SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

552 

KA 10-00973 

PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, 

V MEMORANDUM AND ORDER

RICHARD ROACH, DEFENDANT-APPELLANT. 

 

REDMOND & PARRINELLO, LLP, ROCHESTER (BRUCE F. FREEMAN OF COUNSEL),

FOR DEFENDANT-APPELLANT. 

MICHAEL C. GREEN, DISTRICT ATTORNEY, ROCHESTER (JOSEPH D. WALDORF OF

COUNSEL), FOR RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Monroe County (Alex

R. Renzi, J.), rendered February 25, 2010. The judgment convicted

defendant, upon a nonjury verdict, of criminal contempt in the second

degree. 

It is hereby ORDERED that the judgment so appealed from is

affirmed.

Memorandum: Defendant appeals from a judgment convicting him

following a nonjury trial of criminal contempt in the second degree

(Penal Law § 215.50 [3]), arising from his violation of a temporary

order of protection. We reject defendant’s contention that the

misdemeanor information upon which he was prosecuted was

jurisdictionally defective because it contained only a conclusory

allegation that he had knowledge of the temporary order of protection. 

“It is a fundamental and nonwaivable jurisdictional prerequisite that

an information state the crime with which the defendant is charged and

the particular facts constituting that crime . . . In order for an

information to be sufficient on its face, every element of the offense

charged and the defendant’s commission thereof must be alleged”

(People v Hall, 48 NY2d 927, 927, rearg denied 49 NY2d 918; see CPL

100.15 [3]; 100.40 [1] [c]). “So long as the factual allegations of

an information give an accused notice sufficient 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;

see People v Konieczny, 2 NY3d 569, 575). 

An essential element of a prosecution for the crime of criminal

contempt in the second degree is that “the party to be held in

contempt must have had knowledge of the court’s order” (Matter of

McCormick v Axelrod, 59 NY2d 574, 583, mot to amend order granted 60
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KA 10-00973 

NY2d 652). Here, the information alleged that defendant had knowledge

of the temporary order of protection. In addition, the victim’s

supporting deposition that was attached to the information contained

the victim’s statement that defendant “d[id] not seem to care about

the order of protection” as he drove by the victim’s house two times

within a one-minute period of time. The “fair implication” of the

victim’s statement is that defendant had knowledge of the temporary

order of protection (Casey, 95 NY2d at 360). Generally, conclusory

allegations are insufficient to meet the statutory requirements, but

this is not a case in which additional facts were required to

establish the illegality of defendant’s conduct (cf. People v Dreyden,

15 NY3d 100; People v Dumas, 68 NY2d 729). While it may have been

preferable for the People to allege in the information the manner in

which defendant had been made aware of the temporary order of

protection, we conclude that the “core concerns [of Casey] were

clearly satisfied in this case” (People v Kalin, 12 NY3d 225, 230).

Contrary to defendant’s further contention, Supreme Court did not

engage in premature deliberations in this nonjury trial when it denied

his motion for a trial order of dismissal (see People v Wilson, 243

AD2d 316, 317, lv denied 91 NY2d 1011, 1014). The court merely

addressed the alleged evidentiary deficiencies raised by defendant in

support of his motion. 

All concur except CARNI, J., who dissents and votes to reverse in

accordance with the following Memorandum: I respectfully disagree

with the conclusion of my colleagues that the misdemeanor information

charging defendant with criminal contempt in the second degree (Penal

Law § 215.50 [3]) contained sufficient evidentiary facts showing the

basis for the conclusion that defendant had knowledge of the temporary

order of protection. I therefore dissent.

The information, insofar as it described the complaining

officer’s conclusion that defendant had knowledge of the temporary

order of protection, “failed to give any support or explanation

whatsoever for [that conclusion]” (People v Dreyden, 15 NY3d 100,

103). Indeed, the conclusory allegation of defendant’s knowledge is

contained within the preprinted language of the information form

utilized by the complaining officer, and that officer failed to

explain how he formed the belief that defendant had knowledge of the

temporary order of protection (see id. at 104; People v Dumas, 68 NY2d

729, 731). Inasmuch as the information contained no factual basis for

that conclusion, it was jurisdictionally defective (see Dreyden, 15

NY3d at 103). The victim’s statement that defendant allegedly “d[id]

not seem to care about the order of protection,” relied upon by the

majority, suffers from the same defect inasmuch as it also fails to

provide any factual basis to support the conclusion that defendant had

knowledge of the temporary order of protection. Further, the

majority’s reliance upon that statement confuses the factual

allegations with respect to defendant’s violation of the temporary

order of protection with the factual allegations required to support

the conclusion that he had prior knowledge thereof. Indeed, it is

plausible to conclude on this record that what the victim perceived as

a lack of care with respect to the temporary order of protection was
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KA 10-00973 

in fact a lack of knowledge thereof. In any event, the victim’s

subjective perception of the state of mind of defendant is

insufficient to form the basis for the requisite “facts of an

evidentiary character . . . demonstrating reasonable cause to believe

the defendant committed the crime charged” (id. at 102 [internal

quotation marks omitted]). 

I would therefore reverse the judgment and dismiss the

misdemeanor information.

Entered: May 6, 2011 Patricia L. Morgan

Clerk of the Court