Articles Posted in Domestic Violence

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The legislature further finds and declares that domestic violence is criminal conduct occurring between members of the same family or household which warrants stronger intervention than is presently authorized under New York’s laws. The integrity of New York’s families from its youngest to its oldest members is undermined by a permissive or casual attitude towards violence between household members. The legislature further finds and declares that in circumstances where domestic violence continues in violation of lawful court orders, action under the criminal law must remain in place as a necessary and available option.

Notwithstanding the evolution of the law of domestic violence in New York, death and serious injury by and between family members continues unabated. The victims of family offenses must be entitled to the fullest protections of our civil and criminal laws.

Therefore, the legislature finds and determines that it is necessary to strengthen materially New York’s statutes by providing for immediate deterrent action by law enforcement officials and members of the judiciary, by increasing penalties for acts of violence within the household, and by integrating the purposes of the family and criminal laws to assure clear and certain standards of protection for New York’s families consistent with the interests of fairness and substantial justice.” (Emphasis supplied)

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1 The background of this supplemental proceeding is as follows: on January 15, 1993, on consent, petitioner wife obtained a final order of protection for one year directing that respondent shall not assault, menace, harass or recklessly endanger petitioner and the children and shall stay away from petitioner’s home. A supplemental petition was filed February 8, 1993, alleging violation in that, inter alia, respondent entered petitioner’s home on February 6, 1993. On February 9, 1993, the parties appeared and counsel were appointed to petitioner and respondent. A short evaluation of respondent was conducted by the Mental Health Services. It was reported that respondent possibly suffered from a post-traumatic stress disorder and was experiencing severe depression and anxiety and had a history of two prior psychiatric hospitalizations. The court remanded respondent to Elmhurst General Hospital for a full evaluation with a direction that respondent be released to court only. On February 10, 1993, respondent was produced together with a letter from Elmhurst General Hospital subscribed by Dr. Laurence Schiff, M.D. psychiatry, dated February 10, 1993 certifying that respondent was evaluated and found not to suffer from “any major mental illness, and does not present any acute evidence of homicidality or suicidality at this time.” Respondent was released to his own recognizance.

Subsequently the court was advised that petitioner had proceeded in Criminal Court, Nassau County, and that respondent was sentenced to one hundred and eighty days’ incarceration. Accordingly the supplemental petition dated February 8, 1993 was dismissed. On November 8, 1993, petitioner filed a second supplemental petition alleging that respondent on October 25, 1993, shortly after his release from incarceration, threatened to kill petitioner, that “on November 1, 1993, respondent climbed into petitioner’s window from the fire escape, but when petitioner’s 15-year-old son saw respondent entering the residence did chase respondent out of the residence with a cooking fork” and that “on November 3, 1993 at approximately 11:30 a.m. respondent followed petitioner when she dropped the child off at the child’s day care, and attempted to chase petitioner and when she called police respondent fled.” It is noted that the parties’ two children David then age 15 and Melissa then age 2 were covered by the order of protection. On November 15, 1993 after a hearing this court found beyond a reasonable doubt that respondent had violated the final order of protection as alleged. At that hearing the parties’ oldest child testified against the father. Based on the number of violations, their increasing severity, and mindful that respondent had already served a period of incarceration, in disposition of this supplemental petition, the court civilly committed the respondent for six months and in addition modified the final order of protection to continue for one year, effective November 15, 1993, with the further directions that respondent not interfere with petitioner’s custody of the children, remain away from petitioner and the children at all times, and not file or be the source of false allegations of neglect or abuse against the petitioner. Subsequently petitioner filed the third supplemental petition dated March 15, 1994.

2 Recently the legislature approved and the governor signed a bill on June 30, 1994 (L.1994, ch. 222) (S. 8642, A. 11992) entitled “the family protection and domestic violence intervention act of 1994”. The majority of the provisions of this act take effect January 1, 1995. Section 1 entitled “Legislative findings” states: “The legislature hereby finds and declares that there are few more prevalent or more serious problems confronting the families and households of New York than domestic violence. It is a crime which destroys the household as a place of safety, sanctuary, freedom and nurturing for all household members. We also know that this violence results in tremendous costs to our social services, legal, medical and criminal justice systems, as they are all confronted with its tragic aftermath.

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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.

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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

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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.

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A criminal defendant may commit the offense of Endangering the Welfare of a Child through a single act or through multiple acts over a period of time (see People v Keindl, 68 NY2d 410, 421 [1986]). Indeed, a defendant may be guilty of the crime by performing “a series of acts, none of which may be enough by itself to constitute the offense but each of which when combined make out the crime” (id.; see also Simmons, 92 NY2d at 831; Cowley v People, 83 NY 464, 472 [1881]). Thus, simultaneously coexisting events and circumstances, when taken as a whole, may constitute the crime even if each circumstance, when taken in isolation, might not (see Hitchcock, 98 NY2d at 592; see also People v Hogle, 18 Misc 3d 715, 718-719 [Crim Ct, NY County 2007]).

In reviewing the charge for legal sufficiency, “each case is fact specific” (Johnson, 95 NY2d at 373) and the allegations must be analyzed in the context of “the whole incident” (Hogle, 18 Misc 3d at 871, citing People v Tichenor, 89 NY2d 769, 776 [1997]). The court must look to the “confluence of events and circumstances” (Hitchcock, 98 NY2d at 591), including both the defendant’s acts and his omissions (see Cowley, 83 NY at 472). Possessing loaded and unloaded firearms and ammunition which were fully accessible to children (Hitchcock, 98 NY2d at 591); engaging in domestic violence in front of children against their mother (Johnson, 95 NY2d at 373); repeatedly directing vulgar remarks at a toddler (Simmons, 92 NY2d at 831); and providing beer to teenaged boys (Bergerson, 17 NY2d at 403) are examples of conduct which courts have held likely to be injurious to the physical, mental or moral welfare of children.

Where the criminal charge is predicated on the theory that a parent has engaged in excessive corporal punishment 1, courts have sustained convictions where the child has

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For these reasons, it was clearly error for the Family Court to base its decision, as it intimated it was doing, on the fact that petitioner could theoretically seek exclusive occupancy of the marital home in a divorce action commenced in Supreme Court. The issue before the Family Court was not, as claimed by respondents, a permanent award of exclusive possession of the marital property incident to the divorce (cf., Handa v. Handa, 103 A.D.2d 794, 477 N.Y.S.2d 670, lv. denied 64 N.Y.2d 1040; Roy v. Roy, 109 A.D.2d 150, 491 N.Y.S.2d 202), but, instead, the propriety of an exclusion order to prevent further family disturbance (see, Kilmer v. Kilmer, supra ). Regardless of the fact that the petitioner had already moved out, the Family Court not only has jurisdiction to determine this issue, but it is its very mandate to provide for this type of relief in matters involving family violence. Clearly, recourse to a divorce proceeding was of little or no use to petitioner. Not only would she not be entitled to criminal counsel in a divorce proceeding, but the commencement of a new action would cause further delay, during which time petitioner would remain excluded from her home by the threat of violence.

Further, while we must remain sensitive to the fact that the Family Court must deal with the practical realities of the impact of its decisions on the safety and well-being of the litigants before it, we note that the court should not base its decision solely on the fact that one party has found another place to stay and the other has not. 2 A victim of the outrageous and life-threatening sort of abuse set forth in this matter cannot be held hostage to the potential homelessness of her abuser, who created the intolerable situation in the first instance.

Moreover, in addition to its failure to consider excluding respondents from the home, we find that the Family Court erred in not considering whether the order of protection should extend for three years. Section 842 of the Family Court Act sets out the conditions which may be granted under an order of protection, and it provides that a final order of protection may extend for one year

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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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