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Family Court denied the request…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.
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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 ยง 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.

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