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Penal Law § 120.14(2)


A Kings Order of Protection Lawyer said that, defendant moves to dismiss counts 1 through 10 and 24 through 27 of the indictment on the ground that each count is duplicitous because each count charges multiple acts in violation of multiple court orders. In deciding the motion, the court has considered the moving papers, the People’s opposition, the court’s letter dated June 29, 1998, the Grand Jury minutes, and the indictment.

A Kings Criminal Lawyer said that, defendant has been indicted for various crimes involving different acts prohibited by “a” court order of protection. Most of the counts at issue in this motion allege a violation of a single order of protection effective from December 26, 1996 until March 12, 2000. In fact, the Grand Jury minutes reflect the issuance of three separate orders of protection.

The issue in this case is whether defendant’s motion to to dismiss counts 1 through 10 and 24 through 27 of the indictment on the ground that each count is duplicitous because each count charges multiple acts in violation of multiple court orders.

Each count of an indictment may only charge one offense (CPL 200.30[1] ). Where an offense is made out by the commission of one act, that act must be the only offense alleged in that count of the indictment. A count which charges more than one offense is duplicitous. Even if a count is not duplicitous on its face, it can be rendered duplicitous by Grand Jury testimony, a bill of particulars, or trial testimony indicating that the charge includes more than one act per count. The bar on duplicity furthers the notice function of the indictment, protects against double jeopardy violations, and insures the reliability of unanimous verdicts.

A crime which by its character may be committed by multiple acts is considered a continuous crime. A count alleging a continuous crimes may charge multiple acts spanning a period of time without violating the statutory or constitutional bar against duplicity. In determining whether a crime is a continuing offense the court examines the language of the penal statute and the legislative intent Determining whether or not a crime is continuous “is not an easy task”. Holding that a crime is continuous is sometimes to a defendant’s advantage and is sometimes to a defendant’s disadvantage

A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.

In deciding the issue of legislative intent the court has compared this statute with Penal Law § 120.14(2), Menacing in the Second Degree. The major difference between the two crimes is the phrase “engages in a course of conduct or repeatedly commits acts.” The inclusion of this phrase in Menacing in the Second Degree makes this crime a continuous one. Since Menacing in the Third Degree does not contain words indicating that it is a continuous crime, and the Legislature has created the continuous crime of Menacing in the Second Degree, the court finds that Menacing in the Third degree is a non-continuous crime.

Count 8 charges Criminal Contempt in the First Degree under Penal Law § 215.51(b)(vi). The elements of that Penal Law section are identical to the elements of Menacing in the Third Degree, except that an order of protection must also have been violated. Since the language in Penal Law § 215.51(b)(vi) and Penal Law § 120.15 is identical, the court is obligated to interpret the two sections in the same manner. Menacing in the Third Degree not being a continuous crime, Criminal Contempt in the First Degree under (b)(vi) is not a continuous crime.

The motion to dismiss counts 8 and 9 is granted. Those counts are dismissed. Before analyzing the particular criminal contempt counts involved in this motion, a general understanding of criminal contempt is necessary. Also, necessary is an understanding of the legislative intent in enacting Chapter 353 of the Laws of 1996.

Legislative Intent–Penal Law § 215.51(b) In contrast to the long history of Penal Law contempt ( § 215.50), section 215.51 of the Penal Law is a recent enactment which focuses solely on orders of protection. This statute was part of a series of statutes passed in order to prevent domestic violence.

Therefore, in determining the legislative intent regarding Penal Law § 215.51(b), this court has examined the explicit legislative findings in Chapter 222 of the Laws of 1994 Family Protection and Domestic violence Intervention Act of 1994, as well as the Legislature’s and Governor’s memoranda in support of or approving of Chapter 353 of the Laws of 1996, enacting the current Penal Law § 215.51(b).

In the 1994 findings the Legislature stated. We also know that this violence results in tremendous costs to our social services, legal, medical and criminal justice systems, as they are all confronted with its tragic aftermath. Domestic violence affects people from every race, religion. Ethnic, educational and socio-economic group. It is the single major cause of injury to women. More women are hurt from being beaten than are injured in auto accidents, muggings and rape combined.

The corrosive effect of domestic violence is far reaching. The batterer’s violence injures children both directly and indirectly. The legislature further finds and declares that domestic violence is criminal conduct occurring between members of the same family or household which warrants stronger intervention than is presently authorized under New York’s laws. The integrity of New York’s families from its youngest to its oldest members is undermined by a permissive or casual attitude towards villence between household members. The legislature further finds and declares that in circumstances where domestic violence continues in violation of lawful court orders, action under the criminal law must remain in place as a necessary and available option.

It is clear from these documents that when the Legislature enacted Penal Law 215.51(b). Criminal Contempt in the First Degree, the legislature was seeking not only to vindicate the right of the individual, the court, or society in the administration of justice, but also to stop a very real and present danger of domestic violence through acts committed between persons who are connected to each other either by blood, by marriage, acquaintance, or who resides in the same household. The major purpose was to prevent the great cost of domestic violence to society as a whole, and not only to the victim. With this legislative intent in mind, the court will view defendant’s and the prosecutor’s arguments about whether the crimes enumerated in Penal Law 215.51(b) are continuous.

With the exception of counts 24 and 25, the multiple acts alleged in the remaining counts span a time period covering several orders of protection, each issued at a different time and each covering different time periods, none of which overlap. Some of the counts cover orders of protection issued by different judges. The orders were all made during the pendency of a single criminal action, and relate to the same criminal action. As stated earlier (see section headed “Duplicity”), in determining whether it is appropriate to allege the violation of multiple court orders in a single count, the court examines the language of the statute and the legislative intent.

The General Construction Law provides, however, that “words in the singular number include the plural, and in the plural number include the singular” (General Construction Law § 35). This rule of construction “is applicable to every statute unless its general object, or the context of the language construed, or other provisions of law indicate that a different meaning or application was intended” (General Construction Law § 110).

Thus, the word “order” includes the plural “orders” (see, id.). The fact that the statute uses the singular word “order” in Penal Law § 215.51(b) does not necessarily mean that the Legislature intended that the crime must be committed during the pendency of a single order of protection.

This legislative intent is also indicated by the use of the word “or” at the end of the list of proposed prohibited activities in the Legislature’s and Governor’s memoranda. The legislative statement must be read to say that there will be a violation of law if a person either “brandishes a weapon at” or “threatens” a person for whose protection the order of protection was issued.

The court realizes that no matter how the statute is interpreted there will be superfluous or useless words. In addition, regardless of the court’s conclusion, some of the words will be meaningless. Indeed, the statute contains unnecessary verbiage, such as the phrase “fear of physical injury, serious physical injury or death”. A person who places a victim in fear of “serious physical injury” or “death” by definition places such person in fear of “physical injury”. Thus, the words “serious physical injury or death” are superfluous and useless.

In sum given the express language of the memoranda the court finds that “threat or threats” refers to threats from any source even if not by the enumerated weapons.

Accordingly, the court held that the motion to dismiss counts 6 and 24 is denied.

If you are involved in a similar scenario, seek the help of Kings Order of Protection King Globe Lawyer. Call us at Stephen Bilkis and Associates.

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