The People of
the State of New York,
against
Christopher Clark, Defendant.
|
CR 929-13
Jonah Triebwasser, J.
On January 16, 2013, an Order of Protection was issued by this Court in favor of
defendant's former wife, Julia Clark. Said Order, which was valid for five years,
instructed defendant not to contact his former wife.
On January 27, 2013, defendant allegedly sent a text to one Jonathan O.
Wendover, who self-identifies as the inamorato of Julia Clark, defendant's
ex-wife. The text allegedly said "Just want to say thanks for taking out my trash. You
must be one of the most desperate MF I have ever met."[FN1]
Defendant was subsequently arrested, on or about January 31, 2013, for
Aggravated Harassment in the second degree in violation of section 240.30 of the Penal
Law. Said arrest was the predicate for an additional charge of Contempt in the second
degree, in violation of section 215.50(3) of the Penal Law, for allegedly disobeying the
Order of Protection of the Hon. Joan Posner, Dutchess County Family Court Judge,
which prohibited contact with his ex-wife and referring to her in a derogatory
manner.
Defendant moved on April 24, 2014, before this Court to dismiss these
charges, claiming that the accusatories were facially insufficient and to dismiss on speedy
trial grounds. The People responded on May 9, 2014, opposing the motion, in
toto.
In a decision dated May 13, 2014, People v. Golb, (2014 WL
1883943) the Court of Appeals ruled Penal Law §240.30(1); Aggravated
Harassment 2d degree, to be unconstitutional based on the statute's language that
prohibits communications "likely to cause annoyance or alarm." These terms were
deemed vague and overbroad by our state's highest Court.
Given the clear precedential mandate of Golb, the charge of
Aggravated Harassment in the second degree in violation of section 240.30 of the Penal
Law is hereby dismissed.
As to the charge of Criminal Contempt in the Second Degree, in violation of
section 215.50(3) of the Penal Law, the allegation in the complaint of Julie Clark, dated
January 31, 2013, is that defendant violated an Order of Protection allegedly signed by
the Hon. Joan Posner, Judge of the Family Court, which purportedly prohibited
defendant from contacting Julie Clark in any manner including indirectly through a third
party, and also prohibited defendant from speaking disparagingly of Julie Clark.
The statements so complained of consisted of the "taking out my trash" text
message to Mr. Wendover noted, supra, and a second text message to Mr.
Wendover which allegedly said "Whats (sic) so funny is that she is gonna
(sic) leave you for a garbage man in a couple of years. Look at her pattern. You
must be so desperate. Good luck texting my kids."
At no time was Ms. Clark referred to by name, nor by status (such as "my
ex-wife") or some other clear identifying data in the text messages. We must guess that
these messages, and the sole identifying description of "she," somehow refers to the
protected party. Given that there are at least 157 million "shes" in the United States
[FN2]
, the term "she" is not specific enough to give the defendant fair notice of how he would
be in contempt of the alleged Order of Protection. This Court refuses to put a defendant
through the rigors of a criminal defense on so slender a thread.
Defendant's points that Mr. Wendover is not the protected party in the Order
of Protection, that the prohibition against derogatory comments may be violative of the
free speech guarantees of the First Amendment of the United States Constitution, that the
Order of Protection is not attached to the complaint, nor are the dates of the effectiveness
of said Order noted in the complaint, are all well taken. These failures rob this Court of
vital information upon which it could decide if such an Order was still in effect and if it
did indeed constrain the defendant as the complaint alleges [see Matter of
McCormick v. Axelrod, 59 NY 574, 583 (1983).]
For these reasons, the complaint alleging Criminal Contempt in the Second
Degree is dismissed as being facially insufficient, without prejudice to the People for
leave to file a superceding information or an amended accusatory instrument.
Having so dismissed the charges herein, the Court sees no need to reach
defendant's other contentions at this time.
This decision also constitutes the Order of this Court.
Dated:June 20, 2014
Red Hook, New York
SO ORDERED.
_________________________________________
JONAH TRIEBWASSER,
Justice, Town of Red Hook
Footnotes
Footnote 1:The Court is reliably
informed that the initials MF stands for a vulgar term, suggesting that Mr. Wendover
participates in relations of the Oedipus type.
Footnote 2:The Court takes judicial
notice of the United States Census figures of 2010.