Violating order of protection as contempt
By: Gary Muldoon
Muldoon, Getz & Reston
Rochester, New York
Violating an order of protection is punishable as criminal contempt, Penal Law §§ 215.50–52. But how is an order of protection to be interpreted? If the order of protection is somehow invalid or defective, can it still form the basis of a contempt charge?
To establish a violation, there must be a lawful order clearly expressing an unequivocal mandate. Any ambiguity must be resolved in the defendant’s favor. For example, an order that provided for “no contact” with the victim was unclear, as it could be interpreted as merely prohibiting any physical or in-person contact, People v. Roblee, 70 AD3d 225 (3d Dept 2009).
On all fours
An order of protection may cover a crime victim and members of the victim’s family or household, as well designated witnesses, CPL 530.13(1). An order of protection in favor of someone who is not a proper covered party cannot support a prosecution for contempt.
In People v. Panetta, 41 Misc 3d 614, 620 (City Ct 2013), the defendant had been charged with animal cruelty. Temporary orders of protection were issued in favor of members of various animal-rescue groups. But there was no indication that the members of these groups were victims or witnesses to the underlying charges.
The trial judge noted that the orders “improperly covered a constantly changing roster of animal-aid workers apparently having no involvement with the underlying charges.” Because the temporary order of protection was therefore not a lawful mandate, the contempt charge was dismissed.
Yet defects in an order of protection are not evaluated in the same way as are defects in an accusatory instrument. Where an order of protection barred the defendant from his wife’s place of employment but did not specify that address, this did not invalidate the order of protection, or the contempt charge: “a challenge to the validity of the underlying order of protection does not assert a nonwaivable jurisdictional defect.” The defendant failed to raise the challenge at the trial court level, People v. Ellison, 106 AD3d 419, 420 (1st Dept 2013).
© 2013 by Gary Muldoon