignment testified at the Grand Jury proceeding that the Town Justice orally advised defendant of the temporary order of protection and, more to the point, that it applied to his wife. We believe that the presentation of the written order to defendant, with explicit directives as to the conduct prohibited, coupled with the Town Justice’s oral communication that the order pertained to defendant’s wife, constituted legally sufficient evidence to sustain the charges contained in count one of the indictment.^*

Mercure, Yesawich Jr. and Graffeo, JJ., concur.

* Count two of the indictment accuses defendant of contumacious conduct involving his oldest daughter. Inasmuch as the temporary order of protection does not mention defendant’s daughter and, unlike the wife, there is no evidence that he was orally advised that it applied to his daughter, County Court quite properly dismissed count two.