         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
552
KA 10-00973
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,

                    V                              MEMORANDUM AND ORDER

RICHARD ROACH, DEFENDANT-APPELLANT.


REDMOND & PARRINELLO, LLP, ROCHESTER (BRUCE F. FREEMAN OF COUNSEL),
FOR DEFENDANT-APPELLANT.

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF
COUNSEL), FOR RESPONDENT.


     Appeal from a judgment of the Supreme Court, Monroe County (Alex
R. Renzi, J.), rendered February 25, 2010. The judgment convicted
defendant, upon a nonjury verdict, of criminal contempt in the second
degree.

     It is hereby ORDERED that the judgment so appealed from is
affirmed.

     Memorandum: Defendant appeals from a judgment convicting him
following a nonjury trial of criminal contempt in the second degree
(Penal Law § 215.50 [3]), arising from his violation of a temporary
order of protection. We reject defendant’s contention that the
misdemeanor information upon which he was prosecuted was
jurisdictionally defective because it contained only a conclusory
allegation that he had knowledge of the temporary order of protection.
“It is a fundamental and nonwaivable jurisdictional prerequisite that
an information state the crime with which the defendant is charged and
the particular facts constituting that crime . . . In order for an
information to be sufficient on its face, every element of the offense
charged and the defendant’s commission thereof must be alleged”
(People v Hall, 48 NY2d 927, 927, rearg denied 49 NY2d 918; see CPL
100.15 [3]; 100.40 [1] [c]). “So long as the factual allegations of
an information give an accused notice sufficient to prepare a defense
and are adequately detailed to prevent a defendant from being tried
twice for the same offense, they should be given a fair and not overly
restrictive or technical reading” (People v Casey, 95 NY2d 354, 360;
see People v Konieczny, 2 NY3d 569, 575).

     An essential element of a prosecution for the crime of criminal
contempt in the second degree is that “the party to be held in
contempt must have had knowledge of the court’s order” (Matter of
McCormick v Axelrod, 59 NY2d 574, 583, mot to amend order granted 60
                                 -2-                           552
                                                         KA 10-00973

NY2d 652). Here, the information alleged that defendant had knowledge
of the temporary order of protection. In addition, the victim’s
supporting deposition that was attached to the information contained
the victim’s statement that defendant “d[id] not seem to care about
the order of protection” as he drove by the victim’s house two times
within a one-minute period of time. The “fair implication” of the
victim’s statement is that defendant had knowledge of the temporary
order of protection (Casey, 95 NY2d at 360). Generally, conclusory
allegations are insufficient to meet the statutory requirements, but
this is not a case in which additional facts were required to
establish the illegality of defendant’s conduct (cf. People v Dreyden,
15 NY3d 100; People v Dumas, 68 NY2d 729). While it may have been
preferable for the People to allege in the information the manner in
which defendant had been made aware of the temporary order of
protection, we conclude that the “core concerns [of Casey] were
clearly satisfied in this case” (People v Kalin, 12 NY3d 225, 230).

     Contrary to defendant’s further contention, Supreme Court did not
engage in premature deliberations in this nonjury trial when it denied
his motion for a trial order of dismissal (see People v Wilson, 243
AD2d 316, 317, lv denied 91 NY2d 1011, 1014). The court merely
addressed the alleged evidentiary deficiencies raised by defendant in
support of his motion.

     All concur except CARNI, J., who dissents and votes to reverse in
accordance with the following Memorandum: I respectfully disagree
with the conclusion of my colleagues that the misdemeanor information
charging defendant with criminal contempt in the second degree (Penal
Law § 215.50 [3]) contained sufficient evidentiary facts showing the
basis for the conclusion that defendant had knowledge of the temporary
order of protection. I therefore dissent.

     The information, insofar as it described the complaining
officer’s conclusion that defendant had knowledge of the temporary
order of protection, “failed to give any support or explanation
whatsoever for [that conclusion]” (People v Dreyden, 15 NY3d 100,
103). Indeed, the conclusory allegation of defendant’s knowledge is
contained within the preprinted language of the information form
utilized by the complaining officer, and that officer failed to
explain how he formed the belief that defendant had knowledge of the
temporary order of protection (see id. at 104; People v Dumas, 68 NY2d
729, 731). Inasmuch as the information contained no factual basis for
that conclusion, it was jurisdictionally defective (see Dreyden, 15
NY3d at 103). The victim’s statement that defendant allegedly “d[id]
not seem to care about the order of protection,” relied upon by the
majority, suffers from the same defect inasmuch as it also fails to
provide any factual basis to support the conclusion that defendant had
knowledge of the temporary order of protection. Further, the
majority’s reliance upon that statement confuses the factual
allegations with respect to defendant’s violation of the temporary
order of protection with the factual allegations required to support
the conclusion that he had prior knowledge thereof. Indeed, it is
plausible to conclude on this record that what the victim perceived as
a lack of care with respect to the temporary order of protection was
                                 -3-                           552
                                                         KA 10-00973

in fact a lack of knowledge thereof. In any event, the victim’s
subjective perception of the state of mind of defendant is
insufficient to form the basis for the requisite “facts of an
evidentiary character . . . demonstrating reasonable cause to believe
the defendant committed the crime charged” (id. at 102 [internal
quotation marks omitted]).

     I would therefore reverse the judgment and dismiss the
misdemeanor information.




Entered:   May 6, 2011                          Patricia L. Morgan
                                                Clerk of the Court
