¶1I respectfully dissent in part. The third count of the indictment, as limited by the People’s bill of particulars, charges defendant with criminal contempt in the first degree (Penal Law § 215.51 [b] [i]) for “intentionally placing or attempting to place [his wife] in reasonable fear of physical injury, serious physical injury or death by displaying a loaded shotgun,” thereby violating a “no contact” order of protection. The prosecutor stated on summation that defendant violated the order of protection when he approached his wife’s house carrying a shotgun and talked to his wife through the door, and also violated the order of protection when he broke into the house and entered with the shotgun. “Thus, '[i]t is impossible to ascertain . . . whether different jurors convicted defendant based on different acts’ ” under the third count of the indictment (People v Burns, 303 AD2d 1032, 1033 [2003], quoting People v McNab, 167 AD2d 858, 858 [1990]). Because defendant was charged with a single count of criminal contempt in the first degree, and the jury may have found him guilty based on distinct acts characterized by the prosecutor as violating the order of protection, “defendant’s right to have charges preferred by the [gjrand Ijjury rather than the prosecutor at trial was violated” (People v George, 255 AD2d 881, 881 [1998]). I would therefore modify the judgment by reversing that part convicting defendant of criminal contempt in the first degree *1015and dismissing the third count of the indictment. Present— Pigott, Jr., PJ., Green, Kehoe, Martoche and Hayes, JJ.
19 A.D.3d 1013
People v. Swail
Appellate Division of the Supreme Court of the State of New York
Decided June 10, 2005
Appellate Division of the Supreme Court of the State of New York · decided 2005-06-10
Cited by 2 later decisions — most recently October 2010
Key passage — most relied on by later courts
“The third count of the indictment, as limited by the People’s bill of particulars, charges defendant with criminal contempt in the first degree (Penal Law § 215.51(b)(1)) for “intentionally placing or attempting to place [his wife] in reasonable fear of physical injury, serious physical injury or death by displaying a loaded shotgun,” thereby violating a “no contact” order of protection. The prosecutor stated on summation that defendant violated the order of protection when he approached his wife’s house carrying a shotgun and talked to his wife through the door, and also violated the order of protection when he broke into the house and entered with the shotgun. “Thus, ‘[i]t is impossible to ascertain ... whether different jurors convicted defendant based on different acts’ ” under the third count of the indictment (People v. Burns, 303 A.D.2d 1032, 1033 , 757 N.Y.S.2d 199 [ (4th Dept. 2003) ], quoting People v. Mc Nab, 167 A.D.2d 858, 858 , 562 N.Y.S.2d 590 [ (4th Dept.1990) ]). Because defendant was charged with a single count of criminal contempt in the first degree, and the jury may have found him guilty based on distinct acts characterized by the prosecutor as violating the order of protection, “defendant’s right to have charges preferred by the[g]rand [j]ury rather than the prosecutor at trial was violated” (People v. George, 255 A.D.2d 881, 881 , 681 N.Y.S.2d 717 [(4th Dept. 1998) ]).”
quoted by 1 later decision, including SWAIL v. Hunt
Good law ✅— No negative treatment on recordhow we know
Decided 2005-06-10
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