## Facts

- A court issued an order of protection for Katherine Zito against her ex-husband, Zito, barring him from coming near her, communicating with her, or harassing her.
- Katherine later alleged that one morning Zito rode a motorcycle past her home, stopped and revved the engine outside, and yelled insults at her.
- Based on that incident, the People charged Zito with criminal contempt for disobeying the protective order.
- At trial, both Katherine and Zito testified that after the order was issued they nonetheless spent several evenings together at Katherine’s home.
- Zito testified that Katherine sometimes picked him up so he could stay at her home, and on other occasions he drove himself there.
- The court focused on what effect the parties’ ongoing, voluntary contact—especially repeated cohabitation—had on the People’s ability to prove a criminal violation of the protective order for the motorcycle incident.

## Issues

1. Whether the People can prove criminal contempt for violating an order of protection when the protected party repeatedly invited and permitted the defendant to have contact and stay at her home after the order was issued.

## Decision

- The court declined to impose criminal contempt on these facts.
- The court reasoned that the parties’ repeated, voluntary cohabitation after issuance of the order created reasonable doubt that the charged conduct amounted to a willful disobedience of the order.
- Although an order of protection remains a court order unless modified or vacated by the court, the protected party’s repeated initiation and acceptance of prohibited contact was relevant to whether the defendant acted with the culpable state of mind required for criminal contempt.
- Given the testimony that Katherine regularly allowed and facilitated Zito’s presence at her home despite the order’s terms, the People did not establish beyond a reasonable doubt that Zito’s conduct in the charged incident constituted a criminally punishable violation.

## Legal Principles

- Criminal contempt for violating an order of protection requires proof beyond a reasonable doubt that the defendant knowingly and willfully disobeyed a lawful court order.
- An order of protection is not privately changeable by the parties; only the issuing court may modify, suspend, or vacate it.
- Even when an order remains in effect, evidence that the protected party repeatedly invited, allowed, or facilitated contact barred by the order may bear on whether the People can prove the defendant’s willful disobedience.
- Where the parties’ conduct after issuance shows a consistent pattern of mutual disregard of the order’s no-contact or stay-away terms, that pattern can create reasonable doubt as to the defendant’s criminal intent on the charged occasion.

## Conclusion

People v. Zito held that a criminal-contempt conviction could not be sustained where, after issuance of a protective order, the complainant repeatedly invited and permitted the defendant to have contact and stay in her home, leaving the People unable to prove beyond a reasonable doubt that the alleged later incident reflected willful disobedience of the court’s order.


People v. Zito, 2001 WL 1263340 (2001)