York City Legal Aid Society (Steven Berko), for appellant.
County District Attorney (John M. Castellano, Johnnette
Traill, Joseph N. Ferdenzi, Antara D. Kanth of counsel), for
PRESENT:: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P.
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 ) and harassment in
the second degree (Penal Law § 240.26 ),
that the judgments of conviction are reversed, on the law,
and the accusatory instruments are dismissed.
accusatory instrument charging defendant with criminal
contempt in the second degree (Penal Law § 215.50 )
and harassment in the second degree (Penal Law § 240.26
), 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
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.
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.
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.
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 ...