Two Issues before the Court: (1) was the indictment alleging aggravated family offense (“AFO”)
(Penal Law § 240.75), jurisdictionally defective; and (2) was counsel ineffective in failing to move to
dismiss the first-degree contempt charge (Penal Law § 215.51(c)).

Indictment Holding: The AFO indictment was jurisdictionally defective because it failed to
provide the requisite notice.

A person violates § 240.75 when that person “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.” Subdivision two contains 54 “specified
offenses,” 18 of which are misdemeanors.

The indictment here alleged that Saenger violated Penal Law § 240.75 by “commit[ing] an offense
specified in subdivision two of section 240.75.” But it did not specify that underlying “offense.” At
trial, the prosecution ultimately claimed that second-degree-misdemeanor contempt was the
“specified offense.” The question presented was whether the failure to specify the misdemeanor
offense in the indictment rendered the indictment jurisdictionally defective.

The Court found the indictment jurisdictionally defective because it failed to provide notice of the
specified offense. The Court reiterated that while, as a general matter, alleging the statutory
language/section in an indictment is sufficient, that rule is not absolute. Instead, the statutory
language/section do not suffice if—given the nature of the charges and/or statute at issue—they do
not “‘sufficiently inform the defendant of the charge.’” And here, the statutory language was
insufficient as it left open the possibility that the prosecution’s theory rested on any one of 18
misdemeanors. Although the indictment also alleged the misdemeanor of second-degree criminal
contempt (a “specified offense”), that allegation did not convey that contempt was the underlying
misdemeanor for the separately charged AFO offense.

Furthermore, the bill of particulars did not cure the problem because, while containing a factual
recitation of the conduct, it did not specify the actual misdemeanor alleged. Also, the conduct
alleged in the bill of particulars could have constituted several AFO misdemeanors. “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.”

CAL Observes: Saenger is an important reminder that the mere allegation of the statutory language or
section does not always render an indictment sufficient—especially where the statutory language
cross-references a list of other crimes. Under such circumstances, if the pleadings do not necessarily
indicate which offense is being cross-referenced, a defendant will have a good argument that the
indictment is facially insufficient.

Ineffective-Assistance Holding : The second question presented related to the first-degree
contempt charge under Penal Law § 215.51(c). A defendant violates that section when the defendant
commits second-degree criminal contempt under Penal Law § 215.50 (3) “by violating that part of
[an] order of protection . . . which requires [ ] defendant to s tay aw ay from the person or persons
on whose behalf the order was issued, and [he/she] has been previously convicted of . . . criminal

contempt in the first or second degree for violating an order of protection as described herein
within the preceding five years.”

Saenger argued that his counsel was ineffective for failing to argue that the first-degree contempt
evidence was insufficient on the grounds that the prior contempt violation did not involve a “stay
away” violation but involved a violation of an OTP by making phone calls. Saenger argued that the
“as described herein” language links back to the “stay away” requirement stated in the first part of
the subsection. At the time of trial, trial-court decisions had agreed with that interpretation of the
statute and the First Department had done the same in dicta. People v. Taylor, 142 A.D.3d 465,
465–66 (1st Dept. 2016) (noting that it was “undisputed that Penal Law § 215.51(c) requires proof
that the prior conviction, like the instant offenses charged in the indictment, involved a violation of
a stay-away order”); People v Swartout, 7 Misc.3d 549, 550-551 (Sup. Ct. Tompkins Cty 2005).

Still, the Court found counsel effective because “at the time of defendant’s trial in 2018, . . . there
was no clear appellate authority adopting the statutory interpretation of Penal Law § 215.51 (c) that
defendant now urges is correct.” “Because the issue was not ‘so clear-cut and dispositive that no
reasonable defense counsel would have failed to assert it,’ defendant's claim of ineffective assistance
must fail.”

CAL Observes: The IAC decision is hardly surprising. The Court of Appeals is generally unwilling to
develop the jurisprudence in this area and has instead repeatedly employed vague standards like
“clear cut and dispositive” to defeat claims of ineffective assistance in conclusory fashion. These
vague standards are, as CAL’s Impact Lit Series has observed, inconsistent (hyperlinked) with
Strickland v. Washington, 466 U.S. 668 (1984), and often hide the reality that the defendant has solid
deficient-performance and prejudice arguments under Strickland.

Here, for instance, as the Court of Appeals has held in other cases, the mere fact that an argument
was not a “clear winner” does not mean a reasonable lawyer would have failed to raise it. E.g., People
v. Heidgen [McPherson], 22 N.Y.3d 259, 278 (2013) (failure to raise complicated depraved-indifference
argument for dismissal was deficient performance even though it was not a “‘clear winner’”)
(quoting People v. Turner, 5 N.Y.3d 476, 483 (2005)). Furthermore, it is hard to see why a reasonable
lawyer would have omitted this dismissal argument given then-existing law (the First Department
decision in Taylor and the trial court’s decision in Swarthout). Counsel had everything to gain and
nothing to lose.

Second, there is a “reasonable probability” that the argument would have prevailed given the
statutory text (the “as described herein” clause links back to the “stay away” requirement) and the
case law on the books at the time. Strickland, 466 U.S. at 693-94.

Practitioners should consider arguing that the two-step deficient performance/prejudice standard
under Strickland, not vague standards (“clear cut and dispositive”), control the ineffectiveness
analysis. That’s often the best way to ensure that our clients have a shot of winning ineffectiveness
claims. Flimsy and subjective standards will almost always doom our efforts.