Court of Appeals vacates aggravated family offense conviction

The state’s highest court has dismissed a charge of aggravated family offense because of a flaw in the charging documents.

In 2016, defendant Michael Saenger entered the apartment of his former girlfriend, in violation of a stay-away order of protection. The prosecution alleged that Saenger placed his hands around the women’s neck and stole her identification cards.

He was charged with second-degree burglary, petit larceny, two counts of first-degree criminal contempt, one count of second-degree criminal contempt and aggravated family offense.

The aggravated family offense charge alleged that he “committed an offense specified in subdivision two of Section 240.75 of the Penal Law,” but it did not specify the offense.

The prosecution provided Saenger with a bill of particulars that detailed his alleged conduct and eventually specified that the underlying misdemeanor offense for aggravated family offense was second-degree criminal contempt.

Saenger was convicted of one count of first-degree criminal contempt, second-degree criminal contempt, and aggravated family offense. He was acquitted of the other charges.

“The count of the indictment charging defendant with aggravated family offense pursuant to Penal Law Section 240.75 was jurisdictionally defective and must be dismissed,” New York State Court of Appeals Judge Shirley Troutman wrote in the decision.

The Appellate Division vacated the conviction of second-degree criminal contempt as a lesser included offense of first-degree criminal contempt and otherwise affirmed the verdict.

To commit the crime of aggravated family offense, a defendant: must have been convicted of one or more specified offenses within the previous five years; must have currently committed one of the misdemeanor offenses listed in the statute; and both offenses must be committed against a member of the same family or household as the defendant.

Saenger’s appellate lawyer argued that the prosecution failed to specify the pre-requisite offense in the indictment, which rendered that count jurisdictionally defective.

“We agree,” Troutman wrote.

“Merely alleging that the defendant has committed one of those offenses, without specifying which one, does not provide the defendant with notice sufficient to enable the defendant to prepare a defense, nor does it sufficiently allege an element of aggravated family offense,” she wrote.

The bill of particulars simply contained a factual recitation of defendant’s alleged conduct. It did not clarify the underlying misdemeanor offense, she wrote.

“It is not the defendant’s burden to parse the elements of each qualifying offense in Penal Law Section 240.75 (2) to infer which might be the crime charged based on the factual allegations in the bill of particulars. Thus, the bill of particulars did not resolve the jurisdictional defect,” Troutman wrote.

“There is no way of determining from the face of the indictment, even when supplemented by the bill of particulars, what underlying misdemeanor offense the grand jury believed defendant had committed for purposes of aggravated family offense, and therefore no way to ensure that the People could not allege an alternative underlying offense at trial,” she wrote.

“Inasmuch as the indictment did not provide defendant with notice of which of the qualifying misdemeanor offenses in Penal Law Section 240.75 (2) he was alleged to have committed, and the commission of a specified misdemeanor offense is an element of aggravated family offense, the count of the indictment charging defendant with aggravated family offense was jurisdictionally defective and must be dismissed,” she wrote.

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