Legal Aid Society, Kew Gardens (Michele Maxian and Garrett Austin of counsel), for defendant.
Richard A. Brown, District Attorney of Queens County, Kew Gardens (Kim Petersen of counsel), for plaintiff.
Deborah Stevens Modica, J.
The defendant is charged in an information with attempted criminal contempt in the second degree (Penal Law §§ 110.00, 215.50 ) and aggravated harassment (Penal Law § 240.30 ) for conduct which occurred on October 31, 1999. It
is alleged that such conduct was in violation of an order of protection issued by a Family Court Judge, presiding over a domestic dispute action between the defendant and his child's mother, the complaining witness. The defendant now moves to dismiss the charge of attempted criminal contempt in the second degree on the ground that it is defective within the meaning of CPL 100.15. Specifically, the defendant argues that dismissal is required since this count fails to allege an essential element of the crime.
Penal Law § 215.50 (3), in pertinent part, provides that a person is guilty of criminal contempt in the second degree when he/she engages in the following conduct:
" Intentional 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."
According to the defendant, neither the accusatory part nor the factual portion of the information allege that this case did not involve or grow out of a labor dispute, an essential element of the crime the People were required to plead and prove. There is support for the defendant's claim that the " labor dispute" language of Penal Law § 215.50 (3) is an element of the crime. As the defendant notes, the Appellate Division, Third Department, has interpreted this language to be an element of the crime. (See People v Kirkham, 273 A.D.2d 509 [3d Dept. 2000].) This is based on the principle stated in People v Kohut (30 N.Y.2d 183 ) that whenever a statute defining a crime contains an exception, that exception is an element of the crime. " But when the exception is found outside the statute, the exception generally is a matter for the defendant to raise in defense, either under the general issue or by affirmative defense." (See People v Kohut, supra, at 187.) Although this Court does not agree with the result reached in Kirkham, given the absence of any other appellate decisions, especially one from the Second Department, Appellate Term or Appellate Division, this Court is bound by the decision in Kirkham. (See Mountain View Coach Lines v Storms, 102 A.D.2d 663 [2d Dept. 1994]; cf. Duffy v Horton Mem. Hosp., 66 N.Y.2d 473 .) Nevertheless, since there is no Second Department case dealing with this issue, the Court takes this time to write in order to express its views on the subject.
First, although the rule stated in Kohut has been described as " bright line law" (see e.g. People v Bingham, 263 A.D.2d 611 [3d Dept. 1999]), that statement is not entirely true. For
example, that rule must yield to clear legislative intent to the contrary, as evidenced by the affirmative defenses contained in Penal Law § 125.25 (1) (a) and (3) and § 160.15 (4), which, it should be noted, are denominated as exceptions, but are not considered to be elements of the crimes that must be pleaded and proven by the People. As far as this case is concerned, a review of the legislative history underlying the inclusion of the labor language into the Penal Law demonstrates that it was not intended to be an element of the crime.
The crime of criminal contempt was originally created by the Legislature with the enactment of the Penal Code in 1881. (See L 1881, chs 676, 680, § 143.) In 1909, the Penal Code was replaced by the Penal Law of 1909 and the crime of criminal contempt was moved, verbatim, to Penal Law of ...