DECISION AND ORDER Pending before the Court are the People’s application to restore this case to the trial calendar and Defendant’s motion for a declaration that the condition upon which he was granted an adjournment in contemplation of dismissal is unenforceable. For the reasons set forth herein, the People’s application is granted and Defendant’s motion is denied. Papers considered Defendant’s letter motion of October 28, 2019. People’s memorandum of law submitted November 18, 2019, with exhibits. Procedural History Defendant Channing Creecy was arraigned by this Court on April 3, 2018, on a charge of harassment in the first degree in violation of Penal Law §240.25, for communicating threats to his wife, including the threat, “Brick by brick, dollar by dollar, body by body, I’m going to start with you, and I’m going to run through every person that has ever helped you.” At the arraignment, the Court entered a temporary order of protection, which, as extended, remains in effect. It requires, among other things, that Defendant stay away from, and have no contact with, his wife, with whom he was then engaged in divorce proceedings, and his children, subject to any order of the Family Court or Supreme Court in a related custody, visitation or child abuse or neglect proceeding. On July 23, 2018, the People filed a superseding information reducing the charge to harassment in the second degree in violation of Penal Law §240.26. By motion dated September 10, 2018, Defendant moved to dismiss the charge on the ground that the quoted statement did not constitute a threat of imminent harm and was too ambiguous to violate the statute. This Court denied that motion on October 29, 2018 in an opinion reported at 1541072511NY 18040014 (N.Y.L.J. Nov. 5, 2018). On April 15, 2019, the date scheduled for trial, the People offered to adjourn the case in contemplation of dismissal, on condition that Defendant include in any Family or Supreme Court order in his pending divorce proceeding a provision that he would not own, carry or possess any firearms. As the prosecutor stated, and Defendant agreed, the ACD is “Condition[ed] upon the defendant agreeing to as to [sic] the divorce stipulation the defendant will not own, carry or possess any firearms. If he does not include this language in the divorce stipulation within a timely manner, then we would violate him on the ACD. (Transcript of Proceedings, April 15, 2019, p. 3). More precisely, the agreed condition of the ACD was that Defendant include in his divorce stipulation or agreement that: “He shall not possess, utilize and/or store, he can’t either keep any firearms whatsoever either in his home, his vehicle, or storage facility, etc. And the husband shall ensure that no firearms whatsoever are to be possessed, purchased, handled or stored, obtained or kept by any other person that the husband’s met, whether it’s in any jurisdiction, whether domestic or international.” (Id., p. 4) The Applicable Law The grant of adjournments in contemplation of dismissal is governed by section 170.55 of the Criminal Procedure Law, which provides that such adjournments may be granted only upon consent of the parties, and that an adjournment may be conditioned upon the imposition of, and compliance with, certain specified conditions. Conditions explicitly contemplated by the statute include issuance of a temporary order of protection, community service, or participation in dispute resolution or in mental health, spousal abuse, family violence, or other education reform programs. CPL §175.55 (4)-(7). The statute is silent on whether such conditions are exemplary, illustrative, or exclusive. The Present Applications On June 17, 2019, within the time permitted by CPL §170.55(2), the People moved to restore the case, and its charge of harassment in the second degree, to the calendar, based on Defendant’s failure to comply with the condition that he include in his divorce settlement a condition banning him from possessing weapons. Defendant does not dispute that he has declined to include such a provision, but now argues that, because the permissible duration of a protective order issued by this Court on a misdemeanor charge may not exceed one year, the condition is illegal. The questions whether an adjournment in contemplation of dismissal may be accompanied by a condition not explicitly enumerated in section 170.55, and whether such a condition may extend beyond the length of an order of protection. appear to be matters of first impression. The statute is silent on those issues, and the authorities provide scant and inconclusive authority. While it is established that the Court may not impose a condition in violation of a defendant’s Constitutional rights of expression, see People v. Wilmot, 104 Misc. 2d 412, 428 N.Y.S.2d 568 (NYC Crim. Ct., Kings Co. 1980), or to compel a release from civil liability, see, Cowles v. Brownell, 73 N.Y.2d 382, 540 N.Y.S.2d 973 (1989), no such claim is made here. The People’s discretion to seek restoration is very broad, see People v. DiBono, 82 Misc. 2d 177 (NYC Crim. Ct., N.Y. Co. 1975). Moreover, while one of the conditions described in the statute, §170.55 (6), limits the duration of community service to the length of the adjournment, the other conditions authorized by the statute, §170.55 (4), (5), (6-a), and (7), do not. In the absence of statutory language defining the enumerated conditions of an adjournment in contemplation of dismissal to be exclusive, this Court concludes that they are not exclusive. That is not, however, the end of the inquiry, for the Court’s power in this area is not unlimited. In the absence of sufficient statutory or decisional guidance, the factors upon which a condition should be evaluated appear to this Court to be the following: (1) The relation of the condition to the underlying charge (2) The reasonableness of the condition, in nature and duration (3) The defendant’s consent to the condition (4) The public interest in safety and the fair administration of justice. Evaluating these factors in the current case, the Court finds: (1) The condition is closely related to the underlying charge of harassment. Defendant is charged with communicating a violent threat to his then-spouse. His language was, Defendant concedes, derived from a violent action movie in which the protagonist is pictured carrying an automatic weapon. The People assert that Defendant maintained a shotgun at the marital residence, and possessed enough ammunition that a hand truck was required to remove it, and he owned additional firearms out of state. The alleged threat was sufficiently menacing to support the issuance of a temporary order of protection barring the Defendant from possessing weapons during the pendency of the case. In these circumstances, the condition is directly related to the underlying charge. (2) The nature of the condition, which is indisputably within the power of the Court to impose, is reasonable and commonplace in cases of domestic violence. It is the condition’s duration that presents a closer question. The complainant, Defendant’s then-wife, maintains that Defendant made multiple threats of violence over the past year, and that he has a history of intoxication, which is corroborated by proof of defendant’s prior conviction of a violation of Vehicle and Traffic Law §1192(1) in 2016. Moreover, Defendant maintained weapons in two states, owned elaborate furnishings for the storage of his weapons and ammunition, and is charged with communicating a violent threat. Defendant makes no argument that he has undertaken any counseling for anger management or mental health, but argues only a desire to have his ability to possess weapons restored to him. On balance, I cannot conclude that an open-ended weapons possession ban, which would presumably be subject to modification by the Supreme or Family Court on suitable application, is unreasonable. (3) On the related issue of consent, Defendant made no objection to the imposition of the condition at the time the People offered the ACD — which, indeed, could not be imposed over his objection. Having achieved his goal of obtaining the dismissal of the charge against him pending his law-abiding behavior for the period of the ACD, Defendant now reverses his position, and seeks the benefit of his bargain without having to comply with the condition to which he agreed. (4) As in any criminal case, the Court is empowered, if not obliged, to consider the effect of its sentence on the community at large, including the alleged victim, and on the perception of justice. Cf., CPL§210.40(g) and (h). Indeed, CPL §170.55(2) makes specific reference to the purpose of an adjournment in contemplation of dismissal as “in furtherance of justice.” Here, the condition serves the purpose of providing protection to the alleged victim and her family, as well as to the public at large, by precluding Defendant’s access to his arsenal of weapons. Taking all these factors into consideration, I find that the imposition of the condition that Defendant include within his divorce settlement a condition that he refrain from possessing weapons, is reasonable and legal. Defendant’s argument that this Court cannot enforce the terms of a protective order beyond the length of the adjournment misses the mark. It is the Family or Supreme Court that will be the enforcing entity here — which is the very reason the People required the condition to be included in those Courts’ orders. It is the opinion of this Court that it is permissible to do so. For the foregoing reasons, the People’s application to restore this matter to the calendar for trial is granted, and Defendant’s motion to declare the condition unenforceable is denied. The parties shall appear at the call of calendar on Wednesday, January 22, 2020, for the scheduling of a trial date and other proceedings consistent with this order. IT IS SO ORDERED. Dated: January 6, 2020 Mamaroneck, New York
