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People v. Romano
Legal Aid Society, Kew Gardens (Michele Maxian and Garrett Austin of counsel), for defendant. Richard A. Brown, District Attorney of Queens County, Kew Gardens (Kim Petersen of counsel), for plaintiff. OPINION OF THE COURT
DEBORAH STEVENS MODICA, J. The defendant is charged in an information with attempted criminal contempt in the second degree (Penal Law §§ 110.00, 215.50 [3]) and aggravated harassment (Penal Law § 240.30 [1]) for conduct which occurred on October 31, 1999. It example, that rule must yield to clear legislative intent to the contrary, as evidenced by the affirmative defenses contained in Penal Law § 125.25 (1) (a) and (3) and § 160.15 (4), which, it should be noted, are denominated as exceptions, but are not considered to be elements of the crimes that must be pleaded and proven by the People. As far as this case is concerned, a review of the legislative history underlying the inclusion of the labor language into the Penal Law demonstrates that it was not intended to be an element of the crime. The crime of criminal contempt was originally created by the Legislature with the enactment of the Penal Code in 1881. (See L 1881, chs 676, 680, § 143.) In 1909, the Penal Code was replaced by the Penal Law of 1909 and the crime of criminal contempt was moved, verbatim, to Penal Law of 1909 § 600 (L 1909, ch 88). This section read, in pertinent part, as follows:
"A person who commits a contempt of court, of * * * the following, is guilty of a misdemeanor * * *
"(4) Wilful disobedience to the lawful process or other mandate of a court."Subdivision (4) continued to read this way until 1935, when it was amended by the New York Legislature and the exception for labor disputes was inserted therein. This amendment was in conjunction with the passage of the Little Norris-LaGuardia Act (Civ Prac Act § 876-a, L 1935, ch 477, § 1), "named for its Federal prototype," the Norris-LaGuardia Act, enacted by Congress in 1932 (47 US Stat 70; 29 USC §§ 101-115; see Rankin v Shanker, 23 NY2d 111 [1968]). The Federal and State legislations were aimed at the growing labor unrest existing in this country at that time and were specifically designed to curtail the powers of courts to issue either temporary or permanent injunctions in nonviolent labor disputes, and, thus, to strengthen the powers of unions to organize and bargain collectively. (See Rankin v Shanker, supra ; Busch Jewelry Co. v United Retail Empls. Union, 281 NY 150 [1939]; see also Boys Mkts. v Retail Clerks Union, 398 US 235, 250-253 [1970]; Note, International Union, United Mine Workers v Bagwell: A Paradigm Shift in the Distinction Between Civil and Criminal Contempt, 81 Cornell L Rev 181, 191-192 [1995].) In furtherance of that legislative objective, the New York State Legislature amended Penal Law of 1909 § 600 and added Vehicle and Traffic Law § 1194 portion of Vehicle and Traffic Law § 1992 (2) is not an element of that crime. (See People v Thomas, supra .) Although the Court in Thomas did not articulate its reasons for its conclusion, what is apparent is that the Court was applying a commonsense approach to statutory interpretation, by concluding that the details of Vehicle and Traffic Law § 1194 are best left for the trial court to decide, not the jury. For all the reasons outlined above and, in light of Thomas, the Court concludes that Rodriguez does not dictate a contrary result. Nevertheless, this Court is constrained by the decision in Kirkham and must conclude that the labor language is an element of the crime. Viewing the labor language as an element of Penal Law § 215.50, the Court finds that the count of the accusatory instrument charging criminal contempt in the second degree is facially insufficient. In so finding, the Court begins its analysis with CPL 100.40 (1). This section, in part, provides that: "[a]n information, or a count thereof, is sufficient on its face when: "(a) It substantially conforms to the requirements prescribed in section 100.15;[
] and "(b) The allegations of the factual part of the information, together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the defendant committed the offense charged in the accusatory part of the information; and "(c) Non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof." Here, the District Attorney failed to comply with the requirement of CPL 100.40 (1) (c) in that the factual part of the information failed to establish every element of the crime of criminal contempt in the second degree and the defendant's commission thereof. (See People v Casey, 95 NY2d 354.) Although the defendant has been notified that he violated Penal Law § 215.50 (3), the factual portion fails to present a prima facie case that the defendant's contemptuous conduct is not a case involving or growing out of a labor dispute, as defined by the Judiciary Law. Except for citing the specific statutory provision, the accusatory instrument is devoid of any factual allegations indicating that this case involved or did not involve a labor dispute. Here, the accusatory instrument informs the defendant that a Family Court Judge issued an order for him to refrain from threats of physical violence against the complainant, that the defendant was served with that order in court with the complainant present as a witness, and that the defendant intentionally disobeyed that order by telephoning the complainant and threatening to kill her. Certainly, factual allegations so detailed may allow for the inference of one or all the elements of the crime. (See e.g. People v Combs, 38 NY2d 868 [1976].) Here, however, aside from the fact that it was a Family Court Judge who issued the order of protection, there is no way to know from the face of this complaint whether this case was or was not the result of a labor dispute. Accordingly, the accusatory instrument is defective on its face. Nevertheless, dismissal of the criminal contempt count is inappropriate at this time. CPL 170.35 (1) (a) provides that an information or a count that is insufficient on its face, "may not be dismissed as defective, but must instead be amended, where the defect or irregularity, is of a kind that may be cured by amendment and where the people move to so amend." The Court concludes that the defect here is curable. Accordingly, the decision on the defendant's motion to dismiss the charge of criminal contempt in the second degree is stayed for 15 days. If the District Attorney moves to amend the accusatory within 15 days of receipt of this order or files a superseding information, then the defendant's application for dismissal is denied. If the District Attorney fails to move to amend or supersede the information within 15 days, then the Court's decision granting dismissal will become effective at that time. Finally, the Court finds it necessary to respond to the District Attorney's answering papers, which inadequately fail to address the merits of the defendant's motion and, instead, attack it as being an untimely motion to reargue. The District Attorney's failure to plead even one of the elements of a crime is a nonwaivable jurisdictional defect, which can be raised at any time. (See People v Casey, supra ; see also People v Miles, 64 NY2d 731 [1984].) [1] Civil Practice Act § 876-a was repealed and replaced by the Legislature in 1962 with Labor Law § 807. (See L 1962, ch 310, § 258.) [2] CPL 100.15 sets forth the form and content for informations, misdemeanor complaints and felony complaints. Subdivision (1) mandates that "[e]ach instrument must contain an accusatory part and a factual part." Subdivision (2) provides that the "accusatory part of each such instrument must designate the offense or offenses charged." Subdivision (3) requires, in part, that "[t]he factual part of such instrument must contain a statement of the complainant alleging facts of an evidentiary character supporting or tending to support the charges."
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