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People v. Rech

County Court, Monroe County

May 17, 2017

The People of the State of New York Appellant,
Michael B. Rech, Respondent.


          For the People: SANDRA DOORLEY, ESQ. Monroe County District Attorney DANIEL STROLLO, ESQ. Assistant District Attorney

          For the Defendant: MICHAEL RECH - Pro Se

          Christopher S. Ciaccio, J.

         The People appeal from a Decision and Order of Wheatland Town Court [1] (Litteer, J) dismissing all charges against the defendant on the rationale that law enforcement, in entering the defendant's home and arresting the defendant for refusing to hand over his child pursuant to a custody Order of Acting State Supreme Justice John Owens, had committed a "violation of the 4th amendment, " or a " Payton violation."

         Because law enforcement cannot, absent a warrant of arrest following a judicial finding of contempt, seize and arrest a person because he fails to comply with the terms of a custody order, the Decision and Order of the lower court dismissing the accusatory instrument is Affirmed and the appeal Dismissed.

         As a preliminary matter, the People argue that the appeal is authorized by Criminal Procedure Law (CPL) § 450.20(1), because the decision was "entered before the commencement of trial and finally terminates the People's case" (People v. Edwards, 78 A.D.2d 582');">78 A.D.2d 582 [4th Dept 1980). Moreover, as stated by the Court of Appeals, the People have the "right to at least one appeal when a motion to dismiss is granted on any ground, " and "may appeal prior to conviction if the trial court's order terminates the prosecution" (People v. Coppa, 45 N.Y.2d 244, 249 {1978]).

         The Court agrees. The lower court's dismissal terminated the prosecution, giving rise to a right to appeal under CPL § 450.20(1).

         As set forth in the papers attached to the accusatory instrument, the defendant, engaged in an ongoing dispute with his ex-wife Jennifer Rech (nka Szczublewski) over the custody of their child, had ignored an Order dated March 14, 2016 of Acting State Supreme Court Justice John M. Owens directing the defendant to "return the parties' child" to his mother, which transfer was to occur at a Tim Horton's Shop located on Buffalo Road in North Chili on or before March 14, 2016 at 6:30 p.m. The Order directed that Service of the Order was deemed to be good and sufficient if accomplished by facsimile upon the defendant's attorney by 6:00 p.m. on March 14.

         The defendant did not show up at Tim Horton's. Ms. Rech immediately applied to Judge Owens for another Order To Show Cause, which he signed on March 15, 2016. This Order, in addition to directing the defendant to appear before the Court to answer a charge of contempt, stated that the defendant was to return the child to the mother by 4:00 p.m. on March 15, 2016, and that if he did not, then the Monroe County Sheriff's Office was to "immediately enter the defendant's home located at 5 Hilltop Drive to effectuate the return of (child) to the Plaintiff." Service was to be deemed good and sufficient if made by email upon defendant's attorney on or before March 15 by 3:45 p.m.

         According to the factual account in the accusatory instrument, Monroe County Sheriff's Deputies went to defendant's home at 4:13 p.m., and served the defendant with the Order. The Defendant "intentionally refused to comply with said order, " and upon being advised that he would be arrested, "became agitated with deputies, and while being taken to custody. attempted to pull away from deputies as well as punch a. Deputy as he was being taken into custody." He was brought before Chili Town Court for arraignment that same evening and charged with one count each of a violation of Obstructing Governmental Administration in the Second Degree (Penal Law [PL] §195.05; Resisting Arrest (PL § 205.30); and Harassment in the Second Degree (PL § 240.26[1]).

         Proceeding pro se, defendant moved by Notice of Motion and an unsworn "Affirmation" for various forms of relief, including dismissal on the grounds of facial insufficiency and defective instrument, and in a supplemental affidavit, dismissal due to a Brady violation and a "Confrontation Clause violation." He never moved for suppression of evidence, not surprisingly, because no evidence was seized (except perhaps the child). However, he alleged in his "Statement of Facts" that the deputies did not possess a warrant and that he did not consent to their entry or to his arrest, citing to Payton v New York, 445 U.S. 573 (1980), which he asserted "stands for the rule that in the absence exigent circumstances, the Fourth Amendment prohibits law enforcement officials from making a warrantless and nonconsensual entry into a suspect's home to arrest him."

         The People in their responsive papers denied the factual allegations.

         At motion argument, the Court raised, apparently sua sponte, how it was that the deputies did not commit a "violation of the 4th Amendment" by entering the house without a warrant, and questioning whether an Order from a civil court had the same force and effect as a search warrant. After "considering the arguments, " "doing research, " and discussing the matter with "many Courts that are higher up and (that) they all came to the same conclusion, " he found that there was a "violation of the 4th ...

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