Against this background, the Third Department in Vitti, [162 Misc.2d 30] reads into Article 8 a non-existent provision, to wit a proscription of consecutive periods of civil commitment exceeding a total period of six months regardless of the multiple findings of violation of the final order of protection then before the court for dispositional purposes. The Appellate Court declares this proscription is on the face of § 846-a. Family Court Act § 846-a states: “If a respondent is brought before the court for failure to obey any lawful order issued under this article and if, after hearing, the court is satisfied by competent proof that the respondent has wilfully failed to obey any such order, the court may modify an existing order to add reasonable conditions of behavior to the existing order of protection, make a new order of protection in accordance with section eight hundred forty-two, and commit the respondent to jail for a term not to exceed six months. Such commitment may be served upon certain specified days or parts of days as the court may direct, and the court may, at any time within the term of such sentence, revoke such suspension and commit the respondent for the remainder of the original sentence, or suspend the remainder of the sentence.” (Emphasis supplied). The civil commitment for a failure to obey the lawful order of protection may be up to six months. The utilization of the term “failure” in the singular in § 846-a and the term “a finding that the respondent willfully failed to obey the order” in the singular in § 846
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 . 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 ; See Hicks on behalf of Feiock v. Feiock, 485 U.S. 624, 108 S.Ct. 1423, 99 L.Ed.2d 721 ; International Union United Mine Workers of America v. Bagwell, 512 U.S. —-, 114 S.Ct. 2552, 129 L.Ed.2d 642 . 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 . 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 .
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. 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
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…