[*1]
People v Martin
2007 NY Slip Op 50452(U) [15 Misc 3d 1101(A)]
Decided on March 8, 2007
Justice Court Of Village Of Hastings On Hudson, Westchester County
DeVita, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 8, 2007
Justice Court of Village of Hastings on Hudson, Westchester County


People of the State of New York

against

David Martin, Defendant.




06 CR-2963

James R. DeVita, J.

Defendant David Martin is charged with Criminal Contempt in the Second Degree, in violation of Penal Law § 215.50 (3), for allegedly violating the terms of an Order of Protection issued by Justice Joseph A. DiSalvo of this Court on July 5, 2006 in connection with Mr. Martin's sentence, after a plea of guilty, to a prior charge of Criminal Contempt in the Second Degree. People v. Martin, Docket No. 2791.[FN1]/ More specifically, Mr. Martin is charged with violating the Order of Protection which, in addition to directing that he "[r]efrain from assault, stalking, harassment, menacing, reckless endangerment, disorderly conduct, intimidation, threats, or any criminal offenses against" his wife, also directs in Condition 99 that he "refrain totally from any use of alcohol." Order of July 5, 2006 (hereinafter referred to as "the Order") ORI No. NY059341J. It is alleged that on December 5, 2006, Mr. Martin consumed alcohol, and became intoxicated, at his home in Hastings on Hudson, New York, which he shares with his wife.

Mr. Martin moves for dismissal of the accusatory instrument on the grounds that: (1) Condition 99 of the Order is "overbroad and impinges upon a Constitutional right of the Defendant;" (2) "Condition No. 99 of the Order of Protection . . . is not reasonably necessary to protect the person seeking the Order;" (3) "based upon the statutory elements of the criminal charge, no crime has been committed even if the factual allegations are taken as true;" and (4) in the interests of justice, pursuant to § 170.40(1) of the Criminal Procedure Law. Defendant's Notice of Motion, filed February 7, 2007.

For the reasons set forth in this Opinion and Order, defendant's motion to dismiss the accusatory instrument is denied.[FN2]/ Trial will commence as scheduled on March 8, 2007. [*2]

A. Defendant's Collateral Attacks on the Order Must Be Rejected.

Defendant's arguments that the July 5, 2006 Order is overbroad and impinges on his Constitutional rights, and that its prohibition against any consumption of alcohol is not reasonably necessary to protect Mrs. Martin, represent an attempted collateral attack on the underlying order. As such, both arguments must be rejected. Long ago, the United States Supreme Court, in United States v. United Mine Workers of America, 330 U.S. 258, 67, S. Ct. 677, 91 L. Ed. 884 (1947) stated:

[W]e find impressive authority for the proposition that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings. This is true without regard even for the constitutionality of the Act under which the order is issued. . . ."It is for the court of first instance to determine the question of the validity of the law, and until its decision is reversed for error by orderly review, either by itself or by a higher court, its orders based on its decision are to be respected and disobedience of them is contempt of its lawful authority, to be punished."

330 U.S. at 293-294, 67 S. Ct. at 696 (footnotes and citations omitted), quoting Howat v. Kansas, 258 U.S. 181, 189, 42 S. Ct. 277, 289, 281, 66 L. Ed.. 550 (1922).

That rule has been reiterated repeatedly by our Court of Appeals, Rivera v. Smith, 63 NY2d 501, 516, 483 NYS2d 187, 195, 472 NE2d 1015, 1022-1023 (1984); Balter v. Regan, 63 NY2d 630, 631, 479 NYS2d 506, 507, 468 NE2d 688, 689, cert. denied, 469 U.S. 630 (1984); by the Appellate Division for this Department, Gloveman Realty Corp. v. Jefferys, 29 AD3d 858, 815 N.Y.S.2D 687, 688 (2d. Dep't 2006); Matter of Bickwald v. Deutsch, 229 AD2d 533, 534-535, 645 NYS2d 539, 540 (2d Dept. 1996); and by other Appellate Divisions, see, e.g., State v. Congress of Racial Equality, 92 A.D. 815, 816-817, 460 NYS2d 58, 60 (1st Dep't 1983); Mt. Sinai Hospital v. Davis, 8 AD2d 361, 363, 188 NYS2d 298, 301 (1st Dep't 1959). The reason for that rule is simple: "Defendants could not cavalierly ignore these orders then relitigate their propriety before another justice of the same Court upon motions to punish them for contempt. Such procedure creates chaos in the enforcement of court orders." Mt. Sinai Hospital, supra , 8 AD2d at 364, 188 NYS2d at 301-302.[FN3]/ [*3]

Application of this rule in this case is especially appropriate. The Order at issue was promulgated by the Court as part of a negotiated plea resolving several earlier charges, in which the defendant was not only represented by counsel, but was represented by the same counsel who now attacks the Order as overbroad and unnecessary for the protection of the complaining witness in the original cases. If the defendant or his counsel considered the Order invalid, the proper course would have been to oppose the Order when it was first proposed, move to have it vacated after it was signed, or appeal the Order to a higher court. Having taken none of those steps, the defendant may not now attack the validity of the Order which he is accused of violating.

That does not mean, however, that this Court can or will ignore the defendant's arguments that the July 5, 2006 Order is invalid. That Order, by its terms, will run through July 5, 2009. Thus, even though the defendant's objections to the Order cannot have any impact on the pending charges, and cannot be the basis for dismissal of the accusatory instrument in this case, they must be addressed by the Court because of the Order's potential impact in the future. The defendant's motion to dismiss the accusatory instrument will be treated as a motion to vacate or amend the July 5, 2009 Order of Protection and will be the subject of a hearing at the conclusion of the trial of the pending charges.

B. The Defendant's Remaining Arguments Do Not Warrant Dismissal.

The defendant's remaining arguments require little discussion. His contention that the defendant cannot have formed the necessary intent to violate the Order, and thus violate § 215.50(3), because he is an alcoholic presents an issue for trial. It is important, however, to recognize that the defendant is not being prosecuted for his condition, if any, but for his alleged [*4]behavior. Compare Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed.2d 758 (1962) with Powell v. Texas, 392 U.S. 514, 88 S. Ct. 2145, 20 L. Ed.2d 1254 (1968). If the law were as defendant contends, drug addicts could never be prosecuted for possession or use of narcotics, which is not the case. People v. Davis, 33 NY2d 221, 351 NYS2d 663, 306 NE2d 787 (1973), cert. denied, 416 U.S. 973 (1974). Furthermore, the arguments presented in favor of dismissal of the accusatory instrument in the interests of justice simply do not provide sufficient basis for a dismissal; if the defendant is convicted after trial, they will be considered in mitigation of any sentence that may be imposed.

Dated: Hastings on Hudson, New York

March 8, 2007 (As revised March 9, 2007)

SO ORDERED

_________________________

James R. DeVita

Acting Village Justice

Footnotes


Footnote 1:/Mr. Martin's plea of guilty in that case also covered to prior charges of Criminal Contempt in the First Degree (PL § 215.51(b)(v)) (Docket No. 06 Cr. 2641), Harassment in the Second Degree (PL § 240.26(3) (Docket No. 06 Cr. 2642) and Criminal Contempt in the Second Degree (Docket No. 06 Cr. 2704).

Footnote 2:/In addition to moving to dismiss the accusatory instrument, defendant moved for: suppression of evidence, in the form of statements of the defendant and eyewitness identification; discovery and inspection; limitations on prospective cross-examination pursuant to People v. Sandoval, 34 NY2d 371, 357 NYS2d 849, 314 NE2d 413 (1974); delivery of any exculpatory evidence pursuant to Brady v. Maryland, 373 U.S. 83 (1963); and a hearing on these motions. With respect to the defendants' request for discovery and inspection, both the defendant's and the People's submission on this motion indicate that the defendant has had "open file" discovery. Thus, that branch of the defendant's motion is moot. Moreover, the People acknowledge their obligations under Brady and represent that they have complied with them, and will continue to do so. In the absence of any suggestion to the contrary, the Court need take no further action in that regard. The Court will address the remaining issues at the time of trial, and any hearing that is necessary will be conducted at that time.

Footnote 3:/Although none of the cases cited involved charges under PL § 215.50 (3), that does not affect the analysis, since they do involve punishment for criminal contempt of court. Curiously, the one case that the Court's research revealed which did involve charges under § 215.50(3), People v. Smith, 4 Misc 3d 909, 782 NYS2d 596 (Crim. Ct. NY Co. 2004), permitted a collateral attack on the underlying order on the ground that violation of § 215.50(3) requires violation a "lawful mandate" of a court. 4 Misc 3d at 910, 782 NYS2d at 597. That decision, however, made no reference to the well established rule against collateral attacks or any of the cases articulating it. As pointed out it State v. Congress of Racial Equality, supra , a First Department case applying the rule against collateral attacks, criminal contempt under the Judiciary law is also "defined as a wilful disobedience of a Court's lawful mandate . . . and is imposed generally to preserve the power and vindicate the dignity of the Court.." 92 S.D.2d at 816, 460 NYS2d at 60 (emphasis added). Nevertheless, the First Department held, "this requirement of obedience to the lawful mandate of the Court obtains even though it is afterwards held that the order was erroneous or improvidently made or granted by the Court under misapprehension or mistake." 92 AD2d at 817, 460 NYS2d at 60. Thus, People v. Smith ignored binding authority prohibiting the court from entertaining a collateral attack. Moreover, it did so relying on clearly inapplicable precedent. For example, In the Matter of Holtzman v. Beatty, 97 AD2d 79, 468 NYS2d 905 (2d Dep't 1983), cited by the court in Smith, involved an order that was insufficiently specific as to what the defendant was required to do and that, therefore, could not support a finding that he had violated the order. The validity of the order was not questioned. In this case, there is no question that the conduct alleged in the accusatory instrument is clearly prohibited by the Order. Of course, the Smith court's citation of the Beatty case as precedent represents recognition that the rules applicable to criminal contempt motions also apply to charges under § 215.50(3), since the Beatty case involved a contempt motion, not a § 215.50(3) prosecution.