The defendant is before the Court on two separate cases. Each case essentially arises from an alleged violation of two different Temporary Orders of Protection issued by this Court against the defendant for the benefit of the same complaining witness. The conflict began with an original criminal case, involving this defendant and the complaining witness, docket number 2005NY030821 (Case No.1). In this initial case Judge Melissa Jackson issued a Temporary Order of Protection on May 18, 2005, which was valid until August 4, 2005 (Order #1). Eventually Case #1 was dismissed and sealed. However, one of the cases currently before the Court arises from an alleged violation of Order #1.

Under docket number 2005NY038635 (Case #2) the defendant is charged with one count of criminal contempt in the second degree (PL § 215.50[3]) and one count of menacing in the second degree (PL § 120.14[1]). The information on this docket alleges, in substance, that on May 23, 2005, the defendant menaced the complaining witness with a knife. The information further alleges, as the basis for the criminal contempt charge, that this menacing took place at a time when Order #1 was in effect. As part of the administration of Case #2 Judge Jackson issued a Temporary Order of Protection (Order #2) for the complaining witness' benefit on August 2, 2005. Order #2 remained in effect until August 31, 2005.

Under docket number 2005NY055772 (Case #3) the defendant is charged with one count of criminal contempt in the second degree (PL § 215.50[3]). The information in this case alleges that on August 16, 2005 the defendant called the complaining witness on the telephone and threatened to kill her. The information further alleges that on August 16, 2005 there was a valid Temporary Order of Protection in place, Order #2, issued by Judge Jackson in Case #2.

On August 2, 2005, the defense served its written omnibus motion in Case #2. On August 31, 2005, at the calendar call of this case the People submitted a written response to that motion. At that time the defense orally moved to dismiss the criminal contempt charge in each of the informations from Case #2 and Case #3 as facially insufficient on the grounds that the copies of the Temporary Orders of Protection attached to each information were not certified, and thus were hearsay. The People opposed defendant's motion, arguing that the Temporary Orders of Protection need not be certified, and in the alternative requesting that the Court take judicial notice of the Temporary Orders of Protection. Although, the Court asked defense counsel to [*2]send a letter to the Court on this issue, the Court never received it.

In addition, in Case #2, in her written omnibus motion, the defendant moved for an order (1) directing the People to provide a Bill of Particulars and Discovery, (2) precluding unnoticed statement and identification evidence, (3) precluding the use of her prior criminal history or prior uncharged criminal, vicious or immoral conduct at trial, (4) requiring that any hearings granted in this case be held at least twenty days prior to commencement of the trial, (5) prohibiting the prosecution from presenting any evidence that the defendant committed any other crime, (6) determining that investigative, expert or other services are necessary and that the defendant is financially unable to obtain them, authorizing payment for such services, and (7) suppressing physical evidence. Defendant's motions are decided as follows:

Motion to Dismiss for Facial Insufficiency

Defendant's motion to dismiss the charge of criminal contempt in the second degree is denied in both Case #1 and Case #2.

In order to be facially sufficient, an information must contain an accusatory part designating the offense or offenses to be charged (CPL 100.15 [1], [2]) and a factual part containing facts of an evidentiary nature supporting or tending to support the charges (CPL 100.15 [1], [3]). The factual allegations, together with any supporting depositions, must provide reasonable cause to believe that the defendant committed the offense charged (CPL 100.40 [1] [b], [4] [b]; People v Casey, 95 NY2d 354 [2000]). In addition, a sufficient information must also contain non-hearsay allegations in the factual part and/or in any supporting depositions that, if true, establish every element of the offense and the defendant's commission of the offense (CPL 100.40 [1] [c]; People v Alejandro, 70 NY2d 133 [1987]; People v Hall, 48 NY2d 927 [1979]). At issue in these cases is the requirement that each element be supported by non-hearsay allegations.

Penal Law § 215.50(3) states, in pertinent part, "[a] person is guilty of criminal contempt in the second degree when he engages in any of the following conduct: [i]ntentional disobedience or resistance to the lawful process or other mandate of a court...." In these cases it is alleged that the defendant intentionally disobeyed Temporary Orders of Protection. The defendant argues that the criminal contempt charges against the defendant must be dismissed in both cases because the copies of the Temporary Orders of Protection that the People have submitted are not certified, and thus are hearsay.

The Court of Appeals made clear in People v Casey, 95 NY2d 354 (2000) that although it is the best practice to annex a certified copy of the Temporary Order of Protection to the information in criminal contempt cases based on a violation of the order, an information may survive a facial insufficiency motion without such a certified copy (Casey, 95 NY2d at 359-360). In Casey the Court found that the complaining witness' supporting deposition, in which she averred that a Temporary Order of Protection had been issued, provided the necessary non-hearsay allegations, making a certified copy of the Temporary Order of Protection unnecessary (Casey, 95 NY2d at 360; see also People v. Inserra, 4 NY3d 30 (2004); People v. Moreira, 2001 Slip Op 40122U [Crim Ct, Queens County, Aug. 20, 2001]). Thus, if the informations in the [*3]case at hand contained allegations from the complaining witness that she was in possession of or knew of the Temporary Orders of Protection for her benefit and that the defendant had signed the orders, these allegations would provide sufficient non-hearsay allegations without further need for certified copies of the Temporary Orders of Protection (see Casey, 95 NY2d at 360, Moreira, 2001 Slip Op 40122U at 8).

However, the information and the supporting depositions in these cases do not provide the allegations necessary to obviate the need for a certified copy of the Temporary Order of Protection. In Case #2 the relevant portion of the information provides: "Deponent [a police officer] further states that the above-described conduct is in direct violation of a valid Order of Protection...Deponent further states that said Order of Protection is signed by defendant." The information from Case #2 reads: "Deponent states (i) that the above actions by defendant are in violation of an order of protection...." In both cases there is no indication that the deponent-police officers' knowledge of the Temporary Orders of Protection is first hand knowledge, and thus the officers' statements about the orders are hearsay.

Having decided that the factual allegations do not fulfill the need for non-hearsay allegations as to the existence and force of the Temporary Orders of Protection the defendant is accused of violating, the information may still be sustained if the Court may take judicial notice of the Temporary Orders of Protection. Generally, a court may take judicial notice of its own records in the case before it, or of records of another action in the same court (see People v. Issac, 7 Misc 3d 1004A [Crim Ct, Queens County, 2005], People v. Perez, 195 Misc 2d 171 [Crim Ct, New York County, 2003]). Therefore, the Court generally has the power to take judicial notice of Temporary Orders of Protection issued by this court in other cases.

Here the People ask the Court to take judicial notice of two different Temporary Orders of Protection. In Case #2 the People want the Court to take judicial notice of Order #1, which arose out of Case #1. In Case #3 the People want the Court to take judicial notice of Order #2, which arose out of Case #2. The Court hereby takes judicial notice of Order #2 that is, the Temporary Order of Protection issued on August 2, 2005 by Judge Jackson, docket number 2005NY038635, valid until August 31, 2005. Thus, the People's request in Case #3 (i.e. docket number 2005NY055772) that the Court take judicial notice of the Temporary Order of Protection the defendant allegedly violated is granted, thereby eliminating the need to file and serve a certified copy of the order, or otherwise provide non-hearsay allegations of the order's existence, and the defendant's motion to dismiss the criminal contempt charge from case #3 is denied.

However, in Case #2 the Temporary Order of Protection the People ask the Court to take judicial notice of (Order #1) arose out of Case #1, a case that has since been dismissed and sealed. Thus, to take judicial notice of Order #1 the Court would have to unseal the records of Case #1 (see Perez, 195 Misc 3d at 177 ("[w]ithout being able to examine the record of that sealed case, the court is unable to determine the facts which the People request the court to judicially notice")). The instances in which a court has the power to unseal records are set forth in Criminal Procedure Law § 160.50(1)(d). The statute sets forth six instances in which records can be unsealed, and these six categories are "precisely drawn" (Matter of Katherine B. v. Cataldo, 5 NY3d 196, 203 [2005]) and "narrowly defined" (Matter of Joseph M. v. New York City [*4]Board of Education, 82 NY2d 128, 132 [1993]). Significantly for the case at hand, "the Legislature has limited a court's authority to make sealed records available to a prosecutor after commencement of a criminal proceeding to the singular circumstance delineated in CPL 160.50(1)(d)(i) where the accused has moved for an adjournment in contemplation of dismissal in a case involving marijuana charges below felony grade." (Matter of Katherine B., 5 NY3d at 205; see also Matter of Joseph M., 82 NY2d 128, Perez, 195 Misc 2d 171). Therefore, the Court lacks the authority to unseal the records of Case #1, and thus is incapable of taking judicial notice of Order #1.

Because the Court cannot take judicial notice of Order #1, the allegation in Case #2 that a valid Temporary Order of Protection was in effect is still unsupported by non-hearsay factual allegations. However, the Court finds that the defendant has, through her failure to object in a timely fashion, waived any objection to this defect in the information. In Casey the Court of Appeals noted that CPL § 100.40 sets forth two requirements for a facially sufficient information "first, there must be factual allegations establishing every element of the offense and second, those allegations must be 'non-hearsay' " (Casey, 95 NY2d at 362). The Court of Appeals went on to explain that while the first requirement is a non-waivable jurisdictional defect, a violation of the second requirement, that the allegations be non-hearsay, is not jurisdictional, and therefore any objection to such a violation may be waived, if it is not raised in a timely manner (Id. at 362 363; see also Matter of Michael M., 3 NY2d 441 [2004]). In People v. Key, 45 NY2d 111 (1978), the Court found an information charging driving under the influence of alcohol to be facially insufficient because there was no allegation that the defendant was operating the automobile or that the engine was running (Key, 45 NY2d at 116). However, the Court also held that the defect in the information was waived because the defendant waited until eight months after his arraignment, when the case was reached for trial, to move to dismiss the information (Id.).

Similarly, defendant in this case waived her objection to the hearsay nature of the allegations by not raising them earlier. The defendant was arraigned on Case #2 on June 2, 2005. At the defendant's next court appearance on Case #2, on June 24, 2005, her lawyer pointed out to the Court that the complaint mistakenly stated that the Order #1 was issued on March 18, 2005. At that time the Court granted the People's motion to correct the complaint to indicate that the Temporary Order of Protection was issued on May 18, 2005. At no time during this appearance did the defendant raise an objection to the fact that the copy of the Temporary Order of Protection was not certified. The next time the defendant was before the Court was on August 2, 2005. On this date the defense served and filed motions and the case was put on the calendar for August 31, 2005 for the People's response and the Court's decision. The defendant did not raise the uncertified nature of the Temporary Order of Protection in her written motions, but instead raised the issue orally on August 31, 2005. Although the Court asked defense counsel to submit, in writing, his argument on the need for the Temporary Order of Protection to be certified, defense counsel did not do so. The Court finds that the defendant's failure to raise this issue at all until almost three months after her arraignment, and her continued failure to raise the issue properly, in writing, constitutes a waiver of any objection to the hearsay nature of the [*5]allegation that a Temporary Order of Protection was in effect at the time of the alleged threatening conduct on defendant's part.

People v. McGowan, 2002 Slip Op 40330U (Crim Ct, Richmond County, 2002) involved a situation similar to the one here. In that case, prior to jury selection, the Court informed the parties that the criminal contempt count of the information had not been properly converted because the People had filed a certified copy of the wrong order of protection. The People immediately served and filed a certified copy of the correct order of protection. At that point the defendant moved to dismiss pursuant to CPL § 30.30, arguing that the People's prior answers of ready for trial did not stop the speedy trial clock because the information had not been properly converted. The Court held that any objections the defendant may have had to the facial sufficiency of the information were waived by the defendant's failure to raise them in a timely fashion. The Court explained:

the defendant never moved to dismiss any of the charges on the ground that they were defective under CPL 170.35(1) or (2). Here, once the People filed the supporting deposition and the certified copy of the order of protection on June 12, 2001, the matter was deemed converted pursuant to CPL 170.65(1). Had defense counsel filed motions to dismiss the accusatory instrument, at that time, the Court would surely have been alerted to the problem, and since the defect was easily curable, the District Attorney would have been given leave to cure this defect. Therefore, the defendant's failure to seek to have the charges dismissed on the ground that the incorrect order of protection was filed with the court is deemed to be a waiver of this issue (McGowan, 2002 Slip Op 40330U at 5).

In the present case, as in McGowan, the defendant has delayed raising the issue of the uncertified nature of the Temporary Order of Protection to a point in time when the defect can no longer be easily rectified. Had the defendant raised the issue earlier the People could easily have obtained a certified copy of Order #1 from the case file of Case #1. However, the defendant waited until after Case #1 was dismissed and sealed to raise the issue, thereby making the simple fix of obtaining a certified copy of Order #1 impossible.

Both case law and Criminal Procedure Law §255.20 support finding a waiver in this case. CPL § 255.20 provides: "all pre-trial motions shall be served or filed within forty-five days after arraignment and before commencement of trial...[a]ny other pre-trial motion made after the forty-five day period may be summarily denied." Thus, as the defendant's motion to dismiss for facial insufficiency on the grounds that the Temporary Order of Protection was not certified was not made until August 31, 2005, well after forty-five days from defendant's arraignment on June 2, 2005, and more than forty-five days after June 24, 2005 (the day defense counsel objected to the discrepancy between the attached order and the dates set forth in the complaint), the Court has the discretion to deny the motion (see People v. Davidson, 98 NY2d 738, 739 [2002], People v. Dean, 74 NY2d 643, 644 [1989], People v. Rahmen, 302 AD2d 408, 409 [2d Dept, 2003]). Therefore, defendant's motion to dismiss the criminal contempt charge from Case #2 (docket number 2005NY038635) is denied.

Motion for a Bill of Particulars and Additional Discovery

Defendant's motion to compel a Bill of Particulars and for additional [*6]discovery is denied. The People's Voluntary Disclosure Form is sufficient.

Motion to Preclude Unnoticed Statement Or Identification Testimony

Defendant's motion to preclude unnoticed statements and identification

testimony is granted (CPL 710.30 [3]).

Sandoval Motion

Defendant's Sandoval motion is referred to the trial court.

Motion on Timing of Hearings

Defendant's motion asking the Court to order that any hearings be held at least twenty days prior to the commencement of trial is denied with leave to renew and/or request daily copy of transcripts of any hearings prior to the commencement of such hearings.

Molineux Motion

Defendant's motion to preclude the People from presenting any evidence that the defendant committed any other crime is referred to the trial court.

Motion for Funds for Investigation

Defendant's motion seeking authorization of payment for investigative services is granted. The fees for such investigative services are not to exceed the maximum allowed by statute. The appropriate order should be submitted to the judge presiding in All Purpose Part C.

The People are reminded of their obligation to supply Brady material.

To the extent not addressed herein, the remainder of the motions are denied.

These cases are scheduled in Part C on October 6, 2005.

Dated:New York, New York

October 4, 2005

____________________________

ANTHONY J. FERRARA

Judge of the Criminal Court [*7]