THE INDICTMENT COUNT CHARGING AGGRAVATED FAMILY OFFENSE DID NOT SPECIFY WHICH OF THE LISTED OFFENSES WAS THE BASIS OF THE CHARGE, RENDERING THE COUNT JURISDICTIONALLY DEFECTIVE (CT APP).
The Court of Appeals, in a full-fledged opinion by Judge Troutman, determined the count of the indictment charging aggravated family offense (Penal Law 240.75) was jurisdictionally defective because it did not specify which of the offenses listed in the statute was the basis of the charge:
A defendant commits the crime of aggravated family offense pursuant to Penal Law § 240.75 when the defendant “commits a misdemeanor defined in subdivision two of this section as a specified offense and [the defendant] has been convicted of one or more specified offenses within the immediately preceding five years” (Penal Law § 240.75 ). Subdivision two of the statute contains 54 “specified offense[s],” 36 felonies and 18 misdemeanors … . To qualify as a specified offense, the defendant and the person against whom the offense was committed must be members of the same family or household as defined in CPL 530.11 (1) (see id. § 240.75 ) … . Thus, to commit the crime of aggravated family offense, a defendant must have been convicted of one or more of the specified offenses in subdivision two of the statute within the previous five years, the defendant must have currently committed one of the misdemeanor offenses listed in subdivision two, and both offenses must be committed against a member of the same family or household as the defendant.
Defendant contends that the failure to specify the current misdemeanor offense in the count of the indictment charging him with aggravated family offense rendered that count jurisdictionally defective … . We agree. People v Saenger, 2023 NY Slip Op 02735, CtApp 5-18-23
Practice Point: The aggravated family offense count did not specify the current misdemeanor offense on which the count was based, rendering the count jurisdictionally defective.
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