As Wikipedia notes, a no contact order (or order of protection) “is a form of legal injunction that requires a party to do, or to refrain from doing, certain acts.” In the U.S.,
protective order statutes permit the court to order the abuser to stay away from someone, their home, their workplace or their school . . . and to stop contacting them. Victims generally also can ask the court to order that all contact, whether by telephone, notes, mail, fax, email or delivery of flowers or gifts, is prohibited (`no contact’ provisions).
And as Wikipedia also notes, a party “that refuses to comply with [such] an order faces criminal or civil penalties and may have to pay damages or accept sanctions.”
That brings us to People v. Welte, __ N.Y.S.2d __, 2011 WL 1331900 (Justice Court, Town of Webster, New York 2011). At some unspecified date, Carl M. Welte was charged “with Criminal Contempt in the Second Degree” in violation of New York Penal Law § 215.50(3) and “Stalking in the Fourth Degree” in violation of New York Penal Law § 120.45(2). People v. Welte, supra.
It was alleged that on November 4, 2010 [Welte] violated paragraph `14’ of a `no contact’ order of protection issued on July 15, 2008 by Judicial Hearing Officer Sidney T. Farber of Monroe Family Court [that was in effect until March 9, 2011]. In particular the order of protection directed that [Welte] have no contact with Maureen Perry, the mother of his two children `including personal or through third person’.
The criminal complaints alleged that [Welte] violated the statutes in question on November 4, 2010 by gaining `access to Maureen's Friend List on Facebook and began to contact and communicate to these friends and family members accusing Maureen L. Perry of using their children against their father to prevent [him] from seeing or communicating with their two children.’ The supporting deposition signed by the complainant states `Carl gained access to my friends list' on facebook and began to send out letters accusing me of using our children against Carl and preventing Carl from contacting or visiting with them.’
People v. Welte, supra.
Welte (and his lawyer) moved to dismiss the charges against him “as being facially insufficient pursuant to” New York Criminal Procedure Law § 170.30(1)(a). People v. Welte, supra. Section 170.30(1)(a) states that, upon a motion made by the defendant, a court can dismiss a criminal complaint if it “is defective, within the meaning of” § 170.35 of the New York Criminal Procedure Law. Section 170.35(1)(a), which seems to be the provision Welte relied on, says a court can dismiss a charging document (such as a criminal complaint or an information) if “it is not sufficient on its face pursuant to the requirements of” § 100.40 of the New York Criminal Procedure Law.
Section 100.40 says a complaint is “sufficient on its face” if it “substantially conforms to the requirements prescribed in” § 100.15 of the New York Criminal Procedure Code. Section 100.15(1) says a charging document (including a complaint” must “contain an accusatory part and a factual part.” Sections 100.15(2)-(3) say that the accusatory part must designate the offense(s) charged and the factual part “must contain a statement of the complainant alleging facts of an evidentiary character tending to support the charges.”
And that brings us back to the Welte case. Remember, he was charged with criminal contempt and stalking and moved to dismiss both charges. The judge began his analysis of Welte’s motion to dismiss the charges by noting that it raised two issues:
Does communication to a person's acquaintances listed as friends on a facebook account violate a no contact order of protection? Does communication to a person's acquaintances listed as friends on a facebook account constitute stalking in the fourth degree?
People v. Welte, supra. He then proceeded to analyze the issues, in this order.
Welte was charged with criminal contempt in violation of New York Penal Law § 215.50(3), which says a person is guilty of “criminal contempt in the second degree when he engages in . . . [i]ntentional disobedience or resistance to the lawful process or other mandate of a court”. The judge began his analysis of this issue by noting it was
uncontroverted that [Welte] obtained a list of the complainant's friends from [her] Facebook account. He then contacted each of these individuals, advising them that the complainant, Maureen Perry, was denying him access to his children. The supposition is that by doing so, [Welte] was intentionally indirectly contacting the mother of his children, because she would hear of the allegations from her said friends and family.
People v. Welte, supra.
The judge then explained that “[c]hanges in technology, including the way people communicate, continue to present unique challenges to the courts.” People v. Welte, supra. Since he found “no reported cases of anyone charged with violating an order or protection by accessing Facebook”, he decided to rely on cases in which defendants were “charged with indirectly contacting protected persons by making statements to others.” People v. Welte, supra. In People v. Pucilowski, 4 Misc.3d 1019A, 798 N.Y.S.2d 347 (2004), the defendant, “who worked in the same building as his wife, was charged with Criminal Contempt 2d Degree for speaking with an employee of his wife.” People v. Welte, supra. The defendant had been “directed by an order of protection” not to contact co-workers, friends and/or neighbors of his wife. People v. Welte, supra.
The Pucilowski court found the defendant “not guilty of Criminal Contempt” because it held that “any ambiguity in . . . an order of protection must be resolved in favor of the defendant.” People v. Welte, supra. The court found the language of the protection order at issue in that case ambiguous as it “pertained to the wife’s co-workers” because there was no evidence in the record that the court which issued the order specifically “admonished” Pucilowski “to promptly break of any communication with such a person once begun” and because the conversation did not amount to harassment and did not involve Pucilowski’s threatening his wife with physical harm. People v. Welte, supra.
The Welte judge reviewed another case involving analogous circumstances in which a court granted a defendant’s motion to dismiss the document charging him with criminal contempt, and then found that Welte’s conduct in contacting Perry’s friends and family
via her `Friends List’ would not in the normal course of events violate any provision of law. . . . [He] was not directed to stay away from the friends and family of the complainant. Lastly, the accusatory instruments do not allege that [he] was intentionally attempting to contact the complainant through her friends list, only that [Welte] was not to contact her through a third person.
As a result the [accusatory instruments] neither set out `. . .facts of an evidentiary character supporting or tending to support the charges’ as required by [§ 100.15(3)], nor does the information allege `. . . every element of the offense charged and the defendant's commission thereof’ as required by [§ 100.40(1)(c)].
People v. Welte, supra. The judge therefore dismissed this charge. People v. Welte, supra.
He then addressed the stalking charge. New York Penal Law § 120.45(2) defines stalking as intentionally “and for no legitimate purpose,” engaging in “a course of conduct directed at a specific person” if the defendant “knows or reasonably should know such conduct (i) “causes material harm to the mental or emotional health of such person” and (ii) “consists of following, telephoning or initiating communication or contact with such person, a member of such person's immediate family or a third party with whom such person is acquainted” and the defendant was “previously clearly informed to cease that conduct”. People v. Welte, supra.
This is how the court summarized Welte’s argument for dismissing this charge:
[He] argues that the factual portion of the information and the supporting deposition fails to meet the requirements of [§ 100.40(1)(c)] which requires that the `non-hearsay allegations of the factual part of the information and/or of any supporting depositions establish, if true, every element of the offense charged and the defendant's commission thereof.’ [Welte claims] the [charge fails] to set out four non-hearsay allegations, which if true, would establish them as elements of offense of Stalking in the 4th Degree, i.e, lack of legitimate purpose, course of conduct, material harm and a previous demand to cease the specific conduct.
People v. Welte, supra. The judge then examined each of the four elements.
He noted, first, that neither “the complaint nor the supporting deposition” alleged that Welte’s “communications to the complainant’s family and friends lacked a legitimate purpose”, nor “did the accusatory instruments suggest why that was so.” People v. Welte, supra. The judge reviewed a New York Supreme Court case in which that court dismissed an accusatory instrument charging that defendant with harassment because the charging document recited the defendant’s threat to the complaining parties but did not include non-hearsay allegations demonstrating that it had no legitimate purpose. People v. Welte, supra.
Next, the judge noted that the “course of conduct” element of Stalking in the Fourth Degree “`may reasonably be interpreted to mean a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.’” People v. Welte, supra (quoting People v. Payton, 161 Misc.2d 170, 612 N.Y.S.2d 815 (1994)). He explained that the charging document in this case contained no allegation
as to the number of `letters’ that were sent to the family and friends of the complainant. Presumably every letter would be a separate event despite the allegation that the contacts took place on one day. Nevertheless, there is no allegation that [Welte] engaged in a course of conduct toward the complainant or her immediate family or a third party with whom [she] is acquainted. Instead the accusatory instruments rely solely on the existence of the said order of protection.
People v. Welte, supra. You can probably tell where this is going, but we still have two elements to examine.
With regard to the third element, the judge noted that “[n]either the factual part of the complaint nor the supporting deposition allege non-hearsay allegations that would establish, if true, that [Welte] knew or reasonably should have known that his conduct would cause material harm to the mental or emotional health of the complainant” as proscribed by the New York stalking statute. People v. Welte, supra. He then noted that the New York Court of Appeals has held “that the failure to allege one of the elements of the crime is fatal to the sufficiency of an information”. People v. Welte, supra (citing People v. Casey, 95 N.Y.2d 354, 717 N.Y.S.2d 88 (2000)).
Finally, the judge considered the fourth element – Welte’s having been ordered to cease the conduct at issue. People v. Welte, supra. He noted that the Family Court Order of Protection entered in this matter ordered Welte to
`have no contact with Petitioner including personal or through third person’. The Order of Protection does not order [Welte] to have no contact with the individuals that happen to be listed on the complainant's Facebook Account. Nor does it order [him] to have no contact with the family, friends or acquaintances of the complainant.
People v. Welte, supra. The judge referred back to the Pucilowski court’s finding that in order to convict someone of violating an order of protection, the “`proscribed conduct must be carefully and clearly delineated’” by the court that enters the order. People v. Welte, supra (quoting People v. Pucilowski, supra). He then noted that the “accusatory instrument” that charged Welte with stalking “fails to allege that [he] was previously ordered to refrain from the action in question, that is not to contact the family and/or friends of the complainant as listed on the complainant's Facebook Account.” People v. Welte, supra.
As you’ve probably figured out, the judge also dismissed the stalking charge against Welte, thereby ending the prosecution. People v. Welte, supra.
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