People v. Perez

JOSEPH C. CALABRESE, J. This decision holds for the first time that a New York State court has jurisdiction over an alleged violation of an order of protection where such protective order was issued by a court of this state and served on a defendant in a foreign state by means of a facsimile (fax) copy of that order. Defendant, Evelyn Perez, is charged with criminal contempt in the first degree (E felony) under Penal Law § 215.51 (b) (ii) and stalking in the third degree (A misdemeanor) under Penal Law § 120.50 (3). These crimes are alleged to have occurred on or about February 18, 2001 in Nassau County, State of New York. Pursuant to a stipulation in lieu of motions entered into by the parties on May 16, 2001 and "Approved and So Ordered" by this court on that date, the Grand Jury minutes underlying the instant indictment were reviewed by this court. Those minutes indicate that complainant herein is the girlfriend of defendant's ex-boyfriend. On February 6, 2001, the District Court of Suffolk County, State of New York, issued an order of protection against defendant and in favor of complainant. Defendant was not present in court on the date of issuance and was apparently not otherwise served with a copy of that order in the State of New York. On February 9, 2001, complainant and her boyfriend went skiing in the Town of Brandon, State of Vermont. On February 10, complainant contacted and then met with Brandon Police Department Corporal James Bixby concerning defendant whom she had seen in Brandon. After speaking with complainant, Corporal Bixby stopped defendant's car and gave her a fax copy of the Suffolk County District Court's order of protection. Defendant signed a receipt for the order of protection and acknowledged receiving such in her testimony before the Grand Jury. The Grand Jury testimony further indicates that on Sunday, February 18, 2001, at approximately 11:40 A.M. complainant left home in Port Jefferson Station, Suffolk County, New York, As a second aspect of this inquiry, the court requested legal memoranda covering the issue of whether defendant's acts amounted to "engaging in a course of conduct" as defined in Penal Law § 120.50 (3) (stalking in the third degree) and Penal Law § 215.51 (b) (ii) (contempt in the first degree) and/or whether defendant's actions amounted to "repeatedly following such person" or "repeatedly committing acts over a period of time" as defined in Penal Law § 215.51 (b) (ii) (contempt in the first degree). There is no statutory requirement that a "course of conduct" be of any particular type or duration (see, People v Payton, 161 Misc 2d 170). In this regard, Penal Law § 5.00 provides that the provisions of the Penal Law are not to be strictly construed but rather must be construed according to the fair import of their terms in order to promote justice and effect the objects of the law (People v Hasenflue, 169 Misc 2d 766). Thus, the crimes alleged herein can be sustained if there is prima facie proof of a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose (People v Tralli, 88 Misc 2d 117; People v Murray, 167 Misc 2d 857 [a defendant's conduct which lasted only eight minutes satisfied the requirements of course of conduct and continuity of purpose]). In the instant case, defendant's alleged conduct included following complainant through various roads from Suffolk County, New York, into Nassau County, New York, and once in Nassau County continuing to follow complainant's car and passing it three times after she had stopped the car in the gas station. The totality of defendant's behavior in Nassau County establishes, prima facie, that she "engaged" in the requisite "course of conduct" with a continuity of purpose (People v Payton, supra) and that these events placed complainant in a state of fear. Also noted is that these events establish, prima facie, the "repeatedly" requirement of Penal Law § 215.01 (b) (ii) (contempt in the first degree). The evidence before the Grand Jury was legally sufficient to support each of the crimes charged in the indictment (CPL 210.30); its proceedings were not otherwise defective; proper legal advice and adequate instructions were given by the District Attorney (CPL 210.35 [5]; 190.25 [6]); and the indictment conforms to the requirements of CPL 200.50. Accordingly, defendant's application to dismiss or reduce the charges alleged in the indictment is, in all respects, denied.