Legal Aid Society, New York City (
Donna Klett of counsel), for defendant.
Robert M. Morgenthau, District Attorney, New York City (
Justin Paul Caulfield of counsel), for plaintiff.
OPINION OF THE COURT
ROBERT M. STOLZ, J. This case presents the question of whether an order of protection, purportedly issued pursuant to CPL 530.13, may lawfully pretrial release, is a valid mandate, intentional violation of which would constitute contempt.[5] The People's alternative position that there existed a lawful mandate of the court requiring the defendant to stay away from the Black Star Bar based on the minutes of the court proceedings on August 21, 2003 is untenable. The relevant minutes reflect that the court advised the defendant that it was extending the order of protection, which directed the defendant to stay away from the Black Star Bar. There was no independent oral directive from the court directing the defendant to stay away from those premises. Moreover, even if there had been such an oral directive, the defendant was not charged with violating any such oral directive. To the contrary, the original information quite clearly charged the defendant with violating the order of protection issued on August 21, 2003 in favor of the Black Star Bar. Although the prosecutor's information, filed immediately before trial, is broadly drafted, it is restricted to the factual allegations of the underlying accusatory instrument. (CPL 100.50 [2].) That instrument refers only to the written order of protection issued August 21, 2003. In sum, because the order of protection in this case exceeded the scope of CPL 530.13, it was invalid. Since the People have failed to establish, prima facie, that the defendant attempted to violate a lawful mandate of the court, the defendant's motion for a trial order of dismissal must be granted. [1] Defendant also was charged with resisting arrest (Penal Law § 205.30), trespass (Penal Law § 140.05) and harassment in the second degree (Penal Law § 240.26 [1]). These charges were dismissed on the motion of the People. [2] The statute also provides for orders in favor of specifically named members of the family or household of such victims or designated witnesses. [3] While CPL 530.13 requires a victim or witness to be identified, this opinion should not be read to require that they be identified by name, when another description would provide sufficient notice of the protected party. Indeed, given the purpose of orders of protection, it sometimes may be both permissible and prudent to issue an order which preserves the anonymity of a protected party whose identity is not already known to the defendant. [4] This is not to suggest, however, that the court in Haynesworth was necessarily correct in sustaining the defendant's contempt conviction therein. In light of the Haynesworth court's reasoning that the defendant in that case was bound by his sentence of a conditional discharge despite the fact that those conditions were recorded in an order of protection, it seems that the defendant in that case would have been more appropriately chargeable with violating the terms of his conditional discharge. Whether such a violation can also constitute a contempt is not before me. However, at least one court has ruled that a violation of a conditional discharge cannot constitute the basis for a charge of criminal contempt. (See People v Stefanello, 195 Misc 2d 262 [Ontario County Ct 2003], lv denied 100 NY2d 624 [2003].) [5] The case before me does not present the issue of whether a defendant may be directed to stay away from a particular place as a general condition of pretrial release or bail pursuant to CPL 510.30, a violation of which would constitute a basis for revocation of recognizance or bail pursuant to CPL 530.60.