The issue is whether an accusatory instrument charging a defendant with criminal contempt in the second degree must be dismissed in furtherance of justice and as facially insufficient when records from another court indicate that the defendant did not violate the subject order of protection.

On January 22, 2025, Shaun Moultry ("defendant"), was arraigned on a misdemeanor complaint charging him with criminal contempt in the second degree, PL 215.50(3). A person is guilty of criminal contempt in the second degree when they engage in the following conduct: "Intentional disobedience or resistance to the lawful process or other mandate of a court." PL 215.50(3). The complaint alleges that the deponent PO Cotto was informed by Gloria Moultry that "defendant did state to the informant, in a conversation regarding the defendant visiting the defendant and complainant's father that day, in sum and substance, tell Isaac not to visit my father today." Isaac Moultry, the second informant, told the deponent PO that this was in violation of a full order of protection issued by Honorable Arlene E. Katz in Westchester County Family Court, in effect until 4/8/25, "ordering the defendant to refrain from communicating with Shawn Moultry except for a true emergency." The relationship between the parties is that defendant and Isaac Moulty are brothers and Gloria Moultry is their mother.

In accordance with the court's authority to take judicial notice of undisputed court records and files [Khatibi v. Weill, 8 AD3d 485, 485 (2d Dept. 2004)]; Healing Art Acupuncture, P.C. v 21st Century Ins. Co., 2018 NY Slip Op 50583(U), 2018 NY Misc. LEXIS 1358, *2-3 (App. Term 2d Dept. 2018)], this court takes judicial notice of the underlying order of protection issued by Hon. Arlene E. Katz, dated September 9, 2024, which directs Shawn Moultry ^[FN1] to stay away from Isaac Moultry, and notes that the superseding information has a typographical error in stating that defendant's alleged conduct was in violation of the order requiring him to "refrain from communicating with Shawn Moultry." This court also takes judicial notice that the order of protection contained no prohibition against contacting Isaac Moultry through third parties. The nature of the allegation is that defendant told his mother to tell his brother Isaac not to visit his father that day, which constitutes third party contact. It can be inferred that the purpose of [*2]telling his mother was to prevent a violation of the order of protection by running into him at his father's house, whom he planned to visit. This court finds that defendant's conduct this did not constitute a violation of the order of protection.

The "essential elements of criminal contempt in the second degree are that a lawful order of the court was in effect and was clearly expressed, that the defendant had knowledge of its provisions . . . and that the defendant intentionally disobeyed it." People v Celifie (Guy), 2015 NY Slip Op 50466(U), 47 Misc 3d 133(A)(App. Term 2d Dept. 2015). Here, since defendant did not intentionally or unintentionally disobey an order of the court, there is no reasonable cause to believe that defendant engaged in criminal contempt in the second degree.

CPL § 170.40 (1) provides that the court may dismiss an information or misdemeanor complaint in furtherance of justice when the prosecution of the defendant would constitute or result in an injustice. In making this determination, the court must consider the evidence of guilt. This court finds that the prosecution of defendant would constitute a grave injustice since there is no evidence that he committed a crime. Accordingly, defendant's motion to dismiss is granted in furtherance of justice. Given the absence of factual allegations in the complaint establishing that defendant committed criminal contempt in the second degree, the accusatory instrument must also be dismissed as jurisdictionally defective. People v Delvecchio (Sara), 2018 NY Misc. LEXIS 4415, *4-5 (App. Term 2d Dept. 2018). This constitutes the decision and order of the court.