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People v. Lozado

Supreme Court of New York, Second Department

February 9, 2018

The People of the State of New York, Respondent,
v.
Fernando Lozado, Appellant.

          New York City Legal Aid Society (Steven Berko), for appellant.

          Queens County District Attorney (John M. Castellano, Johnnette Traill, Joseph N. Ferdenzi, Antara D. Kanth of counsel), for respondent.

          PRESENT:: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ

         Appeal from two judgments of the Criminal Court of the City of New York, Queens County (Stephanie L. Zaro, J.), rendered June 17, 2014. The judgments convicted defendant, after a nonjury trial, of attempted criminal contempt in the second degree (Penal Law §§ 110.00, 215.50 [3]) and harassment in the second degree (Penal Law § 240.26 [1]), respectively.

         ORDERED that the judgments of conviction are reversed, on the law, and the accusatory instruments are dismissed.

         In an accusatory instrument charging defendant with criminal contempt in the second degree (Penal Law § 215.50 [3]) and harassment in the second degree (Penal Law § 240.26 [1]), a detective alleged that, at about 7:10 p.m. on December 23, 2012, at the 115th Precinct in Queens, he had been informed by the complainant that:

"The defendant, Fernando Lozado, stated in sum and substance to the complainant who is that ni**er in the car, watch what is going to happen to him.
Deponent is further informed by the complainant that the above mentioned actions of the defendant caused the complainant annoyance and alarm.
Deponent states that he has reviewed an order of protection issued on behalf of the complainant... by the Honorable Judge Dennis Lebwohl of the Queens Family Court... on 12/7/2012 which is in effect until 02/15/2013 and which states, among other things, that the defendant, Fernando Lozado... must refrain from assault, menacing, threatening, intimidating, stalking, harassment, disorderly conduct... and any other criminal offense against the complainant.
Deponent states that [s]he has examined a copy of said order of protection and that the defendant is aware of said order of protection in that both parties were present in court."

         The order of protection had been issued after a family offense petition had been filed pursuant to article 8 of the Family Court Act on October 12, 2012.

         On April 1, 2014, the original accusatory instrument was replaced with two prosecutor's informations charging defendant with attempted criminal contempt in the second degree and harassment in the second degree, respectively.

         At a nonjury trial, the testimony established that defendant had custody of two of the complainant's children, one of whom was also defendant's child, and that the complainant had visitation rights. Furthermore, the complainant had obtained an order of protection in her favor and against defendant. As part of a Family Court order, the complainant had been directed to bring the two children to the 115th Precinct after weekends of visitation, where defendant would pick them up. The complainant testified that, at approximately 7:00 p.m. on Sunday, December 23, 2012, in front of the 115th Precinct in Queens, she was in a car service vehicle together with, among others, her current boyfriend and a child that she had had with that boyfriend. As she stepped out of the vehicle, defendant approached and said, "[w]ho is that ni**er in the car?" Defendant also said, "[w]atch what's going to happen to you, bitch." The complainant became scared because her "baby was there with the guy in the car and [defendant] threatened me." She went into the precinct and asked for help.

         Defendant moved to dismiss the charges at the close of the People's case, arguing that the People had failed to prove that defendant had attempted to intentionally disobey a lawful order by using the "n-word" to describe the complainant's boyfriend, who was in the car-service vehicle at the precinct. The boyfriend did not have an order of protection against defendant. Counsel also argued that the complainant's testimony ...


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