People v Plested (2012 NY Slip Op 50440(U))

People v Plested (Bonita)

2012 NY Slip Op 50440(U) [34 Misc 3d 159(A)]

Decided on March 8, 2012

Appellate Term, Second Department

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This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

The People of the State of New York, Respondent, —

against

Bonita Plested, Appellant.

Appeal from a judgment of the Justice Court of the Village of Greenwood Lake, Orange County (Nancy Brenner-DeAngelo, J.), rendered April 13, 2010. The judgment convicted defendant, after a nonjury trial, of criminal contempt in the second degree.

ORDERED that the judgment of conviction is reversed, on the law and facts, and the accusatory instrument is dismissed.

On April 3, 2009, after the People charged defendant with harassment in the second degree (Penal Law § 240.26 [1]) based on an April 2, 2009 incident wherein defendant was alleged to have verbally abused the complainant, the Justice Court issued a temporary order of protection, effective from April 3, 2009 until September 10, 2009. On September 6, 2009, the People charged defendant with criminal contempt in the second degree (Penal Law § 215.50 [6]) following a September 4, 2009 incident in which defendant allegedly had verbally abused the complainant. At a nonjury trial, defendant, testifying on her own behalf, admitted that she had engaged in verbally abusive conduct toward the complainant on April 2, 2009, but denied that she had initiated any communication with the complainant on September 4, 2009. The Justice Court acquitted defendant of harassment in the second degree, based on the April 2, 2009 incident, and convicted defendant of criminal contempt in the second degree, apparently based on [*2]the complainant's testimony as to defendant's conduct both on April 2, 2009 and on September 4, 2009.

At the outset, we note that defendant's conduct on April 2, 2009 may not be considered as direct evidence of a violation of an order of protection subsequently issued. When viewed in the light most favorable to the People (People v Contes, 60 NY2d 620, 621 [1983]), we find that the complainant's testimony as to defendant's verbal conduct with respect to her on September 4, 2009 was legally insufficient to establish a violation of the "no communication" provisions of the temporary order of protection.

In view of the foregoing, we need not address defendant's remaining contentions.

Accordingly, the judgment of conviction is reversed and the accusatory instrument dismissed.