People v Alvarez

District Court of Nassau County, First District

Decided on June 8, 2026

Docket No. CR-022474-25NA

Jaclene Agazarian, J.

PAPERS CONSIDERED:

Defendant's Notice of Motion, Affirmation, Exhibits 1

People's Affidavit and Memorandum of Law in Opposition, Exhibits 2

Defendant's Affirmation in Reply 3

PRELIMINARY STATEMENT

Defendant moves by Notice of Motion dated April 29, 2026, seeking an Order (1) dismissing the charge of Penal Law ("PL") §215.50(3), Criminal Contempt in the Second Degree, as facially insufficient and jurisdictionally defective pursuant to Criminal Procedure Law ("CPL") §170.30, CPL §170.35, CPL §100.25, and CPL §100.40; (2) suppressing all statements noticed pursuant to CPL §710.30 because they were obtained involuntarily or, in the alternative, directing a hearing be held to determine their admissibility pursuant to People v. Huntley and Dunaway v. New York; (3) directing a hearing prior to trial pursuant to People v. Molineux; and (4) directing a hearing be held prior to trial pursuant to People v. Ventimiglia. The People oppose the motion.

BACKGROUND

The Defendant is charged with one count of PL §215.50(3), Criminal Contempt in the Second Degree, with respect to an incident occurring on April 13, 2025; and one count of PL §155.25, Petit Larceny, with respect to an incident occurring on September 21, 2025. The Defendant was arraigned on November 3, 2025, and the People certified this matter as trial ready on February 2, 2026.

As it relates to PL §215.50(3), it is alleged that on April 13, 2025, the complainant was attending the parties' son's baseball game at which time she observed the Defendant present at that location, standing within 100 yards of her. It is alleged that this conduct was in violation of a [*2]Queens Criminal Court full stay away order of protection issued on April 9, 2025, and expiring on April 8, 2026, which prohibits Defendant from being within 100 years of the complainant. The information states that Defendant "was advised in court of issuance and contents of order on 06/09/2025." The Defense argues that this charge is facially insufficient and must therefore be dismissed.

ARGUMENTS

The defense argues that the information fails to provide non-hearsay allegations establishing each element of Criminal Contempt in the Second Degree. In particular, the defense asserts that the accusatory instrument fails to establish that the Defendant had knowledge of the provisions of the order of protection at issue on the date of incident. The Detective deponent states that the Defendant "was advised in court of issuance and contents of order on 06/09/2025," some two months after the Defendant is alleged to have violated it. The defense attaches a copy of the transcript from the Defendant's arraignment to demonstrate that the People were aware of this defect in the information when they advised the Court that the stated date of June 9, 2025 was an error that would be fixed. The defense argues that the People were on notice of this defect for months, had ample opportunity to correct it, and failed to do so. The defense maintains that even if this is a simple typographical error, the burden is on the People to cure it. They argue that an information must be sufficient within its four corners and this information is not.

The defense also argues that the People's failure to annex and affix a certified copy of the subject order of protection renders this charge insufficient. The defense further claims that the allegation that the defendant was "less than" 100 yards from the complainant, without further factual details, is conclusory and therefore facially insufficient. The defense requests suppression or a full Huntley/Dunaway hearing with respect to the Defendant's statement noticed pursuant to CPL §710.30, and requests a Molineux/Ventimiglia hearing.

In opposition, the People recognize the incorrect date stated in the information but maintain that the Defendant's statement of admission makes the charge sufficient. The People argue that because the Defendant's statement contains an acknowledgment that there was an order in existence on the date of incident, the knowledge requirement is met. They note that the information itself makes reference to Defendant's signed statement which, they maintain, cures any defect. The People insist that the underlying order of protection need not be annexed and affixed to make the information sufficient so long as the Defendant is provided with factual allegations sufficient to prepare a defense and not be tried twice for the same offense. The People argue that the Court must hold a hearing on this issue because the Defendant's allegations of fact have not been conceded by the People.

DISCUSSION

As an initial matter, there is no disputed issue of fact that would require a hearing on the issue of facial sufficiency. There is no dispute as to what facts are alleged in the accusatory instrument or as to what documents have been made a part of the accusatory instrument. Accordingly, there is no need or basis for a hearing.

An information is sufficient on its face when it (1) substantially conforms to the requirements of CPL §100.15, (2) sets forth allegations which "provide reasonable cause to [*3]believe that the defendant committed the offense charged" and (3) contains non-hearsay allegations which "establish, if true, every element of the offense charged and the defendant's commission thereof" (CPL §100.40 (1); People v Alejandro, 70 NY2d 133 [1987]).

On a motion to dismiss for facial insufficiency, the Court's review is limited to whether or not the People's allegations, as stated in the accusatory instrument and any supporting depositions, establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt (People v Henderson, 92 NY2d 677 [1999]; People v Jennings, 69 NY2d 103 [1986]). The court must view the facts in a light most favorable to the People (People v Vonancken, 27 Misc 3d 132 (A) [App Term, 2nd Dept, 9th & 10th Jud Dists 2010]; People v Mellish, 4 Misc 3d 1013 (A) [Criminal Court, NY County 2004]), without giving the accusatory instruments and supporting depositions an overly restrictive or technical reading (People v Casey, 95 NY2d 354 [2000]).

Pursuant to PL §215.50(3), "[a] person is guilty of criminal contempt in the second degree when he engages in any of the following conduct: [i]ntentional disobedience or resistance to the lawful process or other mandate of a court except in cases involving or growing out of labor disputes as defined by subdivision two of section seven hundred fifty-three-a of the judiciary law." The defendant must have knowledge of the terms of said order or mandate:

'To sustain a finding of ... criminal contempt based on an alleged violation of a court order it is necessary to establish that a lawful order of the court clearly expressing an unequivocal mandate was in effect' and the order was disobeyed by a person having knowledge of that order" **378 (People v. Roblee, 70 AD3d 225, 227, 890 N.Y.S.2d 166, quoting Matter of Department of Envtl. Protection of City of NY v. Department of Envtl. Conservation of State of NY, 70 NY2d 233, 240, 519 N.Y.S.2d 539, 513 N.E.2d 706; see Penal Law § 215.50[3] ). The defendant's knowledge of the terms of the order, as opposed to mere issuance of the order, is an essential element of the crime (see People v. Inserra, 4 NY3d 30, 32, 790 N.Y.S.2d 72, 823 N.E.2d 437; People v. McCowan, 85 NY2d 985, 987, 629 N.Y.S.2d 163, 652 N.E.2d 909).

People v. John, 150 AD3d 889, 889, (2nd Dept., 2017).

Here, there is no allegation that the Defendant had knowledge of the issuance and terms of the order of protection on the date he is alleged to have violated it.

The complainant's supporting deposition is silent as to when or if the Defendant was aware of or served with the order. The deponent Detective, in the "to wit" clause, states that Defendant was advised of it nearly two months after the date of incident. While the People maintain this is a typographical error, they never corrected it. As it stands currently, there is no non-hearsay allegation within the four corners of the accusatory instrument alleging that the Defendant was aware of the order and its terms on the date he is alleged to have violated it.

Because, on the date of incident, "[t]he factual portion of the instant information and supporting deposition fail[s] to contain any allegation that defendant was served with the order of protection, [or] that he was present in court when it was issued or that he signed the order of protection," the information is insufficient (People v. Carthew, 19 Misc 3d 138[A][App Term, 2nd Dept., 9th & 10th Jud Dists 2008]; see also: People v. McGovern, 52 Misc 3d 1202[A][Queens Crim. Ct., 2016][deponent must have first-hand knowledge that the defendant was aware of the order of protection and its terms to survive a facial sufficiency challenge]).

The People have neither filed a superseding information alleging Defendant knew the terms of the order on the date of incident nor attached a copy of the subject order of protection to the charging document for the Court to consider in determining this facial sufficiency challenge. Further, while the People ask the Court to consider the Defendant's written statement of admission, that statement has not been made part of the accusatory instrument. The People's failure to annex these documents precludes the Court from considering them even if they would have otherwise cured the defect:

[i]n most cases, the face of the order identifies a method of service that was effectuated. People v. Caruso, 39 Misc 3d 137(A), 975 N.Y.S.2d 367, 2012 WL 7984345 (App.Term, 9th and 10th Dists.2012). In other cases, there is separate proof of service. E.g., People v. Picado, 34 Misc 3d 660, 933 N.Y.S.2d 533 (Crim.Ct., Queens County 2011). Absent proof of service, the defendant's knowledge can be established by her admission that she knew of the order, e.g., People v. Cung, 112 AD3d 1307, 978 N.Y.S.2d 497 (4th Dept.2013), or by statements of other persons with first-hand knowledge of this fact. E.g., People v. Dixon, 118 AD3d 1188, 987 N.Y.S.2d 704 (3d Dept.2014) (two witnesses testified as to defendant's knowledge of an order of protection).

People v. Garcia, 46 Misc 3d 620, 628 (NY City Crim. Ct. 2014).

Here, no such proof is offered. Accordingly, while the People are not required to annex an affix an order of protection to an otherwise facially sufficient information (Casey, 95 NY2d at 360; People v. Konieczny, 2 NY3d 569 [2004]), the instant information is not otherwise facially sufficient as it fails to address every element of the offense charged.

The only reference in the information to Defendant's possible knowledge of an order, other than being advised on June 9, 2025, is the deponent Detective's statement that "[t]he defendant was mirandized and gave a full written statement of admission, stating in sum and substance to the deponent that he was present at said ballgame and aware of said order.^FN1" There are no further facts as to what order Defendant was referencing, what it directed, or when it was issued. This does not establish that on April 13, 2025, the Defendant knew of the existence of the subject order or mandate that prohibited him from being within 100 yards of the complainant.

"[I]n evaluating the sufficiency of an accusatory instrument we do not look beyond its four corners (including supporting declarations appended thereto)(People v. Thomas, 4 NY3d 143, 146, 791 N.Y.S.2d 68, 824 N.E.2d 499 [2005]). It is the People's responsibility to obtain a sworn statement with the correct factual allegations and proceed on a superseding instrument" People v. Hardy, 35 NY3d 466 (2020).

Because the four corners of the instrument fail to sufficiently allege all elements of Criminal Contempt in the Second Degree, branch (1) is GRANTED, and it is

ORDERED, that Count One, PL §215.50(3), is hereby DISMISSED.

As to branch (2), the People do not raise any objection to the Defendant's request for [*4]suppression or, in the alternative, for a Huntley/Dunaway hearing. The defense maintains, therefore, that the Court should summarily suppress the statement as the People have conceded the Defendant's allegations.

While it is not lost on the Court that the People fail to specifically object to the request for suppression, the People do set forth background factual claims regarding these incidents. They claim that the Defendant committed the charged crimes, which, if true, would suggest there was probable cause to question and arrest the Defendant. They further claim that the Defendant was read his Miranda warnings prior to giving the statement, which would go to the issue of the voluntariness. Under these circumstances, the Court finds there exists a sufficient factual dispute to warrant a hearing on the Defendant's statement. Therefore, branch (2) is GRANTED to the extent a HUNTLEY/DUNAWAY hearing shall be held, and it is

ORDERED, all parties shall appear before this Court on July 6, 2026 at 9:30 a.m. prepared to schedule an expedited hearing in the event there is no disposition.

Branch (3) is GRANTED to the extent a Sandoval hearing will be held on the eve of trial.

Defendant's request for a Molineux/Ventimiglia hearing at branches (4) and (5) are presently DENIED in the absence of notice by the People of their intent to offer such evidence on their direct case at trial.

Defendant's attempt to reserve the right to make further motions is DENIED as premature (see CPL §255.20[2],[3]).

Any remaining arguments advanced by Defendant, not specifically addressed herein, have been considered and are found to be without merit.

This constitutes the decision and order of this Court.

SO ORDERED.

HON. JACLENE AGAZARIAN

District Court Judge

Dated: June 8, 2026