Lemons: Instagram was Electronic Communication that was Prohibited by a Court Order of Protection


Orders of Protection are often doled out routinely in courts throughout New York State. Such Orders of Protection may deprive a defendant of his Second Amendment right to bear arms immediately. Others may effectively operate as an eviction if the stay away Order of Protection requires you to stay away from a spouse or intimate partner of which one shares a residence. New York Orders of Protection should not merely be signed and disregarded: If you are facing a situation where you may be subject to an Order of Protection, call the Law Offices of Cory H. Morris otherwise, you may be facing the loss of your constitutional rights, your liberty and/or the right to live in your home or dwelling shared with the protected party.

Here an Order of Protection was issued "[t]hat order prohibited the defendant from contacting the complainant by any means, including electronic means." Pp. 1. A New York Order of Protection is mandatory and it does not matter who initiated contact or what the purpose of the contact was for if such contact is prohibited. In other words, the Order of Protection does not have exceptions (unless such are provided and detailed in the Order). The other thing is that, this piece of paper that Defendants are often forced to sign in open Court, New York Orders of Protection carry with it the full weight of Court. The Defendant now can be charged with not only the underlying crime but also an additional crime - Contempt of Court. Contact means contact - even if nuanced or brand new.

As the Court noted, "The case raises a question of first impression: Does a defendant violate a full order of protection by making a request on Instagram to follow the complainant's Instagram page? Because the answer to this question is clearly "yes," defendant's motion to dismiss for facial insufficiency is DENIED." Pp. 1.

What happened is that "On September 28, 2015, defendant made a request to follow the complainant's Instagram page, which triggered a notification to the complainant that the defendant had made the request." Pp. 1. The Defendant was charged with Criminal Contempt in the Second Degree. The defendant challenges the facial sufficiency of the complaint:

A misdemeanor information serves the same role in a misdemeanor prosecution that an indictment serves in a felony prosecution: It ensures that a legally sufficient case can be made against the defendant. People v. Dumay, 23 NY3d 518 (2014); People v. Alejandro, 70 NY2d 133, 138-39 (1987). Accordingly, a misdemeanor information must set forth "nonhearsay allegations which, if true, establish every element of the offense charged and the defendant's commission thereof." People v. Kalin, 12 NY3d 225, 228-29 (2009) (citing People v. Henderson, 92 NY2d 677, 679 (1999) and CPL 100.40 (1)(c)). This is known as "the prima facie case requirement." Kalin, 12N.Y.3d at 229.

The prima facie case requirement does not necessitate that the information allege facts that would prove defendant's guilt beyond a reasonable doubt. People v. Jennings, 69 NY2d 103, 115 (1986). Rather, the information need only contain allegations of fact that "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense." People v. Casey, 95 NY2d 354, 360 (2000). A court reviewing for facial insufficiency must subject the allegations in the information to a "fair and not overly restrictive or technical reading," id., assume that those allegations are true, and consider all reasonable inferences that may be drawn from them. CPL §§100.40, 100.15; People v. Jackson, 18 NY3d 738,(2012). See also Casey, 95 NY2d at 360. Under this standard, the information here is facially sufficient.

Instagram is clearly a means of communication. Although technology advances everyday, the Court finds that the Order of Protection prohibited electronic conduct such as Instagram contact. Accordingly, "a facial insufficiency motion should only be granted in a criminal contempt case involving the violation of an order of protection when the defect in the order is genuinely clear on its face." Pp. 4. The Court further rejects the Defendants contention that he did not actually contact her or, vis-a-vis Instagram, mean to have contact with her. Even so, "the order of protection also prohibited the defendant from communicating with the complainant through third parties, so even an indirect electronic communication that was made only to Instagram, but was then forwarded to the complainant, would still violate the order." Pp. 6

The Defendant's Motion to Dismiss is denied.

The case is People v. Lemons, 2015NY078026, NYLJ 1202756845493, at *1 (Crim., NY, Decided May 2, 2016)

#CriminalContemptintheSecondDegree #motiontodismiss #CriminalContempt #Instagram #OrderofProtection #NewYorkOrderofProtection

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