Defendant is charged, inter alia, with multiple acts of violating various orders of protection. The issue presented is whether the defendant can be found to violate a temporary order of protection which was extended in his absence, when such absence was not caused by his voluntary non-attendance.

In presenting this case to the grand jury, the Assistant District Attorney (ADA) introduced into evidence four full ("stay away") temporary orders of protection issued against defendant. The orders of protection were effective from June 3, 2006, until June 8, 2006, June 8, 2006, until July 24, 2006, July 19, 2006, until July 28, 2006, and July 28, 2006, until January 28, 2007, respectively. The grand jury heard testimony that defendant made phone calls to complainant during the time periods covered by each order of protection. The ADA instructed the grand jury to consider one count of criminal contempt in the first degree (PL 215.51[b][iv]) and criminal contempt in the second degree (PL 215.50[3]) for each order of protection. The grand jury returned a vote of True Bill on each of those counts.

The order dated June 8, 2006, was issued in criminal court and the line for the defendant's signature reads "defendant incarcerated." It appears defendant was not produced before the court when this order was issued. In fact, the Assistant District Attorney explained to the grand jury "sometimes the defendants are not brought up to sign orders of protection." The minutes of the grand jury proceeding are devoid of any indication that defendant was later served with this order [*2]of protection or that the issuing court ever read defendant the contents of the order. The order dated July 19, 2006, was issued in Supreme Court and indicates it was issued ex parte. This order was not signed by defendant.^[FN1] There were no minutes indicating that the contents of this order were explained to him, nor was an affidavit of service of the order upon the defendant produced. While it is possible that he was later served with the order, there was no evidence before the grand jury to that effect. Under these facts and circumstances, for the reasons explained below, the counts relating to defendant's alleged violation of these two orders of protection must be dismissed.

To sustain a prosecution for violation of an order of protection, a defendant must have sufficient notice of the contents of the order, either by being served with a copy of the order or by being advised orally in court of the order's contents (People v. McCowan, 85 NY2d 985 [1995]). The appearance of defendant's name on the signature line of an order of protection is sufficient to support the inference that defendant is aware of the order's contents. (People v. Inserra, 4 NY3d 30 [2004]).

In the matter sub judice, there is no indication that defendant was served with the orders of protection at issue or that he was advised of the contents of the orders by the issuing courts. The only possible rationale the People may have in salvaging these counts is based on CPL 530.12(4), which permits the extension of an order of protection in the absence of the defendant (see also, CPL 530.13[3]). Any such reliance for sustaining these counts is, however, misplaced. The statute clearly provides that "[t]he court may issue or extend a temporary order of protection ex parte or on notice simultaneously with the issuance of a warrant for arrest of defendant" (CPL 530.12[4]). This provision applies only to situations in which "the defendant does not appear on the adjourned date and the court issues a bench warrant. Since the warrant has no expiration date, and there is no way of telling in advance when the defendant will next appear, there is no way to determine an expiration date when extending the temporary order of protection" (Preiser, Supp Practice Commentaries, McKinneys Cons Laws of NY, CPL 530.12[4]).

Here, it is clear that the defendant did not warrant or voluntarily absent himself from court. The Court acknowledges that the high volume of cases in criminal court makes it difficult to bring every defendant up to appear in the courtroom when the order of protection is extended. However, the practice of extending orders of protection ex parte, absent the issuance of a bench warrant and without proof of service upon defendant, is patently lacking in holding a defendant accountable for violating such order.

Accordingly, counts five and nine (charging criminal contempt in the first degree) and counts six and ten (charging criminal contempt in the second degree) are dismissed with leave to re-present if the People can prove service of the orders of protection on defendant.

This shall constitute the decision and order of the Court. [*3]

E N T E R.

___________________J.S. C.