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Respondent Violates Order for Protection

A New York Criminal Lawyer said that on 15 March 199, petitioner spouse filed a supplemental petition has been, a Family Offense Proceeding, alleging that respondent failed to obey the modified order of protection issued by the court dated 15 November 1993; that respondent on 8 March 1994, upon release from incarceration for prior violation of the order of protection, arrived at petitioner’s residence with police at approximately 1:00 a.m. attempting to gain entry to petitioner’s residence and subsequently on 11 March 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 complaint and stated to be the owner of the property and claimed that the car was illegally parked and had the car towed where the towing company is demanding payment for towing and storage fees.”

A warrant was issued for respondent’s arrest. Respondent was returned on the warrant on 21 March 1994. In April 1994, a hearing was held and at the conclusion thereof, the court made two findings beyond a reasonable doubt, to wit (1) that on 8 March 1994, respondent willfully violated the final order of protection by attempting to gain entry to petitioner’s residence and (2) that on 11 March 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. The court’s decision was based on the prior history of family offense activity perpetrated upon petitioner by respondent; the fact that 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 8 March 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 8 March 1994 and of four months for the finding of violation occurring on 11 March 1994, to run consecutively.

On 12 April 1994, respondent filed a motion returnable 27 April 1994 seeking re-argument of the dispositional order dated 7 April 1994.

In the respondent’s motion, he relies on recent appellate authority which holds that Family Court Act Article 8 does not authorize imposition of consecutive commitments.
The Third Department stated that in its view the aforesaid statute, on 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 violence. Because of this over-riding public concern, the holding must be scrutinized.

In the recent appellate authority relied upon by respondent, the Family Court of Dutchess County’s holding, in a practical sense, constitutes a judicial fiat that regardless of the number of separate willful violations committed by a 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 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 day or two of the prior order of commitment. Petitioner has elected to proceed before the Family Court. A Bronx Criminal Lawyer 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.

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 recent case of Vitti (the recent holding relied by respondent). 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.

Respondent argues that the Family Court Judge is powerless to impose consecutive civil commitments which will exceed a six month total.

Is the court empowered to impose consecutive commitments exceeding six months?
A 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, the herein court is not bound by such holding.
As Family Court Act 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 states in pertinent part that petitioner who has obtained a lawful order of protection of Family Court, may 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”. 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 the act or any other law”. Such provision “is meant to reflect the original intent to prohibit the Court from considering as a contempt a violation of an order of disposition.” Accordingly, the contempt envisioned under Family Court Act which is embraced in “a finding that the respondent willfully 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.

Family Court Acts were enacted to “establish a formal procedure (and specific remedies) for the willful violation of a lawful court order”.

The State Legislature in liberalizing the statutes to effect greater protection to the victims of domestic violence is deemed cognizant that Family Court is a non-jury institution wherein the court sits as both finders of fact and of law. At the time of this statutory enactment, Family Court Act 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: “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 the right to reconsider the original election of a civil remedy and to initiate a criminal prosecution”.

Evidently, 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 granted by the legislature to Family Court 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 nor impair, enforcement of orders 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 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 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 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.

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.
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 the United States Supreme Court views supplemental proceedings alleging violation of a civil order of protection as a species of criminal contempt.
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 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. To reiterate, the issue raised on this 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.

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. 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 are separate offenses for the Sixth amendment purposes. As such, they do not transgress or invoke jury trial relief. To hold otherwise, under the 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 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 does have the authority to issue consecutive civil commitments for willful distinct and separate violations of an order of protection, albeit the total term of such consecutive commitments exceeds six months.
In cases of domestic violence, incarceration is possible. If you are a victim of domestic violence, sex crimes or assault, contact Stephen Bilkis & Associates right away. You must protect your rights and ensure your safety by consulting with a lawyer of your legal options. Talk to a New York Domestic Violence Lawyer or a New York Criminal Lawyer from our firm. We offer free consultations.

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