SUPREME COURT OF THE STATE OF NEW YORK

INTEGRATED DOMESTIC VIOLENCE COURT

COUNTY OF NEW YORK
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A Matter Under Article 8 of the FCA Motion To Dismiss
File No: 283606
Docket No: O-11458-17/18A
Katherine Kosmides,
Petitioner

Derek Sine,
Respondent
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MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

Dated: June 5, 2019

Miccio McDaniel & Pelosi

_____________________
By: Kris McDaniel-Miccio, Esq.
Two Pearl Street Suite FR
Kingston, New York 12401
845. 334-0618
.

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 Table of Contents
Preliminary Statement 4
Argument 4-11
I The provision in the Order of Protection which prohibits
Mr. Sine from contacting third parties through use of the
internet or social media is defective because it fails to
comport with requirements of due process as enumerated
in the Fourteenth Amendment of the United States Constitution
and the New York State Constitution.

II The December 1, 2017 Order Paragraph 14 prohibits 7

communication or contact by respondent with petitioner;
no violation of this condition exists.

III The allegations of stalking and harassment violate conceptions 9

of due process because they fail to provide notice of the offense
violated or facts specific to support either offence.

IV There is no violation of the Order of Protection because 10

the letters, emails, text messages and postings on social
media are protected speech.

Table of Authorities
Cases
Albert v Oliver
510 U.S. 226 (1994) 4

Hebert v Louisiana
272 U.S.312 (1926) 4

Mathews v Eldridge
424 U.S.319 (1976) 4

People v Golb
15 N.E.3d 805 (N.Y.2014) 6

People v Mangano
100 N.Y.2d 569 (2010) 10

People v Thompson
7
Statutes

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Fourteenth Amendment, U.S. Constitution 1-10

First Amendment, U.S. Constitution 10-11

New York State Constitution,

Art I Section 6 6

Penal Law Sec. 240.30 (1)-(5) 9

Penal Law Sec. 240.25 9

Penal Law Sec. 240.26 (3) 9

FCA Sec. 812 9

CPL 530.12 9
Secondary Sources

Aida Abdulahi, et.al

A Study of the Effects of Social
Networking Sites
5 Bus & Soc. Sci. 133 (2014) 8

Baker, C. Edwin
The Process of Change and the Liberty Theory
of the First Amendment
55 S. Cal. L. Rev. 293 (1982) 4

James Madison
FEDERALIST PAPER #10
23 November 1787 5

Mooder
Social Media Reinvented Apathy
Medium-On line Journal 8

Miccio, G. Kristian
A House Divided: Mandatory Arrest
Domestic Violence and the Conservatization
of Battered Women’s Movement
42 Hous. L. Rev.237 (2005) 5

Miccio, G. Kristian
A Cruel Deception: Castle Rock,
Constitutional Protection and Conceptions
of State Accountability 5
10 Geo. J. Gender & L. 87 (2009)

McDaniel-Miccio, Kris
Confronting the Gendered-State:
A Feminist Approach to Confronting

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Gender Violence and Gender Inequality
in the United States and the Republic of Ireland 5
30 Wisc. J.L. Gender & Soc’y 23 (2015)

PRELIMINARY STATEMENT

Where to begin. This question is relevant in large measure because there are multiple
proceedings initiated against Derek Sine on the same alleged facts. More important than dragging Mr. Sine
into every conceivable court are the allegations. These allegations are not only hostile to the First
Amendment but the underlying justification for Article 8 of the Family Court Act. The Family Court Act and
the CPL were amended to provide protection to women survivors of male intimate violence and to mandate
accountability for both the individual perpetrator and the State, within limits framed by constitutional
imperatives of due process and free speech. Unfortunately, the case at bar, wreaks havoc on conceptions
of fairness and speech. To add insult to injury, number 14 of the Court Order,1 elemental to petitioner’s
violation claim, is constitutionally defective.
This Memorandum of Law lays out four theories to support both dismissal of the instant petition
and the Order of Protection issued by the Court on December 1, 2017. Quite simply, dismissal is
warranted because there is no factual basis to support a violation, the OP is constitutionally defective and
respondent’s First Amendment right to free speech has been abrogated.

ARGUMENT

I. The provision in the Order of Protection which prohibits Mr. Sine from contacting third parties
through use of the internet or social media is defective because it fails to comport with
requirements of due process as enumerated in the Fourteenth Amendment of the United States
Constitution and the New York State Constitution.

As any first-year law student understands due process requires specific protections to persons
hauled into court. As Mathews v Eldridge teaches, “what process is due” is determined by the right
infringed or interfered with by the State 2. It’s the confluence of substantive with procedural due process;
the required procedure is contingent upon the degree of encroachment and nature of the right. Indeed, due Commented [km1]:
process safeguards the liberty of the citizen against deprivation by the State, because due process

1
Paragraph 14 (a) states, “Refrain from communication or any other contact with…Kathryn Kosmides,…NO THIRD PARTY
CONTACT; NO SOCIAL MEDIA CONTACT; NO CONTACT AT ALL.” See, December 1, 2017 OP; See also, Verified Petition,
paragraph 2(a).
2
424 U.S. 319 (1976)

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embodies notions of justice which are fundamental to our civil and political institutions;3 and notice, as to
prescribed and prohibited conduct, is intrinsic to conceptions of due process.4
With the passage of the 1994 Family Prevention and Domestic Violence Intervention Act, failure to
adhere to either stay away or no contact provisions mandate arrest by law enforcement.5 Indeed, every
protective order issued now by the courts, clearly states arrest is not only a possible consequence but in
some circumstances mandatory.6 Moreover, since contemporaneous prosecution is permitted, one can be
held in criminal contempt and quite possibly charged on the underlying crimes which give rise to the
violation of the Order.7
It is clear the right in question is liberty. 8 Violations of any provision of a Family Court Order of
Protection could result in deprivation of liberty, consequently, if subjected to criminal contempt Derek Sine’s
liberty would be severely restricted and quite possible extinguished for a term of years. As the case law
makes clear, the process due Mr. Sine or any respondent subject to a Family Court order of protection is
no different than what is expected when facing criminal charges by indictment or criminal information--
notice, opportunity to be heard and adequate assistance of counsel.

A. Number 14 of the December 1, 2017 Order is overbroad and vague thereby failing to provide notice as
required by due process mandated by the Fourteenth Amendment of the United States Constitution and the
New York State Constitution.

(1) Constitutional infirmity of the no third-party contact prohibition.

Number 14 of the Order states, “refrain from communication or any other contact by mail,
telephone, email, voice-mail or other electronic or any other means with Kathryn Kosmides … NO THIRD
PARTY CONTACT; NO SOCIAL MEDIA CONTACT; NO CONTACT AT ALL.
What does the Court mean by no third-party contact? Does it refer to any third-party contact, a
specific third-party contact known to Ms. Kosmides, or does this phrase apply to persons she might know?

3
See, Albert v Oliver, 510 U.S. 266 (1994) citing Hebert v. Louisiana, 272 U.S. 312, 316, 317 (1926).
4 See, generally Matthews v Eldridge, 424 U.S.319 (1976).
5 Amending Art. 8 FCA and CPL 530. I know this intimately because I was a co-author of the mandatory arrest statute,

consultant to the Gonzales team, Castle Rock v Gonzales, in the U.S. Supreme Court and produced approximately five articles
on the Gonzales case and conceptions of mandatory arrest. See, G. Kristian Miccio, A House Divided, Mandatory Arrest,
Domestic Violence and The Conservatization of the Battered Women’s Movement, 42 Hous. L. Rev. 237 (2005); . Kris McDaniel-
Miccio, Confronting the Gendered State: A Feminist Approach to Confronting Gender Violence and Gender Inequality in the
United State and the Irish Republic, 30 Wis. J.L. Gender & Soc'y 23 (2015); G. Kristian Miccio, A Cruel Deception: Castle Rock,
Constitutional Protection and Conceptions of State Accountability, 10 Geo. J. Gender & L. 87 (2009).

6 The Order states in bold type, and full capitalization “ Your failure to obey this order may subject you to mandatory arrest and
criminal prosecution, which may result in your incarceration for up to seven years for criminal contempt and/or may subject you
to Family Court prosecution and incarceration for up to six months for contempt of court.” [Emphasis added].
7 Double jeopardy is not a play since the crimes of criminal contempt and, for instance, aggravated harassment in the second

degree are not the same crimes. We know that multiple crimes can be charged on the same transaction or occurrence.
8 See, James Madison, FEDERALIST PAPER #10 (23 November 1787) [ arguing that equality and liberty are not only

fundamental but intertwined.]

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 One cannot know. One can only speculate. One can only speculate because particularity as to
who constitutes a third-party is missing. Because this section of the order is inexact, third-party could refer
to anyone. For example, let’s say Sine emailed his mother. In the email he made statements about the
endless legal battle being waged in New York’s courts how the situation is untenable. Would that email
constitute third-party contact? For the sake of argument, perhaps Derek calls his uncle, who is also a
rabbi, leaving this message, “I’m coming for a visit. We need to talk. I need to talk about Kathryn and the
effect this break-up--the court cases and my belief she had affairs-- is having on me emotionally. I need
your sage advice. May I come by on Sunday? I’ll bring the Manischewitz.” Is this email a violation, or only
the one to his mother, or both?
The conundrum created is due to the ambiguity of the Order’s prohibition regarding third-party
contact. In this regard, People v Golb, is instructive9. The New York State Court of Appeals struck down
PL 240.30(1) because, in the aggregate, the statute was overbroad and vague. The statute therefore
violated “both the Federal and New York State Constitution.” What the Court found constitutionally
offensive was the inexact reference to injury, harm and third parties. As Justice Smith opined, during the
colloquy with the prosecutor, emailing a third-party was “really, really,” a crime?10
Justice Pigott went even further by questioning the prosecutor’s claim that contacting anyone could
result in a violation of PL 240.30 (1). The colloquy between the Judge and the prosecutor deserves
memorialization:
JUDGE PIGOTT: You’re saying there can be third party aggravated harassment?
MR. RIVELLESE: Yes. There is an intended victim.
JUDGE PIGOTT: …you get three college kids---you get some college kid who write[s]…who emails the
girlfriend of his roommate saying, you know he really is a useless person. Is that aggravated harassment
with respect to the victim, boyfriend/roommate?
MR. RIVELLESE: Yes.
JUDGE PIGOTT: Really?11
The third-party no contact in this Order creates the same problem as in Golb. Nowhere in number 14 does
the Court attempt much less state who constitutes “third-party.” Consequently, an email to Mr. Sine’s
mother, rabbi or even his lawyer, outside the ambit of privilege,” would constitute a violation of the Order.
Finally, Derek Sine’s liberty has been placed before this Court, thus notice as to what behavior is
prohibited must be specifically and clearly articulated in the Order of Protection. In relation to a third-party,
no such particularity exists undermining conceptions of notice and due process.
(2)“No social media contact,” “No contact at all.”
The analysis is the same for social media and the admonition of “no contact at all.”

9
15 N.E.3d 805(N.Y. 2014) [finding PL. 240.30(1) unconstitutionally vague and overbroad.)
10
See, Transcript, Court of Appeals State of New York, People v Golb, (March 25, 2014) pg. 17 line 24.
11
See, supra fn. 8 Transcript at pg.19, line 13-21.

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 Once again, respondent is not on notice as to whether the prohibition covers contacting friends,
acquaintances, family members, people “met” on Facebook, Twitter, Instagram etc. The Court has in
fact created a universal prohibition which fails even minimal standards of notice.
Opposing counsel may argue that Mr. Sine knows exactly who he should not contact on social
media, et.al. While that may satisfy informal arrangements and agreements, it falls dangerously short
of what is required by notice, ergo due process. Counsel does assert the prohibited conduct includes
contact to the alleged paramours of Ms. Kosmides, David Gardner and John Dolan. Indeed, counsel
identifies these two men in the Verified Petition. Nowhere, however, are those names mentioned much
less included in the Order. Again, we are left to wonder if the no contact order applies to family,
friends, dear friends, acquaintances, colleagues or even enemies of petitioner. We have no idea as to
the class of individuals subsumed in “no contact,” because none are stated.
Whilst the devil is in the details, that devil is required by our due process requirements especially
when respondent is facing a potential jail/prison term. Because Mr. Sine is not on notice as to whom
he may not contact or who constitutes third-party status,12 number 14 of the Order is unconstitutional.

II. The December 1, 2017 Order prohibits communication or contact by respondent with petitioner;
no violation of this condition exists.

The Order uses three key words in the first part of number 14 of the Order. All are in relation to
petitioner, specifically no communication or contact with Kathryn Kosmides. The operative terms are (1)
communication…with and (2) contact…with.
Nothing alleged in the instant petition meets either prohibition.
(1) Respondent did not communicate with petitioner.
Words do matter. The words that matter here are “communicate” and “with.” The order does not
prohibit communication about a subject or person, nor does it prohibit communication to friend, family
member or business associate of petitioner. If this was the Court’s intent, it failed because the Order
neglected to put respondent on notice such conduct was prohibited.
To communicate requires information-words.13 The Order’s number 14 is unambiguous: no
communication with petitioner- no “uttering words.” Moreover, recipient of the communication is
particularized-through the Court’s insertion of the preposition “with.14” And as Thompson makes clear,
“with” requires direct connection between respondent and petitioner.

12
Respondent understands that direct contact with petitioner is prohibited. That is not, however, consonant with claims made by
petitioner in her verified petition.
13
People v Thompson, 28 Misc.3d 483, 488, 489 (2010)
14
Clearly, if one diagramed the Court’s statement in paragraph 14, it would become clear the relationship words have to one
another and to the ideas such words convey. Here the Court uses the preposition “with” in prepositional phrase “with Kathryn
Kosmides.” Prepositions and prepositional phrases express “ relation to another word or element in the clause.” E.g Occupant
on the premises, cf. Occupant of the premises. The relationship between occupant and premises changes depending on the

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 The petition does not articulate any facts to support the claim that respondent communicated with
petitioner. At most the papers include alleged communication between Sine’s and Gardner, Dolan,
Kosmides’ mother and her business colleagues. There is nothing in the petition which hints, much less
establishes communication by Sine’s with Kosmides.
(2) Respondent did not have contact with petitioner.

Contact, unlike communication, focuses on the method used to connect with or to another person.
It is the “thing” which mediates between A and B, such as a phone, computer, email, text, or letter. The
Order makes clear, respondent shall not use email etc. to facilitate contact with petitioner. Both method and
recipient are delineated by the Court.
Petitioner claims the alleged emails, texts, and letters between respondent and Gardner, Dolan
and other third parties established contact with petitioner. However, unlike the prohibition against third-
party contact, the Court clearly identifies the means to effectuate contact and the intended recipient. The
intended recipient/party is petitioner, not Gardner, Dolan or any other third party.
Petitioner characterizes respondent’s use of his computer to access various social media sites
such as Angel List, “Cheaters Planet” and “Liar’s & Cheaters and post about the breakup establishes
contact between the parties. It defies logic how this could possibly fit the characterisation prohibited by the
protective order. There is no particularity to social media posts because they are dispersed into what
many have called an anonymous black hole. Take Facebook. Facebook disseminates comments or
commercial advertisements to a limited or confined universe, (friends) or the universe (public). Users can
particularize a specific post by writing the name of a fellow “Facebooker” in the post. Absent embedding a
name, however, there is no individualized connection or contact.
Yet, is important to note, the sites named by petitioner do not have a limited universe akin to
Facebook. Cheaters, Liars, and analogous sites are by their nature dispersed into a black, anonymous
hole. It is the anonymity of these sites which challenges the notion that contact exists at all, much less
between respondent and petitioner. 15
Finally, the allegation regarding dissemination of the Vander Newsletter does not constitute a
violation of the Order. The report was neither crafted nor disseminated to either target or contact Ms.
Kosmides. It had nothing to do with Ms. Kosmides; rather the report elucidated accomplishments by
Vander staff during the prior year. Such information is routinely disseminated by businesses to subscribers

preposition used. It’s no different with words or phrases expressed in court orders. See,
https://www.bing.com/search?q=what+is+a+preposition+definition&qs=AS&pq=what+is+a+preposition&sk=LS1EP1AS2&sc=6-
21&cvid=6A892B17890D4215A89D04867B61E808&FORM=QBRE&sp=5

15
See generally, Abdulahi, Aida , et.a.,A Study on the Negative Effects of Social Networking Sites Such as Facebook among
Asia Pacific University Scholars in Malaysia, 5 Int’l Jour. Bus & Soc Sci., 133 (2014); See also, Mooder, Social Media Reinvented
Apathy, Medium, December 19, 2016 [Commenting on the inevitable disconnect that anonymity of the internet
produces.”Online…there’s no one on the receiving end of our jabs and tirades and vitriol. All we see are words on a screen in a text
box. Empathy is null and void.”]

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and partners. And one such subscriber was petitioner. Her subscription lasted until February of 2018 .
Thus, the Newsletter reaching petitioner was a consequence of a business practice to inform subscribers.
The events articulated by petitioner are meaningless in the absence of identifying the relevant
provisions of the Order allegedly violated. Here, petitioner references #14 in the Order. #14, however,
contains language16 which is at once overbroad and vague, thus, failing to put respondent on notice as to
what specifically is prohibited and against whom. Failure to provide adequate notice violates due process
as well as conceptions of fundamental fairness.
Additionally, because none of the allegations conform to the plain language of # 14, which prohibits
communication or contact with Kathryn Kosmides, the petition fails to state facts sufficient to support a
finding of a violation. Thus, as a matter of law, the petition must be dismissed.

III. The allegations of stalking and harassment violate conceptions of due process because they fail
to provide notice of the offense violated or facts specific to support either offence.
Section 812.1 FCA, enumerates the family offenses which, inter alia, confers subject matter
jurisdiction on family court over specific acts by a respondent. The list is long, and it is specific. Stalking
and harassment are included but there are myriad iterations of each offense, including stalking in the first,
second, third or fourth degree. As for harassment it includes, harassment in the first and second degree
and aggravated harassment. Once again, respondent is left to guess which theory petitioner alleges was
violated and what facts support the offenses and their specific elements.
Not all iterations of stalking or harassment are equal; each has its own theory with requisite
elements. Aggravated harassment contains seven different theories of prosecution which require facts, not
conclusory statements, such as “Respondent’s continuing harassment and stalking has…”.17 Indeed, due
process requires specificity so that respondent is on notice as to whether specific conduct is constitutive of
a theory of prosecution under PL.240.30. In keeping with the oblique construct of the instant petition,
respondent remains clueless as to whether the allegations implicate aggravated harassment as defined in
PL 240.30(1)(a) or (b); PL 240.30 (2) or subsection 3, 4,or 5.18

16
Specifically, with complete capitalization, the Court prohibits, “no third[-]party contact, no social media contact, no contact at
all.”
17
See, Verified Petition, para.8.
18
Aggravated Harassment:
A person is guilty of aggravated harassment in the second degree when:

1. With intent to harass another person, the actor either:

(a) communicates, anonymously or otherwise, by telephone, by computer or any other electronic means, or by mail, or by
transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property
of, such person, or a member of such person's same family or household as defined in subdivision one of section 530.11 of the
criminal procedure law, and the actor knows or reasonably should know that such communication will cause such person to
reasonably fear harm to such person's physical safety or property, or to the physical safety or property of a member of such
person's same family or household;  or
(b) causes a communication to be initiated anonymously or otherwise, by telephone, by computer or any other electronic means,
or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm

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 Lack of notice violates due process because it impedes key aspects of fundamental fairness,
including the ability to respond to and defend against claims that one committed a family offense or
violation of an order of protection. Notice is key but such notice is of special import when the ultimate
finding is violation of an Order of Protection which may result in confinement in a county jail.
Notice is not only lacking it is non-existent; consequently, the petition is constitutionally defective
and must be dismissed.

IV. There is no violation of the Order of Protection because the letters, emails, text messages and
postings on social media are protected speech.

Freedom of expression, manifested through speech, is constitutive of one’s ability to establish

agency, autonomy- two constituents of liberty.19 Indeed, free speech is the cornerstone of the
Enlightenment and the 18th Century revolutions in American and France. Yet, freedom of speech and
expression are not absolute; no right contained in the Bill of Rights is unfettered.20
The crimes which are foundational to family offenses recognize the moderated effect of freedom of
speech in a complex society. Aggravated harassment requires a threat to harm persons or property,21
Harassment in the second degree will hold respondent to account only where conduct or acts have no
legitimate purpose.22 Clearly, not all speech is restricted even when it is odious, obnoxious or offensive. 23

to the property of, such person, a member of such person's same family or household as defined in subdivision one of section
530.11 of the criminal procedure law , and the actor knows or reasonably should know that such communication will cause such
person to reasonably fear harm to such person's physical safety or property, or to the physical safety or property of a member of
such person's same family or household;  or
2. With intent to harass or threaten another person, he or she makes a telephone call, whether or not a conversation ensues,
with no purpose of legitimate communication;  or
3. With the intent to harass, annoy, threaten or alarm another person, he or she strikes, shoves, kicks, or otherwise subjects
another person to physical contact, or attempts or threatens to do the same because of a belief or perception regarding such
person's race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation, regardless
of whether the belief or perception is correct;  or
4. With the intent to harass, annoy, threaten or alarm another person, he or she strikes, shoves, kicks or otherwise subjects
another person to physical contact thereby causing physical injury to such person or to a family or household member of such
person as defined in section 530.11 of the criminal procedure law ;  or
5. He or she commits the crime of harassment in the first degree and has previously been convicted of the crime of harassment
in the first degree as defined by section 240.25 of this article within the preceding ten years.
Aggravated harassment in the second degree is a class A misdemeanor.

19
See, C. Edwin Baker, The Process of Change and the Liberty Theory of the First Amendment, 55 S. Cal L, Rev.293 (1982);
Redisch, The Value of Free Speech, 130 U. PA. L.Rev.591(1982); John Stuart Mill, ON LIBERTY
20 Perhaps a lesson to be learned by proponents of the 2nd Amendment
21 See, PL 240.30 (1)(a).
2222 See, PL.240.26 (3).
23 See, People v Mangano, 100 N.Y.2d 569 [found defendant’s message on a government telephone answering machine to be

crude and offensive but did not fall into the “proscribed class of speech,” prohibited by the statute.]

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 There is no doubt, especially in relation to harassment, one must assess the content of the
communication to determine whether it is threatening to persons or property. In assessing the alleged
words uttered by Mr. Sine, in any of the emails or posting, that the words used transmitted a threat to
petitioner. The emails to Dolan, Gardner, and all other third parties merely gave insight into the feelings of
a former intimate partner deeply affected by a difficult break-up and distressed how he was being
portrayed.
There is no question the posts on “Cheaters Planet” and “Liar’s and Cheater’s” questioned
petitioner’s fidelity and honesty. While petitioner may find the posts offensive, they do not constitute a
threat to harm either petitioner, her mother, her colleagues or business associates. In fact, counsel doesn’t
characterise Sine’s postings as a threat to cause physical harm. She doesn’t even call them obscene or
obtuse; rather counsel characterized the comments as “malicious and defamatory.” While malicious and
defamatory remarks may constitute tortious conduct, it does not constitute the type of speech prohibited by
the penal law or the Family Protection and Domestic Violence Intervention Act of 1994
It is important to remind, there is no right to be free from offensive words. One does have a right,
and the State should restrict words which threaten harm, as defined by relevant sections of the penal law
and Sec 812.1 of the FCA.
As for “legitimate purpose” respondent’s communication with third parties was defensive, not
offensive. His writing was responsive to her allegations; his posts a catalog of his knowledge and
understanding of petitioner and events which led up to their relationship ending. Simply put, his
communication with his partners and clients (Vander End Newsletter) colleagues and friends was a
legitimate defense to what petitioner was proffering.

CONCLUSION
Based on consistent violations of due process in both the December 1 st Order of Protection and the
submitted violation petition, Respondent respectfully requests, this Honorable Court to grand the Motion
and dismiss the petition and the underlying Order, with prejudice.

Dated: June 6, 2019

____________________
Miccio McDaniel & Pelosi
Two Pearl Street
Kingston, New York 12401
By: Kris McDaniel-Miccio, Esq.

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