AMENDED VIOLATION OF CONDITIONAL DISCHARGE DECISION INTRODUCTION On April 26, 2022, defendant pleaded guilty to Criminal Contempt in the Second Degree and Tampering with a Witness in the Fourth Degree in exchange for a promised sentence of a one-year conditional discharge. The question presented is whether defendant’s subsequent unsolicited payments to the complainant, via Zelle, violated the final order of protection and, therefore, violated the conditional discharge. For the following reasons, the court finds that the unsolicited payments did, in fact, violate the order of protection and the conditional discharge. During the plea allocution in this case, defendant admitted to violating a court order by contacting his stepdaughter, via text message, and to leaving a voice-mail message for Patti Morris, the child’s mother, to induce her to avoid appearing or testifying in another case. The sole condition specified in the conditional discharge was a two-day anger management program.1 The court also imposed a final order of protection in favor of defendant’s stepdaughter and Patti Morris. That final order of protection directed defendant to stay away from his stepdaughter and Patti Morris, to refrain from harassing them, and to refrain from communicating or having any contact with them, either by mail, phone, e-mail, voicemail, or other electronic means, or any other means. This court made the final order of protection subject to any Family Court order of protection. On March 15, 2023, the People filed papers requesting a hearing, pursuant to CPL §410.70, alleging that defendant violated the terms of the conditional discharge. Specifically, the People alleged that defendant violated the final order of protection which, in turn, violated the conditional discharge imposed by this court, by sending a $25 payment to Patti Morris on eleven separate occasions via Zelle, an on-line payment system used in the banking industry. On April 14, 2023, the court held a hearing on the People’s motion. The People called one witness, Patti Morris, whose testimony the court credits. Defendant testified on his own behalf. The court credits defendant’s testimony to the extent indicated in this decision. After considering the parties’ arguments and post-hearing submissions, the court finds that the People have met their burden of proving that defendant violated the conditional discharge imposed in this case. FINDINGS OF FACT Morris and defendant were in a relationship for approximately ten years and have a nine-year-old child in common. In 2012, defendant started a business selling t-shirts, incorporated as “I Am God, LLC.” (Defendant’s Exhibit A). Morris is a graphic designer, and she helped defendant by making t-shirt designs for him to sell under his “I Am God” brand between 2013 and 2014. Defendant created a Zelle account to use in connection with his business. Defendant no longer lived with Morris, his stepdaughter, and his biological child as of October 2017. Defendant was aware that Morris did not want any contact with him as of October 2017, and he testified that the last time he saw or had any communication with his biological child was in December of 2017. On July 31, 2018, two orders of protection were issued against defendant, in favor of his biological child and stepdaughter following a Family Court abuse and neglect proceeding. Among other things, that order required defendant to stay away from their home and school, and prohibited any direct or third-party communication or contact by mail, phone, or any electronic means. Defendant testified that the Family Court orders of protection were the result of a separate criminal case in which he was alleged to have abused his stepdaughter. Defendant was acquitted of those charges in December 2021. On December 13, 2021, Morris filed a Family Court petition seeking sole custody of their biological child. Morris was subsequently awarded sole custody with defendant’s consent. On April 26, 2022, this court issued a final order of protection against defendant on the instant indictment. Once again, that final order of protection directed defendant to stay away from his stepdaughter and Morris, to refrain from harassing them, and to refrain from communicating or having any contact with them, either by mail, phone, e-mail, voicemail, or other electronic means, or any other means, except for contact or communication permitted by a subsequent Family Court or Supreme Court order in a custody, visitation, or abuse or neglect proceeding. The court also ordered defendant to complete an anger management program, which defendant did. On June 13, 2022, defendant filed a Family Court petition for visitation as to his biological child. That petition was dismissed on September 12, 2022 due to defendant’s failure to appear. Defendant filed a second petition seeking visitation rights with his biological child on September 14, 2022. It is undisputed that defendant made eleven Zelle payment to Morris, beginning on December 25, 2022, and ending on March 13, 2023.2 It is also undisputed that the payments at issue were sent to Morris from “I AM GOD LLC,” the Zelle account that is linked to defendant’s known cell phone number and email address ([email protected]). (People’s Exhibit 1). Each payment resulted in text notifications, from Zelle and the bank, to Morris informing her that she received a $25 payment from “I AM GOD LLC.” Some text messages informed Morris that “I AM” sent her a $25 payment via Zelle. Morris testified that not having a Zelle account would be a hardship because she was a freelance designer who used Zelle to receive payment. Nevertheless, Morris ultimately deactivated her Zelle account because she did not want any contact from defendant. Despite this action, Morris still received text message notifications informing her that “I AM GOD LLC” sent her money. Those text messages included a link to enroll in Zelle to accept the money. The text notifications are sent by Zelle and the bank, not the payor. Although Zelle provides an option to include a personalized message with a payment, defendant chose not to do so. Morris received text notifications from Zelle and the bank about payments from defendant without any information about what the payments were for. There was certainly no indication that the payments were intended to be for child support. Morris had not asked defendant for money since October 2017, and at no time did she file a petition seeking child support. Defendant also acknowledged that there was no support order in place during any of this litigation. Nevertheless, defendant concedes that he made the Zelle payments, and he testified that he did so to support his biological child. Morris testified that it was disturbing to receive the Zelle messages because defendant abused his stepdaughter and she did not want any contact with him. She also testified that she believed that the orders of protection should protect her from any contact from defendant. Morris did not tell her Family Court attorney to inform the Family Court of the payments even though it was possibly in violation of the Family Court order of protection. She did, however, inform the People as soon as she received the first payment notification in December 2022. Defendant testified that he was aware of the order of protection issued by this court, and that he was not under any court-ordered obligation to make these payments. Although defendant acknowledged that he was “very aware” that the order prohibited any contact or communication with Morris, he testified that he endeavored to follow and abide by the order of protection. Defendant testified that while trying to retain an attorney in November 2022 to represent him in the Family Court proceeding, an attorney that he did not hire, with whom he had only one conversation, and whose name he could not remember, told him to start making child support payments because it would look better for defendant in the upcoming Family Court proceedings. Although defendant claimed to have given the attorney all of the details of his case, defendant could not remember if he told the attorney about the Family Court and Supreme Court orders of protection. Supposedly based on this advice, defendant decided to send “whatever [he could to Morris] on a weekly basis.” Defendant testified that he did not intend to harass, annoy, or contact Morris, or to violate the order of protection. Defendant testified that he sent the money to support his biological child, that he did not have another way to send money to her, and that his intent in doing so was to re-establish a relationship with his daughter and to show the Family Court judge that he was trying to support his child. Defendant testified that he did not consider the payments to be a form of communication because he was just sending money, and that he set up a recurring payment that did not include any personalized message because the order of protection prohibited any communication with Morris. However, defendant acknowledged that he knew that Morris would receive a text message when a Zelle payment was sent, just as he would receive a notification showing that the transaction was “completed.” Defendant acknowledged that Morris did not want any contact with him after October 2017. Just as Morris did not respond to any communication from him since October or November of 2017, she did not respond or contact defendant at all regarding the payments. Defendant testified that he was never advised, admonished, or instructed by the Family Court judge, or by Morris’s own attorney in the Family Court proceeding, to stop sending payments. Defendant only stopped the payments when counsel in this matter advised him that he should not send money because it might be in violation of the order of protection. CONCLUSIONS OF LAW The conditions of a conditional discharge “shall be as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or assist him to do so.” (PL §65.10[1]). Conditions relating to conduct and rehabilitation shall require defendant to “[o]bserve specified conditions or conduct as set forth in an order of protection issued pursuant” to CPL §530.12. (PL §65.10[2][k]). The only condition noted in the conditional discharge order signed by this court on April 26, 2022 was the “completion of two anger management sessions.” While defendant has not argued that compliance with a final order of protection must be specifically included as a condition in a conditional discharge in order to violate the sentence, the court specifically advised defendant and counsel that the court would not accept the plea if there were any continued attempts to contact Morris, including third-party contact. In any event, the court notes that the commission of an additional offense after a conditional discharge is imposed, but before the conditional discharge period expires, “constitutes a ground for revocation of such sentence irrespective of whether such fact is specified as a condition of the sentence.” (CPL §410.10[2]). As such, the violation of a final order of protection, which may serve as the basis for a criminal contempt prosecution, may also serve as the basis for a revocation of a conditional discharge imposed in that same case. Finally, the People need only establish that defendant violated a condition of his sentence by a preponderance of the evidence. (CPL §410.70[3]). The People argued that each Zelle payment violated the final order of protection in three ways. The People argued that each payment constituted harassment by defendant, an electronic communication, and a third-party communication, each of which were prohibited by the final order of protection. In contrast, defendant argued that the payments were intended to be child support for his biological daughter — a child who is not named in the final order of protection. As such, defendant argued that finding a violation of the conditional discharge under the circumstances would be against public policy and have a chilling effect on those who want to pay child support. Whether a defendant can violate a final order of protection by making an electronic fund transfer through a third party service, thereby violating a conditional discharge, appears to be a case of first impression. For the following reasons, the court finds that the People have proven, by a preponderance of the evidence, that defendant violated the conditional discharge imposed in this case. As a preliminary matter, the court does not agree with defendant’s assertion that a finding against him will violate public policy or have a chilling effect on parents who want to pay child support. In and of itself, a desire to pay child support does not take precedence over the enforcement of a lawfully issued order of protection. Moreover, regardless of whether defendant actually intended to harass or annoy Morris with either the frequency or the amount of the payments, as the People claim, the court need not find any such intent in order to find that defendant violated the order of protection in this case. The circumstances presented are analogous to those in People v. Lemons (52 Misc3d 848 [Crim Ct NY County 2016]). In Lemons, the defendant was charged with criminal contempt for allegedly violating an order of protection that prohibited him from contacting the complainant, either electronically or through third parties. That defendant allegedly violated the order of protection by submitting a “follow request” on Instagram to follow the complainant’s Instagram page. Although there was no direct communication, or even a message, from the defendant to the complainant, his “follow request” resulted in Instagram automatically sending a notification of that request to the complainant. The Lemons Court held that there was no reason to conclude that this automated forwarding feature rendered the follow request a communication only to Instagram and not to the complainant. The Lemons Court also opined that an indirect electronic communication to Instagram would still violate the order of protection since the order also prohibited communicating through third parties. In the instant matter, the court finds it difficult to credit defendant’s claim that an attorney advised him to make child support payments, in light of the two applicable orders of protection, that defendant may or may not have told him about. Nevertheless, even if the court were to credit defendant’s account, it is undisputed that Morris is protected by a final order of protection issued by this court, and that defendant knowingly and intentionally sent eleven payments to her from his Zelle account. Defendant himself testified that he was “very aware” that the order of protection prohibited him from contacting or communicating with Morris. Contrary to defendant’s claim that the payments were financial transactions and not communications, each Zelle payment resulted in a communication to Morris informing her that defendant sent her a payment. As in Lemons, the fact that the Zelle text notifications were automated is of no moment because defendant knew Morris would receive a message when each payment was sent. In this regard, the court agrees with the People that each text message from Zelle constituted an electronic communication that fell within the ambit of the final order of protection issued by this court. Finally, as in Lemons, this court finds that the automatic notification resulting from each payment, regardless of the content of the notification or the lack of a personal message from defendant, constituted an impermissible third-party contact that was also prohibited by this court’s order of protection. (See People v. Fernino, 19 Misc 3d 290, 293 [Crim Ct Richmond County 2008] [a friend request through a social media platform constituted a contact that was prohibited by an order of protection]). Although defendant claimed that he had no other way of sending money to his daughter, there was no legal obligation for him to do so. Given the orders of protection that were in place, it was incumbent upon him to raise the matter in Family Court instead of instigating the payments on his own. Indeed, this court specifically made the final order of protection in this case subject to any subsequent Family Court order. In this regard, there is nothing about this proceeding, or this court’s decision, that offends public policy. It is undisputed that defendant knew that the order of protection prohibited any third-party communication or contact with Morris. It is undisputed that defendant knew that sending money through Zelle would result in a text notification from Zelle to Morris after each payment. It is undisputed that defendant intentionally, and knowingly, chose to do so anyway. Based on the foregoing, the court finds that the People have met their burden of proving, by a preponderance of the evidence, that defendant violated the conditional discharge by engaging in conduct that was prohibited by the final order of protection imposed in this case. Dated: July 11, 2023
