THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. MICHAEL WIGHTMAN DEFENDANT APPELLANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed and the matter is remitted to Steuben County Court for proceedings pursuant to CPL 460.50 (5).

Memorandum: Defendant appeals from a judgment convicting him upon a guilty plea of criminal contempt in the first degree (Penal Law § 215.51 [c]), a charge that arose from defendant having lunch at a pizzeria with his mother, on whose behalf there was a stay-away order of protection. Because defendant had previously been convicted of criminal contempt in the second degree, a class A misdemeanor, he was charged with criminal contempt in the first degree, a class E felony, under Penal Law § 215.51 (c).

Following arraignment in local court, defendant agreed to waive indictment (see CPL 195.10) and plead guilty to a superior court information (SCI) charging him with criminal contempt in the first degree. In return for defendant's plea, County Court promised to adjourn sentencing and place him on interim probation for a year, with a condition that defendant successfully complete the program in drug treatment court. If defendant satisfied the conditions of interim probation, the court explained during the plea colloquy, he would be allowed to withdraw his plea to the felony and plead guilty to criminal contempt in the second degree, a misdemeanor, for which he would be sentenced to probation for three years. The court advised defendant that, should he not successfully complete interim probation, he could be sentenced to prison for up to two to four years. As part of his plea agreement, defendant waived his right to appeal, and the validity of that waiver is not challenged on appeal.

Although defendant actively participated in drug treatment court for approximately nine months, he was eventually discharged from the program for noncompliance. As a result, the court withdrew its promise of probation and sentenced defendant as a second felony offender to an indeterminate term of imprisonment of two to four years, the maximum sentence permitted by law.

Defendant contends, and the People incorrectly concede, that the SCI charging him with criminal contempt in the first degree is jurisdictionally defective because it fails to allege that the predicate conviction, elevating the contempt charge from a misdemeanor to a felony, was based on a violation of a stay-away order of protection, as opposed to a no-offensive-contact order of protection, as required by Penal Law § 215.51 (c). To the extent that defendant's contention may implicate the jurisdiction of the court, it may be raised for the first time on appeal (see People v Saenger, 39 NY3d 433, 438 [2023], citing People v Iannone, 45 NY2d 589, 600-601 [1978]) and survives his valid waiver of the right to appeal (see People v Lugg, 108 AD3d 1074, 1074 [4th Dept 2013]; People v Finch, 96 AD3d 1485, 1486 [4th Dept 2012]).

An SCI is jurisdictionally defective if it “does not effectively charge the defendant with the commission of a particular crime – for instance, if it fails to allege that the defendant committed acts constituting every material element of the crime charged” (People v Hooker, 230 AD3d 1465, 1467 [3d Dept 2024] [internal quotation marks omitted]; see Iannone, 45 NY2d at 600; People v Lesson, 241 AD3d 1051, 1053 [3d Dept 2025], lv denied 44 NY3d 1028 [2025]). As noted, the SCI charged defendant with criminal contempt in the first degree under Penal Law § 215.51 (c). A person is guilty of that felony when they commit the misdemeanor offense of criminal contempt in the second degree (§ 215.50 [3]) by violating a stay-away order of protection after having previously been convicted of “aggravated criminal contempt or criminal contempt in the first or second degree for violating an order of protection as described herein within the preceding five years” (§ 215.51 [c] [emphasis added]). Thus, the prior contempt conviction must be based on a violation of a stay-away order of protection (see People v Barrett, 188 AD3d 1736, 1737 [4th Dept 2020]; People v Taylor, 142 AD3d 465, 465-466 [1st Dept 2016], lv denied 28 NY3d 1151 [2017]; see generally Saenger, 39 NY3d at 441-442).

Here, the SCI alleged, inter alia, that defendant committed criminal contempt in the second degree by violating a stay-away order of protection on the date and time in question, and that he had been duly served with the order of protection or had actual knowledge of it because he was in court when it was issued. Although the SCI does not allege that defendant had previously been convicted of aggravated criminal contempt or criminal contempt in the first or second degrees within the preceding five years, CPL 200.60 (1) precluded the People from including that allegation in the SCI.

CPL 200.60 (1) reads: “When the fact that the defendant has been previously convicted of an offense raises an offense of lower grade to one of higher grade and thereby becomes an element of the latter, an indictment for such higher offense may not allege such previous conviction.” Pursuant to CPL 200.15, an SCI has “the same force and effect as an indictment and all procedures and provisions of law applicable to indictments are also applicable to superior court informations, except where otherwise expressly provided.”

In other words, where, as here, an SCI charges a crime that is elevated in degree based on a prior conviction, the prior conviction must be alleged in a special information and not the SCI. That is what the People did here. In accordance with CPL 200.60 (2), the SCI charging criminal contempt in the first degree was accompanied by a special information alleging that defendant was convicted of criminal contempt in the second degree on March 16, 2022, approximately 17 months before his arrest on the instant charge. Thus, the SCI alleged all elements of criminal contempt in the first degree except that defendant had been convicted in the preceding five years of aggravated or criminal contempt for violating a stay-away order of protection, an allegation that must be made outside the SCI. We therefore conclude that there is no jurisdictional defect in the SCI.

Although the special information failed to allege that the predicate conviction involved the violation of a stay-away order of protection, defendant's challenge is to the validity of the SCI, not the special information. Furthermore, challenges to the sufficiency of a special information must be preserved (see People v Schuh, 4 AD3d 751, 752 [4th Dept 2004], lv denied 2 NY3d 806 [2004]; People v McDonald, 295 AD2d 756, 757 [3d Dept 2002], lv denied 98 NY2d 711 [2002]), and defendant failed to object to the special information below. Regardless, a defect in the special information or even the failure to file a special information “is deemed waived by [a] defendant's knowing and voluntary guilty plea” and does not render an indictment or SCI jurisdictionally invalid (People v Boyd, 206 AD3d 1350, 1352 [3d Dept 2022], lv denied 38 NY3d 1149 [2022] [internal quotation marks omitted]; see People v Yunga, 122 AD3d 951, 952 [2d Dept 2014], lv denied 25 NY3d 993 [2015]; People v Taylor, 82 AD3d 1291, 1291-1292 [3d Dept 2011], lv denied 16 NY3d 900 [2011]; People v Khan, 291 AD2d 898, 899 [4th Dept 2002]).

To the extent that defendant contends that he was deprived of effective assistance of counsel because his attorney failed to challenge the sufficiency of the special information and allowed him to plead guilty to a felony when he had actually committed only a misdemeanor, we note that it is unclear from the record whether defendant's predicate conviction was for violating a stay-away order of protection as opposed to a no-offensive-contact order of protection. Because it cannot be determined on this record whether defendant's attorney was ineffective in failing to raise the issue below, defendant's ineffective assistance of counsel claim must be raised, if at all, by way of a motion to vacate the judgment pursuant to CPL 440.10 (see People v Gravino, 62 AD3d 1259, 1259 [4th Dept 2009], affd 14 NY3d 546 [2010]; People v Kuhn, 242 AD3d 1610, 1610 [4th Dept 2025]).

We have reviewed defendant's remaining contentions and conclude that they are either precluded by his valid waiver of the right to appeal or do not warrant reversal or modification of the judgment.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court