Is the Temporary Order of Protection Admissible If the Defendant Has Not Received It ?
In People v. Casey, 95 NY2d 354, 740 N.E.2d 233, 717 N.Y.S.2d 88 (2000), the defendant claimed that the People's failure to file the temporary order of protection rendered the accusatory instrument defective, because it failed to include non-hearsay allegations that a temporary order of protection had been issued and was in effect at the time of Casey's alleged conduct against the complainant.
The Court of Appeals rejected Casey's claims, because the complainant's supporting deposition states clearly and succinctly that a Temporary Order of Protection had been issued, prohibiting defendant from engaging in harassing or criminal conduct against her.
She also averred that she personally observed specifically described conduct of the defendant on December 2 that violated the order.
At the very least, the fair implication of these averments established her firsthand knowledge that the order had been granted, was in effect and was violated by defendant's harassing or criminal conduct on the date of the offense.
Any challenge to those allegations . . . was a matter to be raised as an evidentiary defense to the contempt charge, not by insistence that the information was jurisdictionally defective without annexation of the order to that accusatory instrument. Id 95 N.Y.2d at 360.
Similarly, in People v. Inserra, 4 NY3d 30, 32-33, 823 N.E.2d 437, 790 N.Y.S.2d 72 (2004), the Court of Appeals held that an information charging the defendant with Criminal Contempt in the Second Degree was legally sufficient, where the supporting deposition of the police officer who took the victim's complaint stated that the officer had examined a copy of the order of protection and that defendant's name appeared on the line for the defendant's signature, because "defendant's name on the signature line sufficiently alleges that defendant received and read the terms of the order of protection" (id. at 33).
Nothing more was required for pleading purposes.
The court specifically declined to reach the issue of whether the copy of the order of protection, which does not appear to have been certified, was admissible.