State of New York                                                     OPINION
Court of Appeals                                       This opinion is uncorrected and subject to revision
                                                         before publication in the New York Reports.




 No. 38
 The People &c.,
         Respondent,
      v.
 Michael Saenger,
         Appellant.




 Sam Feldman, for appellant.
 Danielle Fenn, for respondent.




 TROUTMAN, J.:

       The count of the indictment charging defendant with aggravated family offense

 pursuant to Penal Law § 240.75 was jurisdictionally defective and must be dismissed. We

 uphold defendant’s conviction of criminal contempt in the first degree, however, because


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                                           -2-                                       No. 38

defendant has not demonstrated on this record that his trial counsel was ineffective with

respect to that count.

                                             I.

       In 2016, defendant entered the apartment of his former girlfriend, in violation of a

stay-away order of protection. The People alleged that defendant, while inside, placed his

hands around the complainant’s neck and stole her identification cards. Defendant was

charged by indictment with burglary in the second degree, petit larceny, two counts of

criminal contempt in the first degree, one count of criminal contempt in the second degree,

and aggravated family offense. The count of the indictment charging defendant with

aggravated family offense alleged that defendant “committed an offense specified in

subdivision two of section 240.75 of the Penal Law,” but it did not specify the offense.

The People also provided defendant with a bill of particulars that contained a factual

recitation of his alleged conduct. Defendant did not challenge the facial sufficiency of the

indictment before the trial court. During the charge conference, the People ultimately

specified that the underlying misdemeanor offense for aggravated family offense was

criminal contempt in the second degree.

       A jury found defendant guilty of one count of criminal contempt in the first degree,

criminal contempt in the second degree, and aggravated family offense, and acquitted him

of the remaining charges. On appeal, the Appellate Division modified the judgment by

vacating defendant’s conviction of criminal contempt in the second degree as a lesser

included offense of criminal contempt in the first degree, and otherwise affirmed (

, 1001 [2d Dept 2022]). The Court held that defendant’s remaining contentions

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were unpreserved (see id.).

       A Judge of this Court granted defendant leave to appeal (

 [2022]).

We now modify the Appellate Division order.

                                             II.

       A defendant commits the crime of aggravated family offense pursuant to Penal Law

§ 240.75 when the defendant “commits a misdemeanor defined in subdivision two of this

section as a specified offense and [the defendant] has been convicted of one or more

specified offenses within the immediately preceding five years” (Penal Law § 240.75 [1]).

Subdivision two of the statute contains 54 “specified offense[s],” 36 felonies and 18

misdemeanors.1 To qualify as a specified offense, the defendant and the person against

whom the offense was committed must be members of the same family or household as

defined in CPL 530.11 (1) (see id. § 240.75 [2]).2 Thus, to commit the crime of aggravated

family offense, a defendant must have been convicted of one or more of the specified

offenses in subdivision two of the statute within the previous five years, the defendant must

have currently committed one of the misdemeanor offenses listed in subdivision two, and

both offenses must be committed against a member of the same family or household as the

defendant.



1
 An attempt or conspiracy to commit any of the offenses listed in subdivision two qualifies
as a specified offense (see id. § 240.75 [2]).
2
  The statute clarifies that “[t]he person against whom the current specified offense is
committed may be different from the person against whom the previous specified offense
was committed and such persons do not need to be members of the same family or
household” (id. § 240.75 [3]).
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        Defendant contends that the failure to specify the current misdemeanor offense in

the count of the indictment charging him with aggravated family offense rendered that

count jurisdictionally defective.3 We agree.

        We have recognized that an indictment traditionally serves several functions. “First

and foremost, an indictment has been considered as the necessary method of providing the

defendant with fair notice of the accusations made,” so the defendant will “be able to

prepare a defense” (People v Iannone, 

 [1978]). An indictment further

provides a defendant with “some means of ensuring that the crime for which the defendant

is brought to trial is in fact one for which [the defendant] was indicted by the Grand Jury,

rather than some alternative seized upon by the prosecution in light of subsequently

discovered evidence” (id.). “Finally, the indictment has traditionally been viewed as the

proper means of indicating just what crime or crimes defendant has been tried for, in order

to avoid subsequent attempts to retry [the defendant] for the same crime or crimes” (id. at

595).

        Not every flaw in an indictment renders that document jurisdictionally defective

(see 

). As an initial matter, a jurisdictional defect in one count does not render

the entire indictment defective; it requires only that the defective count be dismissed (see

CPL 210.20 [1]; 210.25). A count is jurisdictionally defective “only if it does not

effectively charge the defendant with the commission of a particular crime,” such as where



3
 The People are required to allege the defendant’s commission of the prior offense through
a special information (see CPL 200.63). There is no dispute that the People did so properly
here.
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it “fails to allege that a defendant committed acts constituting every material element of

the crime charged” or the “acts it accuses defendant of performing simply do not constitute

a crime” (Iannone, 

). Where such a jurisdictional defect is involved, a

defendant may raise the issue for the first time on appeal (see 

). Generally,

an indictment’s “incorporation by specific reference to the statute operates without more

to constitute allegations of all the elements of the crime” (People v D’Angelo, 

 [2002]; see People v Ray, 

 [1988]; People v Cohen, 

 [1981]). We have cautioned, however, that this may not suffice where the

statutory language is “too broad,” and merely charging the statutory language or

incorporating the statute by reference would not sufficiently inform the defendant of the

charge (Iannone, 

, citing People v Farson, 

 [1927]).

       Charging only the statutory language of aggravated family offense pursuant to Penal

Law § 240.75 does not render that count facially valid. The structure of Penal Law §

240.75 is such that alleging in the indictment, as the People did here, that the defendant has

“committed an offense specified in subdivision two” of that statute is insufficient to provide

the defendant with fair notice of the charge because it does not inform the defendant of the

present underlying misdemeanor offense, the commission of which is an element of the

crime of aggravated family offense. Penal Law § 240.75 (2) contains dozens of potential

“specified offense[s],” 18 of which are misdemeanors that may serve as the current offense.

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,

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i.e., the commission of a particular specified misdemeanor offense.4

       The People argue that the indictment, coupled with the factual allegations in the bill

of particulars, made clear that the underlying misdemeanor offense was criminal contempt

in the second degree. Although a bill of particulars may be used to “sustain an otherwise

defective indictment” under certain circumstances (Iannone, 

; see People

v Morris, 

 [1984]), here the bill of particulars simply contained a

factual recitation of defendant’s alleged conduct.         It did not clarify the underlying

misdemeanor offense for aggravated family offense, and the conduct the People alleged

could have constituted commission of several of the misdemeanor offenses listed in Penal

Law § 240.75 (2). It is not the defendant’s burden to parse the elements of each qualifying

offense in Penal Law § 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.

       The People primarily rely upon the fact that the indictment separately charged

defendant with criminal contempt in the second degree, arguing that defendant should have

inferred that the underlying misdemeanor offense for aggravated family offense was, in

fact, criminal contempt in the second degree. That contention is without merit. First, fair



4
  Notably, Penal Law § 240.75 is different in structure than a statute that allows a defendant
to commit an offense by “doing any one of several things,” in which case the indictment
may “in a single count, group them together and charge the defendant with having
committed them all” (People v Charles, 

 [1984] [internal quotation
marks omitted]; see People v Middleton, 

, 955 [2020]). Penal Law § 240.75
requires, as an element of aggravated family offense, that the defendant commit another,
specifically enumerated misdemeanor offense.
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notice of the charges is not the only important function served by a facially valid

indictment. The indictment also must “provide some means of ensuring that the crime for

which the defendant is brought to trial is in fact one for which he was indicted by the Grand

Jury, rather than some alternative seized upon by the prosecution in light of subsequently

discovered evidence” (Iannone, 

). Here, 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.

       Second, the crime of aggravated family offense does not require the underlying

misdemeanor offense to be charged separately in the indictment. It requires only that the

defendant “commit” that underlying offense (see Penal Law § 240.75 [1]; see People v

Brooks, 

, 402 [1st Dept 2018], lv denied 

 [2018]). The fact

that criminal contempt in the second degree was charged in another count of the indictment

therefore is not determinative with respect to the current misdemeanor offense underlying

the aggravated family offense count.

       The People may ensure the facial validity of an indictment charging a defendant

with aggravated family offense simply by specifying the alleged underlying misdemeanor

offense, either by incorporating the underlying offense by section number or by stating the

definition of the offense (see e.g. Brooks, 159 AD3d at 401; see also People v Rosa, 

, 1183-1184 [1st Dept 2018], lv denied 

 [2018]; People v

Parrilla, 

 [1st Dept 2016], lv denied 

 [2017]).

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Inasmuch as the indictment did not provide defendant with notice of which of the

qualifying misdemeanor offenses in Penal Law § 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.

                                             III.

       Defendant further contends that his conviction of criminal contempt in the first

degree must be vacated on the ground that his trial counsel was ineffective for failing to

challenge the legal sufficiency of the evidence supporting that conviction. Defendant was

convicted of first-degree criminal contempt pursuant to Penal Law § 215.51 (c). That

statute provides, as relevant here, that a defendant is guilty of first-degree criminal

contempt when the defendant commits the crime of second-degree criminal contempt as

defined in Penal Law § 215.50 (3)

              “by violating that part of a duly served order of protection . . .
              which requires the respondent or defendant to stay away from
              the person or persons on whose behalf the order was issued,
              and where the defendant has been previously convicted of the
              crime of aggravated criminal contempt or criminal contempt in
              the first or second degree for violating an order of protection
              as described herein within the preceding five years” (Penal
              Law § 215.51 [c] [emphasis added]).

       The parties agree that the statute requires the defendant’s present offense to involve

a violation of that part of an order of protection that requires the defendant to stay away

from the protected person. They dispute, however, the meaning of the phrase “as described

herein” as used in the statute to characterize the prior offense. Defendant contends that it


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means that his commission of the prior contempt offense within the past five years must

also have involved the violation of that part of an order of protection requiring him to stay

away from the protected person. Inasmuch as the People alleged that his prior contempt

conviction involved harassing phone calls, defendant asserts that his trial counsel was

ineffective for failing to make a motion for a trial order of dismissal challenging the

evidence supporting first-degree criminal contempt on that ground.

       We agree with the People that defendant has not demonstrated defense counsel’s

ineffectiveness. The People have offered a plausible alternative interpretation of the phrase

“as described herein,” and this Court has never addressed the issue. At the time of

defendant’s trial in 2018, two Appellate Division decisions had identified the issue but did

not conclusively resolve it (see People v Kelly, 

 [4th Dept 2010] [issue

unpreserved], lv denied 

 [2011]; People v Taylor, 

[1st Dept 2016] [issue undisputed], lv denied 

 [2017]). Only after defendant

was tried did the Appellate Division hold that Penal Law § 215.51 (c) requires both the

current and the former violation of an order of protection to be of that part of the order

requiring the defendant to stay away from the protected person (see People v Barrett, 

, 1737-1738 [4th Dept 2020]).

       At the time of trial, there was no clear appellate authority adopting the statutory

interpretation of Penal Law § 215.51 (c) that defendant now urges is correct. We need not

resolve that statutory interpretation question on this appeal. Because the issue was not “so

clear-cut and dispositive that no reasonable defense counsel would have failed to assert it”

(People v Flowers, 

 [2016] [internal quotation marks omitted]),

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defendant’s claim of ineffective assistance must fail (see People v Keschner, 

 [2015]; People v Blake, 

 [2014]).

      Accordingly, the order of the Appellate Division should be modified in accordance

with this opinion and, as so modified, affirmed.


Order modified in accordance with the opinion herein and, as so modified, affirmed.
Opinion by Judge Troutman. Chief Judge Wilson and Judges Rivera, Garcia, Singas and
Cannataro concur. Judge Halligan took no part.


Decided May 18, 2023




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