PEOPLE v. GRIFFIN (2005)

 Generally, for an accusatory instrument charging Criminal Contempt in the Second Degree based on a violation of an Order of Protection to constitute a sufficient information it must include a certified copy of the order in question as well as proof of the defendant's awareness of the existence of order at the time of the alleged violation.  People v. Peluso,192 Misc.2d 33, 745 N.Y.S.2d 845;  People v. Bendter, 184 Misc.2d 374, 709 N.Y.S.2d 333.   The instant motion presents the novel question of the level of corroboration required when a criminal contempt charge is based upon the defendant's alleged disobedience of a subpoena.   Because CPL § 610.40 sets forth that a subpoena must be served in the manner provided by the CPLR, we find that when the disobedience of a subpoena serves as the predicate for a charge of Criminal Contempt in the Second Degree, a sufficient information must include both a copy of the subpoena and a corroborating affidavit which comports with the “Proof of Service” requirements set forth in CPLR § 306.

The defendant Kimberly Griffin was arrested and charged with PL § 215.50(3) [Criminal Contempt in the Second Degree] arising out of allegations that she intentionally disobeyed a “so ordered” subpoena to appear in New York County Supreme Court.   The defendant argues that a copy the underlying subpoena is an essential element of the offense and is necessary to convert the complaint.   Since the People did not file a copy of the subpoena until after they filed a Certificate of Readiness for trial, the defendant contends that their purported readiness was predicated upon a jurisdictionally defective accusatory instrument and is therefore illusory.   The People, in turn, argue that a copy of the subpoena is not required since the level corroboration needed to support a charge of criminal contempt that is based upon a violation of an Order of Protection, does not apply to a contempt charge predicated upon a disobedience of a subpoena.   This court disagrees and notes that the People have not cited any case law in support of their position.

The motion arises from the following procedural history.   Pursuant to her arrest, the defendant was arraigned on March 12, 2005, at which time the People filed a complaint charging her with one count of PL § 215.50(3) [Criminal Contempt in the Second Degree, a class A misdemeanor].   In pertinent part, that complaint read as follows:  Deponent (Detective John Garvey) states that deponent is informed by Assistant District Attorney Kavita Bovell of the New York County District Attorney's Office that informant served the defendant with a SO Ordered subpoena in Part 44 on February 22, 2005 to testify in the case of People v. Lavan Rambert.   Deponent is further informed by informant that said So Ordered subpoena was served on defendant in the presence of Judge Marcy Kahn and that said subpoena required defendant to appear in Part 44 on February 23, 2005.   Deponent is further informed by informant that defendant never appeared in Part 44 on February 23, 2005.   The People never filed any supporting depositions in relation to this initial complaint.

On May 27, 2005 the People filed a superceding complaint and a Certificate of Readiness for trial.   The allegations in the superceding complaint read as follows:

Deponent (Police Officer Vincent Saporitio) states that he observed the defendant served with a SO Ordered Subpoena in Part 44 on February 22, 2005 to testify in the case of People v. Lavan Rambert, Ind. No 4619/04.   Deponent further states that said SO Ordered subpoena was served on defendant in the presence of Judge Marcy Kahn and that said subpoena required defendant to appear in Part 44 on February 23, 2005.   Deponent further states that defendant never appeared in Part 44 on February 23, 2005.   On June 20, 2005, the People finally served and filed a copy of the So Ordered subpoena.   To date, they have not served a supporting deposition from the nameless individual who the deponent observed serve the subpoena.

 Neither these accusatory instruments constitute a facially sufficient information.   For an information to be sufficient on its face it contain non-hearsay allegations of the factual part and/or supporting depositions which establish every element of the crimes charged see CPL § 100.40(1)(c).  PL § 215.50(3) states that a person is guilty of Criminal Contempt in the Second Degree when he engages in intentional disobedience or resistance to the lawful process or other mandate of a court ¹ .  The vast majority of reported case law addressing the sufficiency of an information charging Criminal Contempt in the Second Degree are based upon a violation of an order of protection.  “Generally, for an accusatory instrument charging criminal contempt in the second degree to constitute a sufficient information it must contain:  (1) non-hearsay sworn factual allegations establishing, if true, that the defendant intentionally disobeyed the lawful mandate of the court, (2) a certified copy of the order in question, (3) proof of defendant's awareness of the order at the time that it was allegedly violated, and (4) factual allegations as to the manner it was disobeyed.”  People v. Peluso, 192 Misc.2d 33, 745 N.Y.S.2d 845, citing People v. Bendter, 184 Misc.2d 374, 709 N.Y.S.2d 333.   In People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88, 740 N.E.2d 233, while stating though it is better practice to file a certified copy of the order of protection, the Court of Appeals recognized that the non-hearsay requirement could be satisfied by an allegation admissible under a hearsay exception.   See too People v. Perez, 195 Misc.2d 171, 757 N.Y.S.2d 711 (Crim. Ct., New York Co.2003)

 In the instant case the lawful mandate that defendant is alleged to have disobeyed is a subpoena ordering her to appear at as a witness at a trial.   A subpoena issued by a district attorney is a mandate of the court, and disobedience thereto may be punished as for a criminal contempt.  People ex rel Drake v. Andrews, 197 N.Y. 53, 90 N.E. 347 (1909);  People v. Natal, 75 N.Y.2d 379, 553 N.Y.S.2d 650, 553 N.E.2d 239 (1990).  Article 610 of the CPL governs the procedures for securing attendance of witnesses by subpoena.  CPL § 610.40 sets forth that a subpoena must be served in the manner provided in the CPLR.  CPLR § 2303(a) sets forth that a subpoena requiring attendance shall be served in the same manner as a summons.   When a subpoena is personally served upon a defendant, service is not complete until a “Proof of Service” is filed.²  In this case, both accusatory instruments allege the subpoena was personally served on the defendant pursuant to subdivision one of CPLR § 308.   A proper affidavit of a process server attesting to personal delivery upon a defendant constitutes prima facie evidence of proper service.  NYCTL 1998-1 Trust v. Rabinowitz, 7 A.D.3d 459, 777 N.Y.S.2d 483 (N.Y.A.D. 1 Dept., 2004).   CPLR § 306(a) sets forth that “proof of service shall specify the papers served, the person who was served and the date, time, address, or, in the event there is no address, place and manner of service, and set forth facts showing that the service was made by an authorized person and in an authorized manner”.  CPLR § 306(b) sets forth when service is made is personally made upon an individual, “proof of service shall also include a description of the person to whom it was delivered, including, but not limited to sex, color of skin, hair color, approximate age, approximate weight and height and other identifying features”.

 Proof of the defendant's awareness of the subpoena at the time of its alleged violation is an element of Criminal Contempt in the Second Degree which must be established by non-hearsay allegations.   An affidavit from the server of the subpoena is required to corroborate the “awareness” element.   Since the rules governing securing the attendance of witnesses at criminal proceedings must be read in tandem with the CPLR, it follows that the subpoena server's affidavit must contain facts which conform to the proof of service requirements set forth in CPLR § 306.

In the instant case, both the initial and superceding accusatory instruments fail to establish a prima facie case of PL 215.50(3) based upon disobedience of a subpoena.   The initial complaint required, at the very least, a corroborating affidavit from ADA Kavita Bovell, since the factual allegations set forth that she is the individual who served the defendant.   Moreover, even if such a corroborating affidavit had been filed, it would have had to include a description of the defendant's physical appearance, as required by CPLR § 306(b).  The superceding complaint, even when read in tandem with the subsequently filed copy of the subpoena, also fails to constitute a jurisdictionally sufficient information.   The complaint is based upon the deponent's personal observation and the server of the subpoena is not even identified.

We conclude that when a charge of Criminal Contempt in the Second degree is based upon non-compliance with a subpoena, a sufficient information requires both a copy of the subpoena in question and a supporting deposition that mirrors the proof of service requirements set forth in CPLR § 306.   Parenthetically, we note that unlike violations of orders of protection which are not governed by the CPLR, the defendant's awareness of the subpoena's existence cannot be established by exceptions to the hearsay rule.   If the individual who served the subpoena server becomes unavailable, as may be the case with ADA Kavita Bovell, there is support for the concept that an individual's admission that he was in fact served creates a hearsay exception.   See CPLR 4531;  Capital Resources Corp. v. Auguste, 266 A.D.2d 330, 698 N.Y.S.2d 303.   However, this hearsay exception would only come into play where an affidavit of service exists, is presented to the court and contains sufficient factual detail in conformity with CPLR § 306.   Nonetheless, this would not apply in the instant case, since no affidavit exists and the record does not reflect that the defendant ever conceded that she was in fact served.

We dismiss both the initial and superceding accusatory instruments on grounds of facial insufficiency pursuant to CPL 100.15 and 100.40.

This shall constitute the final decision and order of this court.

FOOTNOTES

1.   Except in cases growing out of labor disputes as defined by subdivision two of section seven hundred fifty three of the judiciary law.

2.   CPLR § 2303 requires the filing of proof of service except that where service of the subpoena is made pursuant to CPLR 308(2) [service to a person of suitable age and discretion, followed by a mailing to the defendant] or CPLR 308(4) [affix and mail], the filing of the proof of service shall not be required.

MELISSA C. JACKSON, J.