text:
The legislature further finds and declares that domestic violence is criminal conduct occurring between members of the same family or household which warrants stronger intervention than is presently authorized under New York's laws. The integrity of New York's families from its youngest to its oldest members is undermined by a permissive or casual attitude towards violence between household members. The legislature further finds and declares that in circumstances where domestic violence continues in violation of lawful court orders, action under the criminal law must remain in place as a necessary and available option.
Notwithstanding the evolution of the law of domestic violence in New York, death and serious injury by and between family members continues unabated. The victims of family offenses must be entitled to the fullest protections of our civil and criminal laws.
Therefore, the legislature finds and determines that it is necessary to strengthen materially New York's statutes by providing for immediate deterrent action by law enforcement officials and members of the judiciary, by increasing penalties for acts of violence within the household, and by integrating the purposes of the family and criminal laws to assure clear and certain standards of protection for New York's families consistent with the interests of fairness and substantial justice." (Emphasis supplied)
3 Justice Scalia states: "to place these cases in context, one must understand that they are the consequence of an historically anomalous use of the contempt power. In both Dixon and Foster, a court issued an order directing a particular individual not to commit criminal offenses (In Dixon's case, the court incorporated the entire criminal code, in Foster's case, the criminal offense of simple assault.) That could not have occurred at common law, or in the 19th century American judicial system.
"At common law, the criminal contempt power was confined to sanctions for contempt that interfered with the orderly administration of judicial proceedings. 4 W. Blackstone, Commentaries* 280-* 285. That limitation was clearly followed in American courts. See United States v. Hudson and Goodwin, 7 Cranch. 32, 34, 3 L.Ed. 259 (1812); R. Goldfarb, The Contempt Power 12-20 (1963). Federal courts had power to 'enforce the observance of order', but those 'implied powers' could not support common law jurisdiction over criminal acts. Hudson and Goodwin, supra, at 34. In 1831, Congress amended the Judiciary Act of 1789, allowing federal courts the summary contempt power to punish generally 'disobedience or resistance' to court orders § 1, Act of March 2, 1831, 4 Stat. 487-488. See Bloom v. Illinois, 391 U.S. 194, 202-204, 88 S.Ct. 1477, 1482-1484, 20 L.Ed.2d 522 (1968) (discussing evolution of federal courts' statutory contempt power).
"The 1831 amendment of the Judiciary Act still would not have given rise to orders of the sort at issue here, however, since there was a long common-law tradition against judicial orders prohibiting violation of the law. Injunctions, for example, would not issue to forbid infringement of criminal or civil laws, in the absence of some separate injury to private interest. See, e.g., 3 Blackstone, supra, at O426, n. 1; J. High, Law of Injunction § 23, pp. 15-17, and notes (1873) (citing English cases); C. Beach, Law of Injunctions §§ 58-59, pp. 71-73 (1895) (same). The interest protected by the criminal or civil prohibition was to be vindicated at law--and though equity might enjoin harmful acts that happen to violate civil or criminal law, it would not enjoin violation of civil or criminal law as such. See e.g. Sparhawk v. The Union Passenger R. Co., 54 Pa.St. 401, 422-424 (1867) (refusing to enjoin railroad's violation of Sunday closing law), Attorney General v. The Utica Insurance Co., 2 Johns. Ch. 371, 378 (N.Y.1817) (refusing to enjoin the violation of banking statute)." (United States v. Dixon and Foster, 509 U.S. ----, 113 S.Ct. 2849, 2855, 125 L.Ed.2d 556 [1993].
4 It is noted that in United States v. Dixon and Foster, 509 U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993), Foster was found guilty beyond a reasonable doubt of four counts of criminal contempt (three violations of Ana Foster's civil protection order, and one violation of her mother's civil protection order) and was imprisoned for an aggregate 600 days (some twenty months) after a three day bench civil trial (See § 16-1005[f] authorizing contempt punishment: Sup.Ct. of D.C. Intrafamily Rules 7[c], 12[e] [maximum punishment of six months' imprisonment and $300 fine]. This did not perturb the Supreme Court despite its holding in Codispoti some nine years earlier.
DC Intrafamily Rule 7 "motions" governing Intrafamily Proceedings provides in subdivision "c" for a motion for contempt for violation of protection order. Rule 12 "contempt" as to motions for contempt for violation of a civil protection order states:
"(b) Violation of protection order. A motion alleging one or more violations of a temporary order or civil protection order shall be filed and served pursuant to Rule 7(c).
"(c) Contempt hearing procedures.
"(1) The respondent has the right to counsel and shall be so advised.
"(2) Anytime the judge contemplates imposing a sentence of imprisonment if the contempt is proven beyond a reasonable doubt, the judge may appoint counsel for the respondent. The court may also request that the Corporation Counsel represent the petitioner.
"(3) If the respondent requests a continuance, the judge may grant the continuance on any one or all of the following conditions:
"(A) That any existing temporary protection order or civil protection order be extended,
"(B) That additional conditions to ensure the safety of the moving party be imposed (e.g., vacation of the premises pending the continuance; a temporary total ban on visitation; awarding temporary custody of a minor child of the parties),
"(C) That the respondent receive no further continuances.
"(4) Both parties have the right to present sworn testimony of witnesses and other evidence in support of or in opposition to the motion. The respondent may not be compelled to testify or give evidence.
"(d) Application of the spousal privilege. One spouse is a competent and compellable witness against the other and may testify as to confidential communications, but testimony compelled over a claim of privilege shall be inadmissible as evidence in a criminal trial over the objection of a spouse entitled to claim that privilege.
"(e) Punishment upon finding of contempt by the Division. Contempt may be punished by a fine or penalty of not more than $300.00 or by imprisonment for not more than six (6) months, or both." (Emphasis supplied).
In an action to recover damages for personal injuries, the criminal defendant appeals from a judgment of the Supreme Court, Nassau County (Winick, J.), dated December 2, 1997, which, upon a jury verdict, is in favor of the plaintiff and against it in the principal sum of $1,550,000.
ORDERED that the judgment is reversed, on the law, and a new trial is ordered as to both liability and damages, with costs to abide the event.
The plaintiff produced evidence which tended to establish that, shortly after entering her car on the evening of February 13, 1992, her husband, Teodoro Morales, who had been hiding in the back seat, brandished a knife and commanded her to drive home. The plaintiff then drove away and continued driving until, upon seeing a Nassau County police car, she jumped out of her car, and screamed to the officers for assistance. The plaintiff testified that she produced a copy of an order of protection issued by the Family Court, Queens County, and displayed it to one officer, who then showed it to another officer. The plaintiff testified that she asked the officers to arrest her husband based on the order of protection and a warrant which she told the officers was outstanding. The plaintiff's evidence supports the conclusion that, in response to her entreaties, one of the officers stated words to the effect, "lady, please, go, go, we gonna take care him. Go lady". The plaintiff testified that she drove away believing that her husband, who had been removed from the car, had been, or would be, arrested.
The plaintiff later testified that, at approximately 6:30 A.M. on the morning of February 14, 1992, her husband attacked her in her driveway with a machete. The plaintiff now seeks to impose liability for the injuries inflicted in this attack on the defendant County of Nassau, based on the alleged failure of the Nassau County Police Officers to arrest her husband. Toward the conclusion of the trial, the criminal defendant requested that the court instruct the jury that any liability on its part was to be apportioned with respect to the liability of the nonparty tortfeasor, Teodoro Morales, the man who intentionally injured the plaintiff. In its decision on this issue (see, Morales v. County of Nassau, 175 Misc.2d 35, 667 N.Y.S.2d 239), the Supreme Court held that such an apportionment charge was not warranted. The court explained why, in its view, the decision of this
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court in Siler v. 146 Montague Assocs., 228 A.D.2d 33, 652 N.Y.S.2d 315, was not controlling. The defendant now appeals from the judgment which was entered after the jury's verdict on liability and damages.
In Siler v. 146 Montague Assocs. (supra), this court held that a merely negligent tortfeasor, such as the landlord in the Siler case, may seek apportionment of liability under CPLR article 16 from the nonparty intentional tortfeasor who actually inflicted the injuries suffered by the plaintiff. We do not agree with the Supreme Court that the facts of the present case remove it from the ambit of our holding in Siler. The social importance which inheres in the strict enforcement of orders of protection relating to domestic violence does not change the essentially secondary nature of the negligence which might be attributed to the defendant in this case, negligence which stands in stark contrast to the act of intentional and criminal violence committed by Teodoro Morales. Also, in our opinion, the law does not impose on police officers a "non-delegable duty" to arrest, within the meaning of CPLR 1602(2)(iv), in every case where the police officers might have the authority to arrest. We find that the "non-delegable duty" exception set forth in CPLR 1602(2)(iv) does not apply to the facts of this case, and we therefore conclude that the Supreme Court erred in refusing to issue an apportionment charge (see also, Van Vlack v. Baker, 242 A.D.2d 704, 663 N.Y.S.2d 49; Perez v. City of Peekskill, 214 A.D.2d 552, 624 N.Y.S.2d 639; cf., Cortes v. Riverbridge Realty Co., 227 A.D.2d 430, 642 N.Y.S.2d 692).
In light of the fact that a new trial is warranted, we note that, upon the new trial, Edward Samuelson, the potentially important witness called by the defendant, who was not permitted to testify for procedural reasons, should be permitted to testify.
The remaining issues raised by the appellant are academic in light of this determination.]]>
Subsequently the court was advised that petitioner had proceeded in Criminal Court, Nassau County, and that respondent was sentenced to one hundred and eighty days' incarceration. Accordingly the supplemental petition dated February 8, 1993 was dismissed. On November 8, 1993, petitioner filed a second supplemental petition alleging that respondent on October 25, 1993, shortly after his release from incarceration, threatened to kill petitioner, that "on November 1, 1993, respondent climbed into petitioner's window from the fire escape, but when petitioner's 15-year-old son saw respondent entering the residence did chase respondent out of the residence with a cooking fork" and that "on November 3, 1993 at approximately 11:30 a.m. respondent followed petitioner when she dropped the child off at the child's day care, and attempted to chase petitioner and when she called police respondent fled." It is noted that the parties' two children David then age 15 and Melissa then age 2 were covered by the order of protection. On November 15, 1993 after a hearing this court found beyond a reasonable doubt that respondent had violated the final order of protection as alleged. At that hearing the parties' oldest child testified against the father. Based on the number of violations, their increasing severity, and mindful that respondent had already served a period of incarceration, in disposition of this supplemental petition, the court civilly committed the respondent for six months and in addition modified the final order of protection to continue for one year, effective November 15, 1993, with the further directions that respondent not interfere with petitioner's custody of the children, remain away from petitioner and the children at all times, and not file or be the source of false allegations of neglect or abuse against the petitioner. Subsequently petitioner filed the third supplemental petition dated March 15, 1994.
2 Recently the legislature approved and the governor signed a bill on June 30, 1994 (L.1994, ch. 222) (S. 8642, A. 11992) entitled "the family protection and domestic violence intervention act of 1994". The majority of the provisions of this act take effect January 1, 1995. Section 1 entitled "Legislative findings" states: "The legislature hereby finds and declares that there are few more prevalent or more serious problems confronting the families and households of New York than domestic violence. It is a crime which destroys the household as a place of safety, sanctuary, freedom and nurturing for all household members. We also know that this violence results in tremendous costs to our social services, legal, medical and criminal justice systems, as they are all confronted with its tragic aftermath.
Domestic violence affects people from every race, religion, ethnic, educational and socio-economic group. It is the single major cause of injury to women. More women are hurt from being beaten than are injured in auto accidents, muggings and rapes combined.
The corrosive effect of domestic violence is far reaching. The batterer's violence injures children both directly and indirectly. Abuse of a parent is detrimental to children whether or not they are physically abused themselves. Children who witness domestic violence are more likely to experience delayed development, feelings of fear, depression and helplessness and are more likely to become batterers themselves.
Too many of New York's elderly residents have become the victims of their own family or household members, leaving these senior citizens without hope or meaningful legal redress.
A great deal of progress has been achieved in the effort to heighten public awareness about domestic violence and to provide services for affected family members. Dedicated individuals, shelter programs and advocacy organizations have been working successfully for years in order to provide refuge, counseling, legal relief and protection to victims of family violence. These efforts have also played a key role in bringing this issue into the open by helping individuals to survive domestic violence and work toward its prevention.
Fortunately, with this heightened awareness has come a considerable shift in the public understanding of, and perspective on, domestic violence. In recent years, for example, what was once largely considered a private matter has come to be more correctly regarded as criminal behavior.
To Be Cont...]]>
However, it is clear that, under the circumstances of this case, petitioner was entitled to present further evidence on the issue of disposition (cf., Quintana v. Quintana, supra [Family Court was not required to hold dispositional hearing "where the court did receive and consider the type of evidence that would have been admitted had the criminal court formally chosen to bifurcate the matter"] ). In particular, we note that petitioner has demonstrated that the fact-finding hearing, which was held before a different Judge from the one determining disposition, was abbreviated by respondent's admission to the family offense of harassment prior to petitioner having had an opportunity to present evidence that she claims would have been crucial to disposition. Most significantly, at the fact-finding hearing, the court terminated the case prior to the planned testimony of an expert on battered women's syndrome, who, according to petitioner's offer of proof, would have helped explain her delayed reaction to the abuse inflicted upon her, her inability to leave the marital home on her own, and the impact of her deafness on her ability to function under hostile circumstances. These were factors relevant not only to fact-finding but to disposition as well. While the court had already ruled that the expert's testimony was germane to the issues presented, it apparently concluded that it was able to reach a conclusion as to the fact-finding portion of the proceeding without the testimony. Under these circumstances, petitioner has demonstrated that she had further evidence relevant to disposition that she should have been permitted to set before the court.
Nor was the necessity of a hearing obviated by the existence of the MHS report. In the appropriate case, it is not impossible that the evidence presented at the fact-finding hearing, if sufficiently broad in scope, could be an adequate basis for a disposition along with a MHS report. However, an MHS report in and of itself does not take the place of the parties' right to present evidence on disposition.
Finally, we note the absurdity of the argument set forth by respondents that there was no need for a dispositional hearing to explore whether an order of exclusion was necessary because the record is clear that respondents ceased harassing petitioner when ordered to do so in the original temporary order of protection. We can hardly require evidence of continuing harassment to be a condition to an order of exclusion in a situation where the respondents, who were found to have committed harassment, remain in the home while their victim has been forced to flee, thereby eliminating both their motivation and opportunity to further abuse her.
Under these circumstances, it is clear that a dispositional hearing was necessary in this matter. We therefore remand for a dispositional hearing before a different Judge of the Family Court (see, Eames v. Eames, 147 A.D.2d 696, 538 N.Y.S.2d 1000), to determine whether an order of protection excluding respondents from the apartment is warranted and whether it should extend for three years.
Accordingly, the order of the Family Court, New York County (Rhoda Cohen, J.), entered on or about July 17, 1996, which, inter alia, denied petitioner's application for a three year order of protection excluding respondents from the marital
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residence, should be reversed to the extent appealed from, on the assault law, without costs, and the matter remanded for a dispositional hearing forthwith before a different Judge of the Family Court.
Order, Family Court, New York County (Rhoda Cohen, J.), entered on or about July 17, 1996, reversed, to the extent appealed from, on the law, without costs, and the matter remanded for a dispositional hearing forthwith before a different Judge of the Family Court.
All concur.
1 The designated offenses include "disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household ..." (Family Ct. Act § 812 ).
2 In this context, petitioner argues quite compellingly that, if the court were going to base its decision on the fact that she had found another place to live and that her husband, who was in a wheelchair, had no place else to go, she should at least have been permitted to present evidence showing that he was not without other relatives in the area who could take him in and that the accommodations that she had since found, i.e., sharing a one-bedroom apartment that was not outfitted with special equipment for the hearing impaired with her daughter, her granddaughter and her daughter's boyfriend, were completely inadequate to her needs.
In two proceedings pursuant to Social Services Law § 384-b to terminate parental rights on the ground of permanent neglect, the father appeals from so much of (1) an order of disposition of the Family Court, Queens County (Lubow, J.), dated January 25, 1996, as, after a fact-finding hearing, terminated his parental rights with respect to his daughter Alicia Shante H., and (2) an order of disposition of the same court, also dated January 25, 1996, as terminated his parental rights with respect to Lenette Faye H., and transferred custody and guardianship rights of the children to St. Christopher-Ottilie and the Commissioner of Social Services of the City of New York for purposes of adoption.
ORDERED that the orders are affirmed insofar as appealed from, without costs or disbursements.
In a proceeding to terminate parental rights based on permanent neglect, the agency must establish as a threshold matter that it exerted diligent efforts to encourage and strengthen the parental relationship (see, Matter of Sheila G., 61 N.Y.2d 368, 474 N.Y.S.2d 421, 462 N.E.2d 1139). The diligent efforts must include "reasonable attempts" at providing criminal counseling, scheduling regular visitation with the child, providing services to the parents to overcome problems which prevent the discharge of the child into their care, and informing the parents of their child's progress (see, Social Services Law § 384-b[7][f]; Matter of Jamie M., 63 N.Y.2d 388, 394-395, 482 N.Y.S.2d 461, 472 N.E.2d 311). An agency which has diligently attempted to reunite the parents and child but was confronted by uncooperative parents is deemed to have fulfilled its obligation (see, Matter of Star Leslie W., 63 N.Y.2d 136, 144, 481 N.Y.S.2d 26, 470 N.E.2d 824).
St. Christopher-Ottilie (hereinafter the Agency) met its burden of establishing by clear and convincing evidence that it exercised diligent efforts to strengthen the parental relationship (see, Social Services Law § 384-b[7][a], [f] ). Among other things, the Agency established reunification goals for the father which included plans to address his needs, including obtaining permanent and adequate housing and attending parenting skills training sessions and domestic violence counseling. The Agency conducted regular plan reviews, it referred the father to services addressed to his needs, and established a regular visitation schedule with the children. The Agency's efforts did not succeed, however, because the father was uncooperative and unresponsive to its efforts, he failed to complete the parenting skills training sessions or obtain permanent and adequate housing, and his visitations with the subject children were sporadic and, on those occasions when he did visit, usually brief.
The criminal record also demonstrates that the Agency met its burden of establishing by clear and convincing evidence that the father
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permanently neglected the children by failing to plan for their future. Despite the agency's diligent efforts, the father failed to avail himself of the various resources necessary for reunification (see, Social Services Law § 384-b[7][c]; Matter of Reggie B., 223 A.D.2d 471, 636 N.Y.S.2d 790; Matter of Dutchess County Dept. of Social Servs. [Tina D.] v. Kenneth D., 213 A.D.2d 714, 624 N.Y.S.2d 455; Matter of Victor James L., 208 A.D.2d 403, 618 N.Y.S.2d 213; Matter of Travis Lee G., 169 A.D.2d 769, 565 N.Y.S.2d 136).]]>
implicates the plural (General Construction Law, § 35; McKinney's Statutes § 252). Patently the Legislature in its Article 8 enactments was and is cognizant that a respondent may commit multiple violations of an order of protection. The plain reading of § 846-a discloses that for each separate finding of violation, for each separate failure to obey the order of protection, a guilty respondent may be [162 Misc.2d 31] committed to jail for a term not to exceed six months. The statute does not mandate that commitments be concurrent. Yet this is precisely the import of the holding by the Appellate Court in Vitti. By such declaration it would be unlawful for Family court to impose, for example, consecutive commitments of one week each. The only explanation for this tortuous conclusion is that the appellate court imposed a construction on the statute that consecutive terms may not exceed six months in total, albeit this is not what they specifically declared.
Since the plain and common-sense meaning of §§ 846 and 846-a is that a respondent who commits separate and distinct violations, not incidental to a single transaction or event, is subject to civil commitment for up to six months on each violation, the grant of such authority implicitly invokes the power to make such commitments run concurrently or consecutively where appropriate. Guidance as to when such civil commitments should run consecutively or concurrently may be obtained from an examination of Penal Law § 70.25 entitled "concurrent and consecutive terms of imprisonment." Since the Family Court Act is silent as to strictures or tenets in this regard, the teachings under the analogue of criminal contempt (a crime) as delineated in the Penal Law are instructive. Study of these teachings discloses that under circumstances where the violations arose out of a single act or transaction, the commitments should be concurrent, but where the violations arose out of separate and distinct acts, consecutive commitments may be properly imposed (See Practice Commentaries by William C. Donnino and Notes of Decisions, McKinneys Penal Law § 70.25).
Respondent's argument that Family Court has no power to impose two consecutive commitments of six months and four months each is not sustainable if predicated on the ground that the Family Court has no power to impose consecutive commitments regardless of the terms of such commitments. Rather, respondent's argument is viewed as articulate in the sense of urging that violation of a civil order of protection is criminal, not civil, contempt and imposition of consecutive commitments in excess of a total period of six months invokes his right to jury trial (See Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 [1974]. Article VI of the U.S. Constitution provides inter alia, that the accused in all criminal prosecutions shall enjoy the right to trial by an impartial jury. It appears that [162 Misc.2d 32] the United States Supreme Court views supplemental proceedings alleging violation of a civil order of protection as a species of criminal contempt. (U.S. v. Dixon and Foster, 509 U.S. ----, 113 S.Ct. 2849, 125 L.Ed.2d 556 [1993]; See Hicks on behalf of Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 [1988]; International Union United Mine Workers of America v. Bagwell, 512 U.S. ----, 114 S.Ct. 2552, 129 L.Ed.2d 642 [1994]. In Duncan v. Louisiana, the United States Supreme Court held that the sixth amendment of the U.S. Constitution as applied to the States through the fourteenth amendment of that constitution requires that one accused of serious crime be offered the right to trial by jury (391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 [1968]. In Baldwin v. New York, the United States Supreme Court ruled that a potential sentence for a criminal offense in excess of six months' imprisonment for that offense is sufficiently severe by itself to take such criminal offense out of the category of "petty" as respects the right to a jury trial. Accordingly, the Supreme Court held that the possibility of imprisonment for one year sentence following conviction before the New York City Criminal Court of jostling was, of itself, sufficient to require that the defendant be afforded the opportunity for a jury trial (399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 [1970].
In Family Court, a court of limited jurisdiction, the court sits as both finder of fact and law. The court has no power to impanel a jury. The legislature in enacting Article 8--Family Offense Proceedings--established
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a civil proceeding designed to protect family members from domestic violence, a major social problem. In authorizing Family Court to extend this protection, the legislature apprehended that jury trials are not institutionalized within Family Court. Justice Scalia in United States v. Dixon and Foster, supra, correctly observed the uniqueness of such grant of power. 3 To reiterate, the issue raised on this [162 Misc.2d 33] motion is not excessiveness of commitment, but whether Family Court has the power to impose consecutive civil commitments for distinct separate acts of willful violations of a civil final order of protection, even though the cumulative term of those consecutive commitments exceeds six months. Recognizing the major social problem of Domestic Violence and the legislative response to this problem, Family Court would be remiss if it did not utilize the authority granted in that response in an appropriate fashion to protect the family and its individual members as warranted. Codispoti v. Pennsylvania, supra, articulates the proposition that the court's criminal contempts power in the area of the orderly administration of judicial proceedings, a power recognized at common law, mandates that if the court awaits the end of the trial to try the contempts occurring in the context of that trial rather than acting summarily to punish each contemptuous act by a defendant as it occurs, defendant must be afforded the opportunity of a jury trial. The circumstances herein are quite different and embrace a specific grant of power to a civil (non-criminal) court to enjoin violation of criminal law as specifically enumerated in a civil final order of protection. For violation of such court order an election is given, not to the state, not to the court, not to the respondent [the alleged perpetrator of the violation], but solely to the petitioner (the alleged victim of the violation) as to which remedy to invoke [162 Misc.2d 34] (Family Court Act § 847). This right of election which is vouchsafed the petitioner by legislative will, cannot be revoked or rendered illusory by judicial fiat unless permeated by an aspect of unconstitutionality. Clearly the two individual contempts committed by the respondent herein were separate offenses for Sixth amendment purposes. As such, they do not transgress or invoke jury trial relief. To hold otherwise, under these circumstances, does a vast disservice to the legislature's efforts to cope with domestic violence. Moreover it has grave implications for the victims of that violence. Judicial will educated by legislative
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sanctions and the social good must enforce a bright line where repeated violations of the order of protection are the norm and not the exception. There is after all, a difference between civil commitment for criminal contempt and a criminal sentence for the crime of criminal contempt.
Accordingly, the court denies respondent's motion seeking reargument of the dispositional order dated April 7, 1994, concluding that under the circumstances herein the court does have the authority to issue consecutive civil commitments for willful distinct and separate violations of the order of protection, albeit the total term of such consecutive commitments exceeds six months. 4
To Be Cont...
In reviewing the charge for legal sufficiency, "each case is fact specific" (Johnson, 95 NY2d at 373) and the allegations must be analyzed in the context of "the whole incident" (Hogle, 18 Misc 3d at 871, citing People v Tichenor, 89 NY2d 769, 776 [1997]). The court must look to the "confluence of events and circumstances" (Hitchcock, 98 NY2d at 591), including both the defendant's acts and his omissions (see Cowley, 83 NY at 472). Possessing loaded and unloaded firearms and ammunition which were fully accessible to children (Hitchcock, 98 NY2d at 591); engaging in domestic violence in front of children against their mother (Johnson, 95 NY2d at 373); repeatedly directing vulgar remarks at a toddler (Simmons, 92 NY2d at 831); and providing beer to teenaged boys (Bergerson, 17 NY2d at 403) are examples of conduct which courts have held likely to be injurious to the physical, mental or moral welfare of children.
Where the criminal charge is predicated on the theory that a parent has engaged in excessive corporal punishment 1, courts have sustained convictions where the child has
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suffered physical injury (see People v Nelson, 2 Misc 3d 133[A] [App Term 1st Dept 2004] ["evidence that defendant repeatedly struck his 13-year-old daughter with a belt, causing injuries, supported the conclusion that defendant knowingly engaged in conduct that was likely to be injurious to his daughter"]; see also People v Fields, 134 AD2d 365 [2d Dept 1987] [conviction upheld where defendant beat his three-year-old son with a belt for approximately 30 minutes, resulting in swelling, bruises and soreness]; cf. People v Phelps, 268 AD2d 692, 692-693 [3rd Dept 2000] [where the defendant inflicted physical injuries upon his daughter by striking her with his hand and/or a belt as a form of corporal punishment, Endangering the Welfare of a Child was an appropriate charge]). Courts have recognized that under Penal Law § 35.10(1) a parent may use physical force against a child when he reasonably believes it to be necessary to promote discipline or the child's welfare (see Fields, 134 AD2dat 365; see People v Prue, 219 AD2d 873 [4th Dept 1995]; People v Thompson, 9 Misc 3d 1123[A] [City Ct, Westchester County 2005]). The force used must be reasonable, however, and the statute does not permit parents to "cruelly beat their children" (Prue, 219 AD2d at 873; Thompson, 9 Misc 3d at 1123[A]). Moreover, where a parent knowingly acts in a manner injurious to a child's welfare by engaging in excessive corporal punishment causing physical injury to achild, he cannot justify those acts because he believed them necessary to promote the child's welfare (see Fields, 134 AD2d at 365). Indeed, the infliction of physical injury against a child "is incompatible with the promotion of his physical welfare" (id.).
In contrast, where a parent or other caretaker engages in corporal punishment which does not cause physical injury to a child, courts have found insufficient proof of Endangering the Welfare of a Child (see Malte v State of New York, 125 AD2d 958 [4th Dept 1986] [evidence that fourth grade teacher picked up ten-year-old girl, placed her on the floor, straddled her legs and hit her backside approximately 12 times in response to her misbehavior "was an insufficient factual predicate" to establish the charge]; see also Thompson, 9 Misc 3d at 1123[A] [defendant who disciplined her children for bad behavior by hitting them with a belt without causing physical injury was found not guilty of the offense]).
Here, the defendant is alleged merely to have grabbed his three-year-old son by the arm and attempted to pull him into the bathroom. Since the complaint does not detail further the surrounding circumstances, it is impossible to determine the reason for the defendant's actions. Regardless, the complaint neglects to describe how, or with what force, the defendant acted. Grabbing a child by the arm and attempting to pull him into a room, while perhaps not a preferred parenting method, is not in and of itself conduct likely to be injurious to the child's physical, mental or moral welfare. Nor is it an act that a defendant would be aware is likely to be injurious to a child's welfare. In the ordinary course of child rearing, parents on occasion will grab and pull small children by the arm in an effort to control their behavior. While some might argue that grabbing and pulling a child's arm is a less than desirable means of discipline, such commonplace conduct, by itself, hardly warrants condemnation as a criminal act.
Page 5
Moreover, contrary to the People's contention, the complaint does not establish that the child was physically injured as a result of the defendant's actions. The allegation that the child suffered substantial pain to his arm is wholly conclusory and unsupported by any objective indication of injury (see Matter of Phillip A, 49 NY2d 198 [1980] [while the question of substantial pain is generally one for the trier of fact, who may consider, among other factors, the subjective reaction of the alleged victim, "there is an objective level below which the question [of substantial pain] is one of law." Accordingly, evidence that the complainant was hit, experienced pain and exhibited a red mark was insufficient to establish substantial pain beyond a reasonable doubt]). The complaint fails to state that the child sustained so much as a bruise, redness or swelling. It does not even allege that the child was crying. The fact that the child was removed to a local Queens hospital does not suffice to prove that he was injured; this fact simply supports the inference that the child was examined for possible injury 2. An examination for possible injury does not permit the inference that an injury occurred. Furthermore, the allegation that the child suffered substantial pain is rank hearsay; the informant mother, Doreen Johnson, cannot attest, as a matter of first party knowledge, to what her child felt 3. Thus, a supporting deposition from the child, in the form of a stenographically recorded voir dire establishing his competence to testify and verifying that he suffered substantial pain as a result of the defendant's actions is necessary to corroborate this allegation (see People v Claxton, 160 Misc 2d 550, 553-554 [Crim Ct, Bronx County 1994]; see also People v Soler, 144 Misc 2d 524, 527-529 [Crim Ct, NY County 1989]). No such voir dire has ever been filed.
In sum, the non-hearsay factual allegations of the complaint do not make out a prima facie case for Endangering the Welfare of a Child. The defendant's motion to dismiss for facial insufficiency therefore is granted. The defendant's remaining motions are moot.
This constitutes the decision and order of the Court.
Dated: June 24, 2010
Queens, New York
Elisa S. Koenderman, JCC
1. Although the complaint identifies the informant Doreen Johnson as Zyhare Johnson's mother, it does not identify the defendant as the child's father. Given that the defendant bears the same last name as both the mother and child, and that the incident is alleged to have occurred at night in the bathroom of what may reasonably be inferred to be a private residence, it further is reasonable to infer that the defendant is the child's father.
2. The court notes that such an examination is often protocol for the Administration for Children's Services in cases of suspected child abuse or neglect by a parent or guardian. Indeed, in their response, the People concede that the child was brought to the hospital "to be checked for injuries" (People's Affirmation in Opposition, p. 5).
3. A supporting deposition from Doreen Johnson was filed with the complaint at arraignment.
Further, while we must remain sensitive to the fact that the Family Court must deal with the practical realities of the impact of its decisions on the safety and well-being of the litigants before it, we note that the court should not base its decision solely on the fact that one party has found another place to stay and the other has not. 2 A victim of the outrageous and life-threatening sort of abuse set forth in this matter cannot be held hostage to the potential homelessness of her abuser, who created the intolerable situation in the first instance.
Moreover, in addition to its failure to consider excluding respondents from the home, we find that the Family Court erred in not considering whether the order of protection should extend for three years. Section 842 of the Family Court Act sets out the conditions which may be granted under an order of protection, and it provides that a final order of protection may extend for one year
or for a period not in excess of three years upon a finding by the court on the record of the existence of aggravating circumstances as defined in paragraph (vii) of subdivision (a) of section eight hundred twenty-seven of this act, which provides, in pertinent part, that aggravating circumstances shall mean physical injury or serious physical injury to the petitioner caused by the respondent, the use of a dangerous instrument against the petitioner by the respondent, a history of repeated violations of prior orders of protection by the respondent, prior convictions for sex crimes against the petitioner by the respondent or the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and occurrences which to the court constitute an immediate and ongoing danger to the petitioner, or any member of the petitioner's family or household.
We categorically reject respondents' argument that a petitioner must specifically state in the petition that "aggravating circumstances" exist in order for the court to issue a three-year order of protection upon disposition. There is certainly no such requirement in the statute. Clearly, it is
Page 454
for the court to determine, on the evidence before it, whether such circumstances exist, and the court is in no way barred from doing so merely because the petitioner did not use certain special language in her petition.
Respondents also argue that, regardless of whether the court erred in determining that it did not have the power to grant petitioner the relief she requested, petitioner has not demonstrated that she was entitled to a dispositional hearing because all of the facts relevant to her claim were presented in the fact-finding hearing and those facts demonstrate that the order issued by the court was the appropriate relief under the circumstances.
To Be Cont...]]>
By order and decision dated March 6, 1997, the Court decided the defendant's omnibus motions. As a branch of the motion under each indictment, the defendant challenged the Counts of the Indictment, charging Criminal Contempt in the First Degree (Penal Law § 215.51) as being violative of the Ex Post Facto clauses of the United States and New York Constitutions, and in the alternative, violative of the defendant's due process rights.
The Court denied that branch of the motions without further elaboration.
Defendant requested and received an opportunity to reargue the Court's decision. Upon reargument, the Court adheres to its original decision.
The Supreme Court of the United States has stated that there are two critical elements necessary to make a criminal or penal law ex post facto: 1) it must be retrospective, and 2) it must disadvantage the offender affected by it, (Champelle v. Coombe, 567 F.Supp. 345; Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17). Although a longer sentence disadvantages a defendant, the statute is not ex post facto because it merely provides enhanced punishment for the instant offense, not the prior offense, (Champelle v. Coombe, supra).
The constitutional prohibition in the Ex Post Facto clause extends to any statute which punishes as a crime, an act previously committed, which was innocent when done; which makes more burdensome, the punishment for a crime after its commission; or which deprives the individual charged with a crime of any defense available according to law at the time when the act was committed, (People v. Hudy, 73 N.Y.2d 40, 538 N.Y.S.2d 197, 535 N.E.2d 250).
The crime for which defendant was charged was in existence when he committed the crime. The behavior complained of in the indictment was not innocent behavior when committed; nor is the defendant's punishment being increased for his prior crimes.
The legislative intent behind increasing the penalties was to protect the safety of victims of domestic violence by strengthening the penal law provisions relating to violations of orders of protection, (Mem. in Support, McKinney's New York Session Laws, 1996, at 2309). Clearly, the legislative intent is prospective rather than retrospective.
An analogous statute is the Second Felony Offender Statute, (PL 70.06) which has been held constitutional. The rationale presented in support of the constitutionality of this statute, is that the enhanced sentence is applicable to the current crime, not an additional penalty for the prior offense, (People v. Morse, 62 N.Y.2d 205, 476 N.Y.S.2d 505, 465 N.E.2d 12; People v. Pendergrass, 115 A.D.2d 497, 495 N.Y.S.2d 721; People v. Johnson, 104 A.D.2d 1050, 480 N.Y.S.2d 958; People v. Aiello, 93 A.D.2d 864, 461 N.Y.S.2d 370; People v. Butler, 92 A.D.2d 1071, 461 N.Y.S.2d 913; People v. Mangiapane, 87 A.D.2d 851, 449 N.Y.S.2d 244).
Defendant's claim herein is indistinguishable from those regarding enhanced sentences as a second felony offender.
The criminal defendant is charged with a crime which he committed while a valid order of protection was in effect. He had fair warning of the nature of the proscribed conduct in advance of his commission of the offense, (People v. Morse, supra).
Page 569
That branch of the defendant's motion is, in all respects, denied. The statute is determined to be constitutional and not violative of the Ex Post Facto clause of the United States Constitution or the Constitution of the State of New York.]]>
This holding in a practical sense constitutes a judicial fiat that regardless of the number of separate willful violations committed by a criminal respondent under an extant order of protection, the respondent risks civil commitment under Family Court auspices for only up to six months. The potential absurdity may be illustrated in numerous ways. For example, a criminal respondent having been found guilty beyond a reasonable doubt of willfully violating an order of protection may be civilly committed for six months, but the commitment may be suspended on condition the respondent not further violate the order of protection. Upon leaving the courthouse, the respondent hits the petitioner. Respondent returns before the court on this violation upon a new supplemental petition within a [162 Misc.2d 26] day or two of the prior order of commitment. Petitioner has elected to proceed before the Family Court. Having been found guilty of this new violation beyond a reasonable doubt, the court imposes a further six month term of civil commitment, lifts the suspension on the prior commitment and directs they run consecutively. Respondent presents the appellate holding in Vitti and educates the Family Court Judge in powerlessness to impose consecutive civil commitments which will exceed a six month total. Respondent and the court acknowledge to petitioner that respondent got a "free shot". Another scenario: respondent assaults petitioner in violation of an order of protection. Petitioner files a supplemental petition in Family Court alleging such violation. A summons is issued for respondent. Respondent is served. Before the return date, respondent assaults petitioner again. Another supplemental petition is filed or possibly petitioner amends the supplemental petition to allege this new assault. A warrant issues for respondent's arrest. Respondent prior to execution of the warrant hits petitioner a third time. Petitioner elects to bring respondent before the Family Court for all three violations. Because of the history of violence, the intransigence of respondent and petitioner's refusal to proceed criminally against respondent, the court determines to impose three terms of civil commitment to run consecutively. Respondent educates the petitioner and the court on its powerlessness by citing the Third Department holding in Vitti. To state the obvious: if the appellate holding in Vitti is a correct proposition of law, Family Court's ability to extend safeguards and protection under Article 8 in the arena of domestic violence is seriously compromised.
Study of the legislative history underlying Article 8 and the plain language of the statute as well as the public policy imbued therein prompts the conclusion that the appellate court in Vitti engaged in judicial legislation. Accordingly this court respectfully urges that it is not bound by such holding. As Family Court Act § 846 entitled "Petition; violation of court order" is a specific grant of authority to Family Court providing a civil remedy for violation of a Family Court Order of disposition in the form of an Article 8 order of protection, the supplemental proceeding to enforce the order of protection is not embraced within the traditional contempt powers of the Family Court (Family Court Act § 156). Family Court Act § 846 states in pertinent part that petitioner who has obtained a lawful order of protection of Family Court, may [162 Misc.2d 27] petition Family Court for enforcement of that order "requiring the respondent to show cause why respondent should not be dealt with in accordance with section eight hundred forty-six-a of this part" ( § 846[b]. Section 156 authorizes Family Court to apply judiciary law civil and criminal contempt sanctions "unless a specific punishment or other remedy for such violation is provided in this act or any other law" (Family Court Act § 156). This provision "is meant to reflect the original intent to prohibit the Court from considering as a contempt a violation of an order of disposition." (Besharov: Practice Commentary to Family Court Act § 156, McKinney's Consolidated Laws of New York Annotated, Book 29A, Part I p. 98 (1983)). Accordingly, the contempt envisioned under Family Court Act § 846 which is embraced in "a finding that the respondent wilfully failed to obey the order" and which "may result in commitment to jail for a term not to exceed six months" is a power distinct from traditional civil and criminal contempt as envisioned under and embraced by the judiciary law.
Page 588
Family Court Act § 846 (Added L.1980, c. 530, § 10) and § 846-a, were enacted to "establish a formal procedure (and specific remedies) for the willful violation of a lawful court order" (Besharov: Practice Commentary to Family Court Act § 846, McKinney's at p. 202). The Legislative history of § 846 discloses that it came into being as part of an act to amend the family court act, the domestic relations law, the judiciary law, the criminal procedure law and the penal law, in relation to family offenses and to repeal certain provisions of the family court act relating thereto. The bill jacket and preamble show that the legislature was aware that the activity embraced within a family offense could occur on one occasion (family offense) or be displayed on separate, distinct and repeated occasions (family offenses). The executive memorandum filed with the assembly and senate bills clearly shows an intent "to clarify and expand provisions for preliminary relief and enforcement of orders of protection" and recognized that "(v)iolence in the home is as serious a breach of public order and safety as violence in the streets. Family violence is learned by children who take the violent response into the schools and streets, and later transmit it to their children. Strengthening of legal sanctions against violence in the home is a step toward stopping it in individual cases...." (Governor's Mem, 1980 McKinney's Session Laws of NY, at 1877-1878.) Documentation supporting the bills noted the following: authority is granted [162 Misc.2d 28] to Family Court to entertain petitions for violations of protective orders and complainant is given the option of which court to proceed in, either Family or Criminal Court (State of New York Dept. of Health, Office of Public Health); the enactment "clarifies and expands upon existing provisions of law regarding relief and enforcement procedures for victims of family offenses and domestic violence" and "would result in a general improvement in the ability of such victims to obtain protection from further family violence " (Memorandum New York State Department of Social Services Bill Jacket, L.1980, ch. 530) (Emphasis supplied); the "major thrust of this bill is to indicate a process for enforcement of orders of protection in family offense proceedings issued by a family or a criminal court" (Memorandum of Office of Court Administration Bill Jacket, L.1980, ch. 530); "(t)he bill will also make it easier for victims of domestic violence to file petitions for orders of protection, and to have them enforced " (Mem. of NYS Counsel on Children and Families Bill Jacket, L.1980, ch. 530 [emphasis supplied].
The State Legislature in liberalizing the statutes to effect greater protection to the victims of domestic violence by enactment of L.1980, c. 530, is deemed cognizant that Family Court is a non-jury institution wherein the court sits as both finder of fact and of law. At the time of this statutory enactment, Family Court Act § 847 provided and still provides: "An assault, attempted assault or other family offense as described in section eight hundred twelve of this article which occurs subsequent to the issuance of an order of protection under this article shall be deemed a new offense for which the petitioner may elect to file a violation of order of protection petition, or a new petition or initiate a proceeding in a criminal court." This election is with the petitioner and not with the court whether at trial or appellate level. As noted by Besharov: "This section gives to the petitioner a choice of remedies for a family offense committed after the issuance of an order of protection. The most important option it gives the petitioner is, of course, the right to reconsider the original election of a civil remedy and to initiate a criminal prosecution" (Practice Commentary, McKinney's Book 29A, Part I, p. 207 [1983]. Accordingly it is clear that the legislature has created a sui generis civil remedy for violation of a Family Court Order of Protection in Family Court, to wit a supplemental petition alleging such violation or violations, if more than one, under Family Court Act §§ 846, 846-a and 847. The authority specifically[162 Misc.2d 29] granted by the legislature to Family Court under § 846-a reflects a spectrum of powers much broader than that embraced within civil or criminal contempt as envisioned by the Judiciary Law. This is a unique grant of power and, as already elucidated above, is intended to bolster, not defeat
Page 589
nor impair, enforcement of orders of protection. 2
To Be Cont...
The complaint alleges that Doreen Johnson informed Police Officer John Vitale that on or about December 12, 2009 between 10:00 p.m. and 10:55 p.m. inside of 146-04 Sutter Avenue, she observed the defendant Phillip Johnson grab her three-year-old son Zyhare Johnson by the arm and "[attempt] to pull him into the bathroom, causing substantial pain to [Zyhare Johnson's] arm." The complaint further alleges that thereafter Zyhare Johnson "was removed to a local Queens hospital for said injuries."
The criminal defendant claims that these factual allegations are insufficient to demonstrate that he knowingly acted in a manner likely to be injurious to the child's physical, mental or moral welfare. Moreover, the defendant asserts that the allegation that the child suffered "substantial pain" is uncorroborated hearsay and does not indicate that the child was injured as a result of his actions.
The People counter that the non-hearsay allegations of the complaint establish that the defendant "grab[bed] a three-year-old child by the arm, and drag[ed] him into a bathroom" and that "the child was then removed to a local hospital to be checked for injuries." Further, the People contend that although they are not required to allege that the defendant caused physical injury to the child, the factual allegations establish that Zyhare Johnson "sustained physical injury' as that term is defined in the Penal Law... in that the actions of the criminal defendant caused [Zyhare Johnson] substantial pain." Accordingly, the People claim that "collectively [the factual allegations of the complaint] disclose facts and circumstances from which a reasonable person can conclude that force was used by the defendant against a three-year-old child, and whenever force is used against a young child, injury is likely to occur."
Under Penal Law 260.10(1), "a person is guilty of endangering the welfare of a
Page 3
child when he knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old or directs or authorizes such child to engage in an occupation involving a substantial risk of danger to his life or health."
The aim of the statute is to protect "the physical health, morals and well-being of children...." (People v Bergerson, 17 NY2d 398, 401 [1966]). The statute is broad in scope and is not limited to protection against the perpetration of sex crime offenses upon children but in fact extends "to other dangers as well" (id.; see also People v Cruz, 152 Misc 2d 436, 438-439 [1991]).
A defendant need not commit an affirmative act directed at a child (see People v Hitchcock, 98 NY2d 586, 591 [2002]; People v Johnson, 95 NY2d 368, 371-372 [2002]) nor cause actual harm to a child (see Johnson, 95 NY2d at 371; see also People v Duenas, 190 Misc 2d 801 [App Term, 2d Dept 2002]) to be guilty of Endangering the Welfare of a Child. To incur criminal liability, a defendant must engage in conduct "which [he] knows will present a likelihood' of harm to a child" (id. at 372). The defendant "must simply be aware that his conduct is likely to result in harm to a child, whether directed at the child or not" (id. at 371-372, citing PL 15.05[2]; see also People v Simmons, 92 NY2d 829, 830 [1998]). Nevertheless, the harm as a result of the defendant's actions must be likely and not merely possible (see id. at 371; see also Duenas, 190 Misc 2d at 803).
To Be Cont...
Petitioner's oldest son also corroborated the abuse against his mother, stating that it was often precipitated by drinking. He recounted witnessing the 1975 shooting, and he also testified that his stepfather had sexually abused him from the time he was seven or eight until he was in ninth
Page 451
grade, at which time he left home to live on the streets to escape the abuse.
On August 18, 1995, the court informed counsel that it was terminating the fact-finding hearing because sufficient evidence had already been presented to show that respondents had committed the family offense of harassment. Petitioner's counsel objected, arguing that the remainder of the evidence would establish far graver offenses. The court overruled the objection and instead offered respondents the option of admitting to harassment, in which case they could remain in the marital residence pending disposition. In the alternative, it informed them that it would make a finding of harassment and would exclude them from the apartment pending disposition. Respondents admitted to harassment. The criminal court thereupon extended the ex parte order of protection requiring them not to harass petitioner and ordered Mental Health Services ["MHS"] to evaluate the parties and render a recommendation as to disposition.
Although that report was prepared, it failed to make a recommendation as to disposition. The matter was set down for disposition, but was transferred several times to different Judges for various reasons, including the failure of the court to provide an appropriate interpreter for petitioner, and the transfer to another county of an assigned Judge. Ultimately, on July 17, 1996, 18 months after petitioner had fled her home to escape from the abuse and filed petitions, the matter appeared before Judge Cohen for a dispositional hearing. However, rather than hearing testimony, the court issued a ruling summarily denying a three-year order of protection and denying the request that the order of protection exclude the respondents from the marital home, and instead issued a one-year order of protection merely requiring respondents to stay away from petitioner. The criminal court stated:
It is my understanding that the main issue at this dispositional hearing is the apartment. I want it clear I am not ruling on who gets the apartment. I won't even consider it. At this point my understanding is that the mother moved out and is living somewhere else and she wants the apartment back.... If the petitioner wants the apartment she will have to take appropriate action in the appropriate court. This is not the court for this. You can have a hearing for 20 months and I will never rule on who gets this apartment. It's not before me.
We reverse.
Among the purposes of a family offenses proceeding under Article 8 of the Family Court Act is to protect victims of domestic violence by providing "a civil, non-criminal alternative to a criminal prosecution" (Besharov, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 812, at 181) when family members commit certain designated criminal offenses. 1
When the allegations in a petition set forth that a respondent has committed one or more of these offenses, the Family Court will hold a fact-finding hearing to determine whether the allegations are established by a fair preponderance of the evidence (Family Ct. Act § 832). In seeking to establish the allegations, the petitioner must set forth "[o]nly competent, material and relevant evidence" (Family Ct. Act § 834).
If the petitioner is able to establish the allegations in the petition and demonstrate that the respondent has committed a family offense, the court will generally hold a dispositional hearing (Family Ct.
Page 452
Act § 835). A broader standard of admissibility of evidence is available on the dispositional hearing than at the fact-finding hearing, and evidence may be admitted as long as it is "material and relevant", including hearsay and other evidence otherwise incompetent (Besharov, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 834, at 240).
Following the dispositional hearing, the Family Court may dismiss the petition if the allegations in the petition are not established, suspend judgment for up to six months, place respondents on probation for up to one year and require them to participate in an educational program, issue an order of protection, or order restitution (Family Ct. Act § 841). The order of protection may set forth "reasonable conditions of behavior to be observed ... by the petitioner or respondent", including, but not limited to, requiring them "to stay away from the home ... of the other spouse" (Family Ct. Act § 842). Such a condition may be imposed not only where the parties are already living apart at the time the order is issued but, where necessary, it may also be imposed where it will require a party to stay away from what has heretofore been his or her own home (see, Merola v. Merola, 146 A.D.2d 611, 536 N.Y.S.2d 842; Kilmer v. Kilmer, 109 A.D.2d 1004, 486 N.Y.S.2d 483; Leffingwell v. Leffingwell, 86 A.D.2d 929, 448 N.Y.S.2d 799).
Initially, we reject respondents' argument that petitioner's appeal is academic because the one-year order of protection has expired and has not been renewed. Petitioner's argument that the court improperly failed to exclude respondents from the marital home as a condition of the order of protection is obviously not academic. Petitioner, who has shown that she remains unable to return to her home based upon the court's failure to address the issue of whether respondents should be excluded is clearly continuing to suffer harm. Moreover, by removing herself from the family home for her own safety, petitioner obviated the need for a further order of protection, so her failure to seek one does not render academic her argument that the order was inadequate (cf., Matter of Alice C. v. Joseph C., 212 A.D.2d 698, 623 N.Y.S.2d 152 [issue of whether court improperly refused to issue order of probation as part of order of protection without holding dispositional hearing is academic, since order of protection has expired] ).
Moreover, we find that Family Court erred in failing to hold a dispositional hearing to consider the issues of whether the order of protection should have included a provision excluding respondents from the marital apartment and whether it should have extended for three years.
We find no basis in law for the Family Court's action in refusing to even consider whether respondents should be excluded from the apartment as a condition of the order of protection, which it had found to be clearly warranted by respondents' behavior. As noted above, the Family Court is unquestionably permitted to order a non-resident party to stay away from the home of the other spouse or to exclude a resident party from the common home (Ross v. Ross, 152 A.D.2d 580, 543 N.Y.S.2d 162; Quintana v. Quintana, 237 A.D.2d 130, 654 N.Y.S.2d 27; Merola v Merola, supra; Kilmer v Kilmer, supra; Leffingwell v Leffingwell, supra ). There is no logical rationale to limit the power of the court by prohibiting it from excluding a resident abusive spouse merely because the victim of the abuse has been forced by her abuser to flee their common home. Such a holding would reward the worst of abusers, i.e., those whose behavior was so violent or threatening that it forced their family members to leave home, with automatic possession of the home, and would obviously frustrate the intent of the statutory scheme, which seeks to protect, not punish, the victims of domestic violence.
Page 453
To Be Cont....
The criminal defendant, Phillip Johnson, is charged with Endangering the Welfare of a Child, Penal Law ["PL"] 260.10(1). The defendant has moved in an omnibus motion for dismissal for facial insufficiency. Because the factual allegations that the defendant grabbed his three-year-old son by the arm and attempted to pull him into the bathroom are insufficient to establish that the defendant knowingly acted in a manner likely to be injurious to the physical, mental or moral welfare of a child, the defendant's motion is granted.
In order to be facially sufficient, an information must substantially conform to the formal requirements of Criminal Procedure Law ["CPL"] 100.15. Additionally, the factual portion and any accompanying depositions must provide reasonable cause to believe the defendant committed the offense charged, as well as nonhearsay factual allegations of an evidentiary character which, if true, establish every element of the offense charged and defendant's commission thereof (CPL 100.15[3] & 100.40[1]; see People v Dumas, 68 NY2d 729 [1986]; see also People v Alejandro, 70 NY2d 133 [1987]). The complete failure to plead an element of a crime is a nonwaivable jurisdictional defect (see People v Casey, 95 NY2d 354, 356 [2000]; Alejandro, 70 NY2d at 137-138).
Reasonable cause to believe that the criminal defendant committed the offense charged exists when "evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince
Page 2
a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it" (CPL § 70.10[2]). The requirement of nonhearsay allegations has been described as a "much more demanding standard" than a showing of reasonable cause alone (Alejandro, 70 NY2d at 138, quoting1966 Report of Temp Commn on Revision of Penal Law and Crim Code, Staff Comments); however, it is nevertheless a much lower threshold than the burden of proof beyond a reasonable doubt (People v Henderson, 92 NY2d 677, 680 [1999]; People v Hyde, 302 AD2d 101 [1st Dept 2003]). Thus, "[t]he law does not require that the information contain the most precise words or phrases most clearly expressing the charge, only that the sex crime and the factual basis therefor be sufficiently alleged" (People v Sylla, 7 Misc 3d 8, 10 [2d Dept 2005]). Finally, where the factual allegations contained in an information "give an accused sufficient notice to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading" (People v Casey, 95 NY2d 354, 360 [2000]; see also People v Konieczny, 2 NY3d 569 [2004]; People v Jacoby, 304 NY 33, 38-40 [1952]; People v Knapp, 152 Misc 368, 370 [1934], affd 242 App Div 811; People v Allen, 92 NY2d 378, 385 [1998]; People v Miles, 64 NY2d 731, 732-733 [1984]; People v Shea, 68 Misc 2d 271, 272 [1971]; People v Scott, 8 Misc 3d 428, 429 [2005]). Ultimately, "the court must consider whether both the alleged facts and the reasonable inferences to be drawn from those facts, viewed in the light most favorable to the People, would, if true, establish every element of the crime charged" (People v Barona, 19 Misc 3d 1122[A], 1, 2008 NY Slip Op 50814[U] [Crim Ct, NY County 2008]).
To Be Cont...
Howard M. Simms, attorney for respondent-respondent, H.C., Sr.
Bruce A. Young, attorney for respondent-respondent, H.C., Jr.
Gretchen Mullins Kim, attorney, on behalf of My Sister's Place; National Coalition Against Domestic Violence; NOW Legal Defense and Education Fund; New York Legal Assistance Group; Network For Women's Services; Pace Battered Women's Justice Center; The Urban Justice Center; Westchester/Putnam Legal Services; Legal Services for New York City, Brooklyn Branch; SAKHI for south Asian Women; Queens Legal Services Corporation; Domestic Violence Report, and Pennsylvania Coalition Against Domestic Violence, as Amici Curiae, in support of petitioner.
BETTY WEINBERG ELLERIN, P.J., JOSEPH P. SULLIVAN, RICHARD W. WALLACH and PETER TOM, JJ.
At issue on this appeal is whether the Family Court, having found that a victim of domestic violence who has fled the marital home for her safety is entitled to an
Page 450
order of protection, should also have provided a remedy that could restore the victim to her home and exclude her abusers instead of leaving the home in the sole possession of the abusers.
On January 3, 1995, petitioner, a middle-aged deaf woman, filed petitions for orders of protection, alleging that she had fled her home in December 1994 because of escalating violence and abuse by her husband and their adult son and requesting that the orders provide that criminal respondents be excluded from their common residence. Specifically, she alleged, inter alia, that her husband physically and verbally abused and threatened her, changed the locks on the marital home and refused to give her a key, and forced her to take drugs against her will, and that their son was verbally and physically abusive.
Following an initial ex parte proceeding, the Family Court denied the request that respondents be excluded from the home and issued temporary orders of protection pursuant to Family Court Act § 828 requiring respondents not to "assault, menace, harass or recklessly endanger petitioner" and "not to exclude petitioner from the marital residence".
At the fact-finding hearing, petitioner testified that she fled to her daughter's home in December 1994 after two incidents in which her husband, who is confined to a wheelchair, pointed a loaded gun at her and threatened to kill her. On November 18, 1994, while her husband was high on cocaine, he pulled a loaded gun out from under the seat of his wheelchair, pointed it at her, and said, "I am going to kill you". She ran into the bathroom and locked the door. On another day, he reached into the drawer in the couple's bedroom, placed his hand on his gun, and cursed at her. She called for their son to come help her, but when he entered the room he blocked the bedroom door and trapped her in the room.
Petitioner also testified that, in 1975, her husband, while intoxicated, shot her in the heat of a dispute, grazing her chest. He was not arrested because he told the police that someone else had shot her, and he threatened those present, including petitioner's oldest son, who is his stepson, not to contradict his story.
In addition to these specific incidents, petitioner testified that her husband constantly abused her by punching her in the face and pulling her hair. She also testified that he hit her twice on the back with a stick.
As to the criminal petition against her younger adult son, petitioner testified that he punched and slapped her when she refused his demands to cook meals or do other errands for him, made at all hours of the day and night. On numerous occasions, father and son acted together to abuse her. In November 1994, they changed the locks on the home and refused to give her a key. It was only after she had left home, retained counsel, and obtained an ex parte order of protection that they eventually provided her with a key.
To Be Cont...
In this Article 8 Family Offense Proceeding petitioner spouse filed a supplemental petition dated March 15, 1994, alleging that respondent failed to obey the modified order of protection issued by this court dated November 15, 1993. This supplemental petition alleged that respondent on March 8, 1994, upon release from incarceration for prior violation of the order of protection, arrived at petitioner's [162 Misc.2d 23] residence with police at approximately 1:00 a.m. attempting to gain entry to petitioner's residence and subsequently on March 11, 1994, that "a car belonging to a friend was towed from petitioner's driveway, and petitioner thinking the car stolen filed a police report and later learned where the car was towed, and upon inquiring found respondent had filed a criminal complaint and stated to be the owner of the property and claimed that the car was illegally parked and have the car towed.... the towing company is demanding payment for towing and storage fees." 1
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[162 Misc.2d 24] A warrant was issued for respondent's arrest. Respondent was returned on the warrant on March 21, 1994, and issue joined. The hearing was held on April 5 and 6, 1994. At the conclusion of the hearing the court made two findings beyond a reasonable doubt, to wit (1) that on March 8, 1994, respondent willfully violated the final order of protection by attempting to gain entry to petitioner's residence and (2) that on March 11, 1994, respondent willfully violated the final order of protection by having a vehicle lawfully parked on petitioner's property towed from that property with false representations by respondent that he was the owner of the property, that the car was unlawfully parked, all to harass and annoy the petitioner.
At the dispositional phase of this supplemental proceeding brought pursuant to Family Court Act § 846, the court based on the prior history of family offense activity perpetrated upon petitioner by respondent; the fact that criminal respondent had been committed previously by a court in Nassau County to incarceration for one hundred and eighty days; that respondent apart from that commitment, had been civilly committed by this court for willful violation of the order of protection to incarceration for six months; that respondent upon release from this most recent commitment had almost simultaneously violated the order of protection again on March 8, 1994; that respondent's behavior indicated an intractable design to continue to annoy and harass petitioner; and considering the welfare not only of petitioner, but of the two children, the court determined to civilly commit the respondent for each of the two willful violation to a term of incarceration of six months for the finding of violation occurring on March 8, 1994 and of four months for the finding of violation occurring on March 11, 1994, to run consecutively.
Respondent on April 12, 1994 filed a motion returnable April 27, 1994 seeking re-argument of the dispositional order dated April 7, 1994. In his motion respondent relies on recent appellate authority, to wit Matter of Vitti, 202 A.D.2d 917, 609 N.Y.S.2d 686 (3rd Dept.1994) which holds that Family Court Act Article 8 does not authorize imposition of consecutive commitments. The Third Department stated that in its view this statute, on [162 Misc.2d 25] its face, prohibits such commitments. As there is no other reported appellate decision on this issue, this holding would normally be of persuasive authority. This holding is remarkable and has significant and broad impact on the public especially that element of the public at risk of domestic (family) violence. Because of this over-riding public concern, the holding must be scrutinized. In Vitti, the Family Court of Dutchess County (Marlow, J.) made two findings of violation of final order of protection issued to the wife and children against the husband. The fact-findings, undisturbed on the appeal, are that the respondent husband violated the order of protection issued November 7, 1991 in that he made a series of over 300 harassing phone calls commencing on or about December 18, 1991 until the date of the petition, January 22, 1992, and that on March 25, 1992 he appeared at petitioner's residence. At the dispositional hearing, respondent was civilly committed to two consecutive six month jail terms for the two findings of willful violation of the order of protection. The Appellate Court declared "Finally, we agree with respondent that the sentence imposed here was illegal. Family Court Act § 846-a provides, in relevant part, that '(i)f a respondent is brought before the court for failure to obey any lawful order issued under [Family Court Act article 8] and if, after hearing, the court is satisfied by competent proof that the respondent has willfully failed to obey any such order, the court may ... commit the respondent to jail for a term not to exceed six months.' Petitioner has failed to point to any provision in Family Court Act article 8 that would authorize imposition of consecutive sentences, and in our view Family Court Act § 846-a, on its face, prohibits such sentences." (Emphasis supplied).
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To Be cont....]]>


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Hey guys!
Here's my breakfast tray #2 =]. This time I made the piece a bit bigger because the plates I used were a bit bigger. I'm not sure what scale it is though. I hope you guys like this!! (I think my potatoes look kind of bad haha. I will improve next time! They kind of look like tofu right now...LOL). I made the sausages differently this time and I like how they turned out . I will most likely post a tutorial about it because I love the built in texture (you'll see what I mean when I post the tutorial).
P.S. - I will be posting the aquarium soon too =]. All the pieces are done for the aquarium, just waiting for the resin to dry (need one more layer tomorrow so it should be done the day after tomorrow ).
Materials used: polymer clay, glaze, TLS, resin, acrylic paint, resin colorant, I bought the plates, glass and silverware (you can find on ebay and etsy)
perfect for a danbo to eat!
I'm a vegetarian and I even like this
Did you use shrink ray? lol
It looks edible! Even though it isn't...
It looks edible! Even though it isn't...
I wish I had a shrink ray haha that'd be cool.
That's one of the reasons I had asked, it looked too real, and looked edible! Oh, and thanks for replying back! :-D
Can you make me like, a million of these baby croissants to go? :U
This is way too cute, I like how the eggs edges are kind of burnt! xD;
damn girl, that croissant
Omg yummy. This would be the perfect breakfast for me! (that is..if I shrank lol) I love everything in this meal. Nom nom nom.
LOL I will have to agree that your potatoes look like wonderfully flavored tofu, but even that is still very delicious to me. I am sure that with your talent, you'll be able to find a way!
Thank you! I do hope i figure out potatoes haha.
Wow! Really creative! Could you explain exactly what resin is? I'm not really sure.
it's a 2 part liquid. It has one part resin, one part hardener I believe. When you mix both parts together, it eventually dries to harden. It is clearer than clay and looks just like liquid, except it dries.
Absolutely fantastic! The eggs and the croissant are my favourite items.
Lovely Mel. I particularly like the sausages. Look forward to the tut.
Just wow!!!
Oh yes, this looks scrumptious! Even the wrinkly eggs are perfect! The potatoes do look a bit glazed to me. I think if they were a bit whiter, translucent with some 'burned' edging might help the next batch. Also, chive bits on the potatoes would def give it that visual help.
Thank you for your input as always! I do agree, I think I should have added a bit more translucent clay into the potatoes. Definitely going to try it again in the future .
Ahhhhhhh all of this food looks so fantastic! Amazing job!
Where did you get a giant hand?
So cute! All the detail is awesome.

subset: commoncrawl