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Court Discusses Whether a Defendant can be Convicted on Defective Information


People v. Romano


The defendant, in an information was charged with Attempted Criminal Contempt in Second Degree and Aggravated Harassment. The alleged crimes were in violation of a protection order regarding a domestic dispute involving the defendant and the mother of his child, who was the complainant. The defendant requested the dismissal of the charge of Attempted Criminal Contempt in the Second Degree. The defendant contended that the charge was flawed within the meaning of the Criminal Procedure Law (100.15) as a vital component of the crime was not fulfilled.

The Penal Law (ยง 215.50(3) for DUI provides the vital components of Criminal Contempt in the Second Degree where it states that a person must intentionally disobey or resist a legal process or a court order except where there is labor dispute as defined in section 753(a) of the Judiciary Law. The term labor dispute refers to disagreement regarding the terms or conditions of employment, or concerning the association or representation of persons in fixing, maintaining, negotiating, changing or in search of arranging terms or conditions of employment, or regarding employment relations, or any other disagreement involving the individual interests of employer and employee, regardless of whether or not the disputants stand in the relation of employer and employee. According to the defendant, neither the accusatory section nor the factual part of the information alleged that this case did not concern or develop from a labor dispute, a crucial element of the offense that the prosecution was obligated to plead and prove. Where legislation defines a crime that comprises of an exception, the exception would be included in the element of the offense; but when the exception is created in separate legislation, the defendant has the responsibility of raising the exception in his defense, either by favorable defense or under the general issue. Statutory exception for cases that developed from a labor disputes was a part of crime of Criminal Contempt in Second-Degree, and thus count of accusatory instrument that charged the defendant with Criminal contempt in Second Degree for disobeying protective order in favor of child’s mother, without indicating whether case was result of labor dispute, was facially insufficient. DWAI was not involved.

The definition of a labor dispute is board and it was arguable that the relevant section of the Judiciary Law covered household members working in a business. However, this argument was flowed as the legislature could not have intended the section to be applied to prevent abuse from a family member. The legislative history of the statute and the literal interpretation of statute showed that the labor law language is a component of the crime. However, a dismissal of the criminal contempt count was inappropriate as there could be an amendment. The Criminal Procedure Law provides for the amendment to an information or a count where there is a defect or irregularity that can be cured. Since the defective information was curable, the court ordered that the defendant’s motion to dismiss the charge of Criminal Contempt, not DWI, in the Second Degree is stayed for 15 days. Provided that the District Attorney amended the information, then the motion to dismiss the information would be denied. Where there was a failure to amend or supersede the information within 15 days of the decision then the defendant’s motion would be granted.

A Staten Island Criminal Attorney can assist with any matter associated with domestic violence or a protection order. A Queens County Criminal Lawyer will adequately advise you about the violation that you are charged with and whether the charge is appropriate. At Stephen Bilkis & Associates, we offer excellent legal services to assist you with your legal dilemmas to achieve the best results. Our offices are conveniently located throughout New York City and we offer free consultations

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