        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

25
KA 09-01157
PRESENT: SMITH, J.P., FAHEY, VALENTINO, WHALEN, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

KERRY A. COLEMAN, DEFENDANT-APPELLANT.


SHIRLEY A. GORMAN, BROCKPORT, FOR DEFENDANT-APPELLANT.

SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MATTHEW DUNHAM OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Monroe County Court (Stephen T.
Miller, A.J.), rendered April 6, 2009. The judgment convicted
defendant, upon his plea of guilty, of criminal contempt in the first
degree.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law, the plea is vacated and the matter is
remitted to Monroe County Court for further proceedings on the
superior court information.

     Memorandum: On appeal from a judgment convicting him upon his
plea of guilty of criminal contempt in the first degree (Penal Law §
215.51 [c]), defendant contends that his guilty plea was not
knowingly, voluntarily and intelligently entered. Although that
contention is not preserved for our review, we conclude that
defendant’s statements during the plea colloquy “cast significant
doubt upon his guilt with respect to the crime of [criminal contempt
in the first degree as charged in the superior court information
(SCI)], and thus this case falls within the exception to the
preservation requirement” (People v Jones, 64 AD3d 1158, 1159, lv
denied 13 NY3d 860; see People v Lopez, 71 NY2d 662, 666). An
essential element of the crime of criminal contempt in the first
degree pursuant to Penal Law § 215.51 (c) is that the defendant has
violated an order of protection issued pursuant to “sections two
hundred forty and two hundred fifty-two of the domestic relations law
[regarding orders of protection issued during child custody and
divorce proceedings], articles four, five, six and eight of the family
court act [regarding child custody, paternity, parental rights and
family offenses, respectively, or] section 530.12 of the criminal
procedure law [regarding victims of family offenses].” Another
essential element of the crime is that defendant has “been previously
convicted of the crime of . . . [, inter alia,] criminal contempt in
the . . . second degree for violating an order of protection as
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                                                         KA 09-01157

described herein within the preceding five years” (Penal Law § 215.51
[c]). Here, during an attempt to plead guilty, defendant indicated
that he had been previously convicted of the crime of criminal
contempt in the second degree and that he had an appeal pending with
respect to that conviction. He further indicated that such conviction
resulted from his actions at a school board meeting and that the order
of protection that he was alleged to have violated in this offense was
issued during that prior criminal contempt proceeding. County Court
stated that it could not accept defendant’s plea because defendant was
challenging the predicate conviction. At a subsequent proceeding,
defendant agreed with the prosecutor’s statement that defendant was no
longer challenging the predicate conviction, and the court accepted
his guilty plea. Although the court, before accepting defendant’s
plea, questioned him regarding his previous challenge to the predicate
conviction, it did not question him concerning the basis for the
issuance of the instant order of protection violated by defendant or
concerning the basis of defendant’s predicate conviction. We conclude
that defendant’s factual recitation negated essential elements of the
crime to which he pleaded guilty inasmuch as his colloquy indicated
that the order of protection was not issued pursuant to the statutory
sections set forth in Penal Law § 215.51 (c), and that the predicate
conviction was not based upon a violation of such an order of
protection. Thus, the court had a “duty to inquire further to ensure
that defendant’s guilty plea [was] knowing and voluntary” (People v
Lopez, 71 NY2d 662, 666). Consequently, as the People correctly
concede, “[a]lthough [the court] made some further inquiries of
defendant, none of them [was] even remotely sufficient to determine
that the plea was entered intelligently and with knowledge of the
nature of the charge” (People v Roy, 77 AD3d 1310, 1311 [internal
quotation marks omitted]). We therefore reverse the judgment, vacate
the plea, and remit the matter to County Court for further proceedings
on the SCI (see People v Jenkins, 94 AD3d 1474, 1475; see also Roy, 77
AD3d at 1310).

     Defendant further contends that the SCI is jurisdictionally
defective because it fails to allege that he violated that part of the
order of protection directing him to stay away from the person on
whose behalf the order was issued. “Because defendant’s contention is
related to the sufficiency of the factual allegations, as opposed to a
failure to allege the material elements of the crime, that contention
does not survive defendant’s guilty plea” (People v Price, 234 AD2d
978, 978-979, lv denied 90 NY2d 862). Inasmuch as we are vacating the
plea, however, we address defendant’s contention, and we conclude that
it lacks merit. The SCI is jurisdictionally sufficient because it
alleges that defendant committed the crime of criminal contempt in the
first degree and tracks the language of the relevant section of the
Penal Law (see id.). Thus, if defendant seeks greater specificity,
his remedy is to demand a bill of particulars (see People v
Starkweather, 83 AD3d 1466, 1466).

     In light of our determination, we do not address defendant’s
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                                           KA 09-01157

remaining contentions.




Entered:   March 15, 2013         Frances E. Cafarell
                                  Clerk of the Court
