The defendant’s written a Criminal Procedure Law (CPL) application to set aside one count of the jury trial verdict which convicted him of criminal mischief was granted by the County Court, over the written and oral opposition, on the record in open court. The written decision expounds in greater detail upon the County Court’s determination of the defendant’s motion, which appears to raise an issue of first impression.
The novel issue in this case is whether the evidence adduced at trial was legally sufficient to establish the necessary elements of criminal mischief. The statute requires that the defendant intentionally disable or remove the telephonic equipment while the complaining witness was attempting to call 911, in an effort to seek emergency assistance from the police during an alleged domestic violence assault upon her. The trial evidence did not satisfy this statute.
The Prosecutor’s Information in this case accused the defendant of assaulting his former girlfriend in the presence of their three children. The trial testimony established that during the assault the victim attempted to call 911 for police assistance (using a land-line telephone) and she made a very brief initial contact, but was then immediately thwarted by the defendant, who bound the victim’s wrists with the telephone cord and then slammed the telephone on the victim’s hands/fingers as she tried again to dial 911. At some point, however, during the incident the abused victim was able to complete a 911 call using the same telephone.
The jury acquitted the defendant of assault but convicted him of attempted assault, three counts of endangering the welfare of a child and criminal mischief. It is that count which is the subject of the defendant’s instant motion. No gun was found.
The Court is not unsympathetic to the arguments regarding the spirit and underlying intention of the statute. Although numerous situations can be envisioned in which the statute can be violated, the intentional act of binding the victim’s hands disabled the victim herself but did not disable the telephone itself, which remained in working order so that the victim was eventually able to summon the police for help with the same equipment. Furthermore, slamming the victim’s hands with the telephone did not disable the telephone either. What the defendant did in this case has temporarily impeded the victim’s successful use of the functioning telephone. However, until and unless subdivision four is amended by the Legislature to cover general hindering conduct, the defendant’s repugnant conduct does not constitute criminal mischief. Accordingly, the defendant’s CPL application to set aside the criminal mischief guilty verdict is granted and that count is dismissed.
In another proceeding, the parties who were never married, appeared on the mother’s petition for custody and executed a form worksheet which made provisions for joint custody and visitation. An order awarding joint custody of the parties’ infant child was signed by the Family Court providing for physical custody to the mother and liberal visitation for the father. The Family Court’s order was premised on the contents of that worksheet. There is no indication that the Family Court gave any consideration to the allegation in the petition for custody that the father had a history of verbal abuse toward the mother before making the award of joint custody.
The mother filed a petition to modify the order of custody and visitation to award her sole custody. Multiple efforts at service of that petition on the father, by a deputy sheriff, were unsuccessful. In the order appealed from, the Family Court dismissed the petition on the ground that the petition failed to allege a substantial change of circumstances. When the modification petition was filed, the Family Court conducted a check of the domestic violence registry, which revealed an outstanding temporary order of protection, issued by the New York City Criminal Court on the same date as the mother had originally petitioned for custody. However, the Family Court again did not consider the issue of possible domestic violence on the merits of the petition.
Contrary to the Family Court’s determination, under the circumstances of this case, the allegations in the modification petition that the father continued to have no involvement in the child’s life, as evidenced by the assertion that he failed to exercise any aspect of the liberal visitation he had been awarded, and the existence of a temporary order of protection based upon an allegation of domestic violence, were sufficient to warrant a hearing to determine whether a modification of the joint custody award was in the best interests of the child.
An award of joint custody is inappropriate if the parents have evidenced an inability or an unwillingness to cooperate regarding matters concerning their child. It is also appropriate to consider the impact of domestic violence, if found to exist, on the best interests of the child.
In every situation, the welfare of the children should always be a priority. A Kings County Order of Protection Lawyer together with a Kings County Family Attorney from Stephen Bilkis and Associates can help you preserve your children’s wellbeing. Furthermore, a Kings County Domestic Violence Lawyer is always ready to provide you with the legal services that you will need.