Appeal from a judgment of the Justice Court of the Village of Ardsley, Westchester County (Walter Schwartz, J.), rendered May 3, 2004. The judgment convicted defendant, after a nonjury trial, of criminal contempt in the second degree.Judgment of conviction reversed on the law and as a matter of discretion in the interest of justice, accusatory instrument dismissed and fine, if paid, remitted.

In the present matter, which originated in a long-running neighbor dispute, defendant was charged, inter alia, with criminal contempt in the second degree (Penal Law § 215.50 [3]) for allegedly staring at the complainants with her hands held around her eyes in imitation of binoculars in violation of a court order of protection. The order prohibited, inter alia, "interference" with the complainants, defendant's next door neighbors, and defined "interference," in pertinent part, as "viewing in the direction of complainants with binoculars or offending gazes, or in any other improper manner." These terms are vague and unenforceable, as defendant could not rationally be expected to know whether or not any particular instance in which she looked in complainants' direction could be interpreted as "offending" or "improper," and therefore they cannot support the criminal contempt charge herein (see Matter of the Department of Envtl. Protection of City of N.Y. v Department of Envtl. Conservation of State of N.Y., 70 NY2d 233, 241 [1987]; Matter of Holtzman v Beatty, 97 AD2d 79, 82 [1983]). Accordingly, the court, sitting as trier of fact, erred in convicting defendant of criminal contempt in the second degree (Penal Law § 215.50 [3]), as the order of protection that she was accused of violating did not constitute a "clear and definite order of the court" (Matter of Holtzman v Beatty, 97 AD2d at 82).

Although, as the People note on appeal, defendant failed to move below to dismiss the [*2]accusatory instrument or to make a motion for a trial order of dismissal, and
thus failed to preserve the due process issues raised upon this appeal, in the circumstances of this matter, we reach these issues in the interest of justice (CPL 470.15 [1], [6] [a]).

Rudolph, P.J., Angiolillo and McCabe, JJ., concur.
Decision Date: January 30, 2006