People v. Roach

Carni, J.

(dissenting). 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 [2010]). 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 [1986]). 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 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. Present — Scudder, EJ., Centra, Garni, Sconiers and Green, JJ.