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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.

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amount for the house, by about $12,000 because of a downturn in the real estate market caused by a conservative economy and the unwillingness of buyers to make deals. Plaintiff’s argument for a later valuation date is premised on the fact that criminal defendant would not agree to equitable distribution absent the present order to show cause. She argues she should not have to suffer a monetary loss if her former husband dragged his feet.

First, plaintiff has not sustained its burden on the point of showing her former husband’s contumacious behavior by credible evidence during the hearing. He had represented himself pro se during the divorce, but obtained a lawyer immediately upon being served with the present order to show cause. If he balked at equitable distribution, it was solely as to disagreements with the plaintiff’s aforementioned valuations. Second, any charge of contumacious behavior is belied by the fact that, in 2006, when the marriage was already falling apart, he obtained, at his own expense, a bank loan to pay off the remaining mortgage on the marital house in excess of $50,000. The defendant-husband alone is obligated to pay off the bank loan even though he no longer lives in the marital home. Second, to accept plaintiff’s valuation dates would do violence to well-settled law that require the courts to use the earliest dates possible.

As well-summarized by defense counsel’s memorandum of law, positing the arithmetic of deductions and offsets, the defendant-husband shall pay to the plaintiff-wife the sum of $26, 587. Defendant-husband shall pay this sum to plaintiff-wife immediately. Expecting and anticipating the defendant-husband’s cooperation, the order to show cause seeking a contempt finding is denied, except to the extent of making the aforementioned valuations. Cooperation of paying the aforementioned amount immediately to the plaintiff-wife will obviate the need for further review by the undersigned.

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courts to consider domestic violence when rendering child custody and visitation determinations. He noted that “[t]he victims of domestic violence are not limited to those who are actually battered by spouses, for the evidence is overwhelming that those who batter their spouses inflict tremendous harm on their children. * * * [D]omestic violence causes great psychological and developmental damage to children even when they are not themselves physically abused” (Governor’s Approval Mem to L 1996, ch 85, 1996 McKinney’s Session Laws of NY, at 1858, 1859). Some trial courts in child endangerment prosecutions have also explicitly recognized the overwhelming evidence of harm to children exposed to domestic violence (see, e.g., People v Malone, 180 Misc 2d 744).

Viewing all the evidence and the inferences which may be drawn in the light most favorable to the People, as we are obliged to do, we conclude that a rational trier of fact could have reasonably determined that defendant’s assaultive conduct in this case created a likelihood of harm to the children of which he was aware. Here, the children saw defendant approach their mother and strike her down in the street, whereupon they immediately started crying. In their immediate presence, the criminal defendant then threatened to kill their mother. For over 10 hours they hid in their bedroom, listening to defendant’s yelling and cursing, their mother’s screams and the sounds of breaking glass.

To the extent that some courts have determined that section 260.10 (1) requires that a defendant’s conduct must be directly focused upon the child, or that evidence of a child witnessing a severe act of violence is insufficient as a matter of law to support a conviction under this statute, those decisions are not to be followed (see, People v Carr, 208 AD2d 855, appeal after new trial 229 AD2d 446, lv denied 88 NY2d 1067; People v Suarez, 133 Misc 2d 762). We reiterate, however, that each case is fact specific (see, People v West, 271 AD2d 806; People v Brooks, 270 AD2d 206, lv denied 95 NY2d 794; People v Parr, 155 AD2d 945, lv denied 75 NY2d 870 [all holding that a defendant who performs a significant act of domestic violence against a mother in the presence of a child is guilty of endangering the welfare of that child]).

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CPLR §3001 provides that the “Supreme Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed.” A declaratory judgment is one that seeks to have the Criminal Court establish and promulgate the rights of the parties on a particular subject matter.

However, if a plaintiff is using a declaratory action to test the validity of the propriety of the proceedings under a statute, the plaintiff must ordinarily pursue administrative challenge before going to court. The doctrine of “exhaustion of remedies,” as a precondition to judicial action, should be made under Article 78 proceeding rather than a declaratory action. (See Seigel, New York Practice §437, p. 708, 3d Ed. 1999). Therefore, although called a motion for declaratory relief, this Court has no jurisdiction because Gales has not exhausted her remedies through the administrative process, Pirro v. Angiollio, 88 NY2d 351 (1996); Town of Huntington v. DHCR, 82 NY2d 783 (1993); Gelston v. DHCR, 177 Mise.2d 431, 434 (Sup. Ct. Queens Co., 1998) (Milano, J.): Seabrook v. Johnson, 173 Mise.2d 15, 18 (Sup. Ct. Bronx Co. 1997) (Giamboi, J.).

By claiming that NYCHA’s termination proceedings against domestic violence tenant-victims are conducted in an “arbitrary and capricious manner,” Gales ostensibly invokes CPLR §7803(3), which requires that there be a “determination” which has been applied in this improper manner. However, there has been no determination, and therefore this Court lacks jurisdiction

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