PEOPLE v. KIRKHAM (2000)

Appeal from an order of the County Court of Madison County (Di Stephano, J.), entered September 2, 1999, which granted defendant's motion to dismiss count one of the indictment.

Defendant was charged in a four-count indictment with criminal contempt in the first degree, resisting arrest and two counts of disorderly conduct stemming from an incident wherein he allegedly violated an order of protection.   Defendant subsequently moved to, inter alia, dismiss the indictment as legally insufficient.   County Court granted the motion to the extent of dismissing count one of the indictment, which charged defendant with criminal contempt in the first degree, due to the failure to allege that the statutory exception to that crime was inapplicable.   The People appeal.

 We affirm.   It is firmly established that an indictment must contain a factual allegation of every element of the crime charged (see, CPL 200.50 [7] ), including an allegation that any exception set forth within the statute defining the offense is inapplicable (see, People v. Kohut, 30 N.Y.2d 183, 187, 331 N.Y.S.2d 416, 282 N.E.2d 312;  People v. Taylor, 256 A.D.2d 647, 648, 683 N.Y.S.2d 591).   Here, count one of the indictment charged defendant with violating Penal Law § 215.51(c), which provides in relevant part that “[a] person is guilty of criminal contempt in the first degree when * * * he or she commits the crime of criminal contempt in the second degree as defined in [Penal Law § 215.50] * * * by violating that part of a duly served order of protection”.   Penal Law § 215.50, as relevant here, defines criminal contempt in the second degree as “[i]ntentional disobedience or resistence to lawful process or other mandate of a court except in cases involving or growing out of labor disputes as defined by [Judiciary Law § 753-a (2) ] ” (Penal Law § 215.50[4] [emphasis supplied] ).

 Because a violation of Penal Law § 215.50 is a material element of criminal contempt in the first degree and is incorporated by reference in the statute defining that crime, the exception set forth therein is necessarily “contained within the statute defining the offense” of criminal contempt in the first degree (People v. First Meridian Planning Corp., 201 A.D.2d 145, 154, 614 N.Y.S.2d 811, affd. 86 N.Y.2d 608, 635 N.Y.S.2d 144, 658 N.E.2d 1017).   Moreover, the statutory language must be characterized as an exception rather than a proviso because it excludes certain matters from its scope absolutely (see, id., at 154, 614 N.Y.S.2d 811).   Inasmuch as count one of the indictment failed to allege the inapplicability of the labor dispute exception, we conclude that County Court properly dismissed the count as defective (see, People v. Bingham, 263 A.D.2d 611, 692 N.Y.S.2d 823, lv. denied 93 N.Y.2d 1014, 697 N.Y.S.2d 573, 719 N.E.2d 934;  People v. Best, 132 A.D.2d 773, 774-775, 517 N.Y.S.2d 582).

ORDERED that the order is affirmed.

MUGGLIN, J.

SPAIN, J.P., CARPINELLO, ROSE and LAHTINEN, JJ., concur.