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1 CRIMINAL COURT OF THE CITY OF NEW YORK QUEENS COUNTY: PART AP ~- x THE PEOPLE OF THE STATE OF NEW YORK - against - Docket No QN DECISION AND ORDER JOHN SAMMUT Defendant x ELISA S. KOENDERMAN, J: The defendant, John Sammut, is charged with Criminal Contempt in the Second Degree, Penal Law ["PL"] (3) and Harassment in the Se~ond Degree, PL (1). The defendant has moved to dismiss the charges for facial insufficiency. Because the factual allegations are insufficient to establish that the defendant subjected the complainant to physical contact or attempted or threatened to do so, the charge of. Harassment in the Second Degree is dismissed. The charge of Criminal Contempt in the Second Degree however is upheld as facially sufficient. FACIAL SUFFICIENCY In order to be facially sufficient, an information must substantially conform to the formal requirements of Criminal Procedure Law ["CPL"] Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and Page 1 of 5

2 defendant's commission thereof (CPL [3] & [1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]). The complete failure to plead an element of a crime is a nonwaivable jurisdictional defect (see People v Casey, 95 NY2d 354,356 [2000]; Alejandro, 70 NY2d at ). Reasonable cause to believe that the defendant committed the offense charged exists when "evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL 70.10[2]). The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone (Alejandro, 70 NY2d at 138, quoting 1966 Report of Temp Commn on Revision of Penal Law and Crim Code, Staff Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101 [1 st Dept 2003]). Thus, "[t]he law does not require that the ~nformation contain the most precise words or phrases most clearly expressing the charge, only that the crime and the factual basis therefor be sufficiently alleged" (People v Syl/a, 7 Misc 3d 8, 10 [2d Dept 2005]). Where the factual allegations contained in an information "give an accused sufficient notice 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 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, [1952]; Page 2 of 5

3 People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, [1984]; People v Shea, 68 Misc 2d 271,272 [1971]; People v Scott, B Misc 3d 42B, 429 [2005]). Ultimately, "the court must consider whether both the' alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged" (People v Barona, 19 Misc 3d 1122[A], 1, 200B NY Slip Op 50B14[U] [Crim Ct, NY County 2008]). The misdemeanor complaint filed against the defendant alleges that the deponent police officer is informed by "the complainant, Victoria Doria-Sammut" that on or about March 4, 2011 at about 11: 15 a.m. inside of Roosevelt Avenue in Queens County, the defendant "followed [Ms. Doria-Sammut] into a restaurant and followed her as she left said restaurant" in violation of a duly served order of protection directing the defendant to stay away from Ms. Doria-Sammut. The supporting deposition verified by Ms. Doria Sammut states that the facts alleged in the accusatory instrument are true based upon her personal knowledge '''except that I did not state that he followed me out of the diner (the Stop Inn). I don't know if he did but [I] did not know why I saw him again a block from the dinner [sic] when I circled back to get my car." Under Penal Law (1), "a person is guilty of harassment in the second degree when, with intent to harass, annoy or alarm another person, he or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same." The information fails to contain any facts which support the inference that the Page 3 of 5

4 defendant either subjected the complainant to physical contact or attempted or threatened to do so. The defendant is merely alleged to have "followed" the complainant into a restaurant. Indeed, the additional allegation that the defendant "followed" the complainant outside of the restaurant was repudiated by the complainant in her verified supporting deposition. There, the complainant st~tes that she "did not know why" she "saw [the defendant] again a block away from the [diner]" when she "circled back to get her car." The information does ~ot allege that the defendant approached the complainant or attempted to communicate with her on either occasion. Without more, the defendant's alleged acts of following the complainant into a restaurant and being one block away when she left the restaurant cannot be construed reasonably to be a threat or an attempt to subject the complainant to physical contact. Accordingly, the charge of Harassment in the Second Degree is dismissed as facially insufficient. In contrast, the non-hearsay factual allegations of the information, when given a "fair and not overly restrictive or technical reading" and accepted as true, establish that the defendant intentionally disobeyed a court mandate by failing to stay away from the complainant (People v Casey, 95 NY2d 354, 360 [2000]; People v Kalin, 12 NY3d 225, 231 [2009]). Whether there is an innocent explanation for the defendant's conduct is an issue to be resolved at trial. The People are not required to disprove every conceivable defense at the pleading stage (see People v Deegan, 69 NY2d 976, 979 [1987]; Barona, 19 Misc 3d at 3). While they must still meet their burden of proof beyond a reasonable doubt. at trial, they have satisfied their much lower burden here. The charge of Criminal Contempt in the Second Degree therefore is sustained as facially sufficient. Page 4 of 5

5 " This constitutes the decision and order of the Court.. Dated: May 24,2011 Queens, New York Elisa S. Koenderman, JCC Page 5 of 5