In People v. Clisby (3d Dept. 3/3/2011), the Third Department affirmed that a "stay away" provision in an order of protection is violated by a defendant even if the victim is not home at the time. In that case, the Defendant was the subject of a Family Court order of protection that required him to stay at least 1,000 feet away from the victim's home. The Defendant was convicted of Criminal Contempt 2º after he drove into the parking lot of the victim's apartment building when she was not home.
The court rejected the Defendant's argument that he committed, at most, a "technical violation" of the order and the charge should have been dismissed. The plain terms of the order required him to stay away from the victim's residence. Criminal Contempt 2º did not require evidence that the victim was home or otherwise alarmed or annoyed by the Defendant's conduct. (LC)