THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RALPH FERENCHAK DEFENDANT APPELLANT

Reset A A Font size: Print

Supreme Court, Appellate Division, Fourth Department, New York.

THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. RALPH P. FERENCHAK, DEFENDANT-APPELLANT.

KA 09-00595

Decided: March 25, 2011

PRESENT:  SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND GREEN, JJ. REBECCA A. CRANCE, SYRACUSE, FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (SUSAN C. AZZARELLI OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law, the misdemeanor information is dismissed and the matter is remitted to Onondaga County Court for proceedings pursuant to CPL 470.45.

Memorandum:  Defendant appeals from a judgment convicting him upon a nonjury verdict of criminal contempt in the second degree (Penal Law § 215.50[3] ), arising from his violation of an order of protection.   We agree with defendant that the misdemeanor information upon which he was prosecuted was jurisdictionally defective because it did not contain allegations that, if true, established his knowledge of the order of protection (see generally CPL 100.15[3];  100.40[1][c];  People v. Kalin, 12 NY3d 225, 228-229;  cf.  People v. Inserra, 4 NY3d 30, 32-33).  “It is a fundamental and nonwaivable jurisdictional prerequisite that an information state the crime with which the defendant is charged and the particular facts constituting that crime ․ In order for an information to be sufficient on its face, every element of the offense charged and the defendant's commission thereof must be alleged” (People v. Hall, 48 N.Y.2d 927, 927, rearg. denied 49 N.Y.2d 918).   Here, the factual portion of the misdemeanor information alleges that defendant violated an order of protection issued on a particular date and recites the circumstances underlying that violation, but it does not allege that defendant was served with the order of protection, that he was present in court when it was issued or that he signed the order of protection (cf.   Inserra, 4 NY3d at 32-33;  People v. Casey, 95 N.Y.2d 354, 360;  People v. Harris, 72 AD3d 1492, 1493, lv denied 15 NY3d 774).   The complainant's supporting deposition does not reference the order of protection.   Although a copy of the order of protection was attached to the misdemeanor information, the order of protection states that it was issued on an ex parte basis, and there is no indication on the face thereof that it was served upon defendant.

We therefore reverse the judgment, dismiss the misdemeanor information and remit the matter to County Court for proceedings pursuant to CPL 470.45.   In light of our determination, we need not address defendant's remaining contentions.

Patricia L. Morgan

Clerk of the Court