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PHONE CALLS TO THE PROTECTED PERSON SUPPORTED CRIMINAL CONTEMPT SECOND DEGREE BUT NOT CRIMINAL CONTEMPT FIRST DEGREE (FOURTH DEPT).

The Fourth Department determined phone calls, as opposed to “contact with the protected person,” did not support the contempt first degree convictions. However the phone calls did support contempt second degree:

The … five counts of criminal contempt in the first degree … are based on evidence establishing that an order of protection had been issued against defendant for the benefit of a person and that on five occasions defendant made telephone calls from the Monroe County Jail to that person. … … With respect to those counts, the People were required to establish that defendant committed the crime of criminal contempt in the second degree … , and that he did so “by violating that part of a duly served order of protection . . . which requires the . . . defendant to stay away from the person or persons on whose behalf the order was issued” … . Here, defendant was in jail when the calls at issue were made and the People failed to “prove[], beyond a reasonable doubt, that defendant had any contact with the protected person during the charged incident[s]” … . People v Caldwell, 2022 NY Slip Op 07325, Fourth Dept 12-23-22

Practice Point: Here criminal contempt first degree required proof defendant failed to “stay away” from the protected person. That portion of the order was not violated by defendant’s phone calls to the protected person (which supported convictions for criminal contempt second degree).

 

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