DECISION AND ORDER On August 20, 2019, Defendant moved to dismiss the accusatory instrument for facial insufficiency pursuant to CPL §170.30(1)(a) and CPL §170.35(1)(a). Opposition was filed by the People on October 4, 2019. Defendant is charged with two counts of Criminal Contempt in the Second Degree (PL §215.50[3]). The accusatory instrument alleges that on two occasions, Defendant stopped his vehicle in front of complainant’s residence, in violation of an order of protection directing Defendant to stay away from complainant and her residence. Defendant contends that the allegations contained in the accusatory instrument do not sufficiently establish Criminal Contempt in the Second Degree because his action of stopping his vehicle in front of complainant’s residence does not constitute a willful violation of the order of protection. Defendant further asserts that the accusatory instrument is defective because the complainant’s last name is spelled incorrectly on the order of protection. The People oppose the motion and assert that Defendant’s alleged behavior sufficiently establishes a willful violation and his remaining issues are to be resolved by a trier of fact. Facial sufficiency of a misdemeanor information is determined by the factual portion of the accusatory instrument and any supporting depositions. It must contain non-hearsay allegations of an evidentiary nature that provide reasonable cause to believe that the defendant committed the offense or offenses charged. The non-hearsay allegations must establish, if true, every element of the offense (See CPL 100.15 [3]; CPL 100.20; CPL 100.40 [1]; People v. Alejandro, 70 NY2d 133, 137 [1987]). The prima facie case requirement for the facial sufficiency of an information “is not the same as the burden of proof beyond a reasonable doubt required at trial, nor does it rise to the level of legally sufficient evidence that is necessary to survive a motion to dismiss based on the proof presented at trial” (People v. Smalls, 26 NY3d 1064, 1066 [2015] [internal citations omitted]). “So long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading” (People v. Casey, 95 NY2d 354, 360 [2000] [internal citations omitted]). Penal Law §215.50(3) states that a person is guilty of Criminal Contempt in the Second Degree when he engaged in the following conduct: “Intentional disobedience or resistance to the lawful process or other mandate of a court” (See PL §215.50[3]). “It is well settled that criminal contempt is established when there is a clear and definite order of the court, the contemnor knows of the order, and he willfully disobeys it” (Holtzman v. Beatty, 97 A.D.2d 79 [2d Dept 1983]). Accordingly, this Court finds that the accusatory instrument sufficiently sets forth allegations to establish each element of the offense of Criminal Contempt in the Second Degree on its face. The accusatory instrument established (1) that an order of protection existed on the date of the occurrence, (2) Defendant was aware of the order, and (3) Defendant willfully disobeyed it. Defendant does not dispute the existence of the order of protection or his knowledge of said order but rather asserts that sitting in a parked vehicle outside of complainant’s residence does not constitute a willful violation of the order of protection. His arguments, that he did not violate the order because his behavior was seemingly innocent, a mere chance encounter and required additional action in order to be considered a violation, are unavailing. “Because this is not a trial, however, there is no way of knowing whether the defendant had any legitimate reason for being on the same street as the complainant, whether there is any innocent explanation for the defendant’s conduct, or whether there is even any truth to the complainant’s allegations” (See People v. Nawaz, 183 Misc. 2d 195, 198 [Crim. Ct. Kings County 1999]). These are issues best left for the trier of fact to determine. The caselaw cited by Defendant does not support dismissal. In People v. Gonzalez, relied upon by Defendant, the Second Department held that there was insufficient evidence to establish that Defendant violated his order to protection when he walked by the complainant’s residence on his way to his own residence and reversed his conviction of Criminal Contempt in the Second Degree (See People v. Gonzalez, 200 A.D.2d 759 (2d Dept 1994). Similarly, here, Defendant asserts that there were several buildings and stores in close proximity to complainant’s residence. However, this merely presents an issue of fact for trial (See People v. Nawaz, 183 Misc. 2d 195 [Crim. Ct. Kings County 1999]). Next, Defendant claims that this matter should be dismissed because the underlying order of protection spelled complainant’s last name as “Wydner” instead of “Wynder,” which is inconsistent with the accusatory instrument; and thus, was never properly converted. This argument, too, is without merit. A typographical error in the spelling of a name does not constitute a jurisdictional defect and does not prevent the accusatory instrument from being converted (See People v. Vargas, 55 Misc 3d 130 [A] [App Term, 1st Dept 2017]). The spelling error, which only involved two letters swapped in complainant’s last name, did not prevent Defendant from notice of the order of protection. There is no allegation by Defendant as to any confusion at arraignment with regard to the complaining witness’ identity. Defendant was allocuted for a temporary order of protection and at no time did Defendant or counsel object to the identity of the complaining witness. In fact, the order of protection indicates that Defendant and complainant have a child in common. Defendant’s reliance on the criminal court decision of People v. Peluso, 192 Misc. 2d 33 (Crim Ct, Kings County, 2017) is misplaced as the issue with the order of protection was not with the spelling of complainant’s name but with Defendant’s knowledge of the order of protection, which is not at issue here. Accordingly, Defendant’s motion is denied. The foregoing constitutes the Decision and Order of the court. Dated: November 7, 2019 Kings County, New York
