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Order of Protection should not have been issued in this case


Defendant and complainant are husband and wife. Immediately prior to his arrest, defendant and his wife were staying in separate cooperative apartments, each jointly owned by them, in the same apartment building in Manhattan. The larger of the two apartments was the couple’s marital home, while the smaller served as the wife’s office. As a consequence of severe marital conflict between them, the wife was temporarily sleeping in her office, but had access to the larger apartment during the day. The defendant husband continued to occupy and sleep in the larger apartment.

A New York Criminal Lawyer said that, defendant was arrested on June 24, 1988 and charged with Assault in the Third Degree, and with Harassment, on the complaint of his wife. According to the June 24 complaint of Police Officer corroborated by the complainant wife on the same day, defendant, with intent to cause physical injury and to harass and annoy his wife, had punched her in the face and knocked out one of her teeth. The alleged assault and harassment occurred after the wife had returned to sleep in the larger apartment and refused to let the husband in.

A New York Domestic Violence Lawyer said that, at his arraignment on June 24, 1988, defendant was represented by counsel, and with the consent of the People was released on his own recognizance. At the arraignment, the People requested, and the court issued, a Temporary Order of Protection, effective until July 17, 1988, unless further extended by the court. No argument was heard, or testimony presented, either in support of or in opposition to the issuance of the TOP. The Temporary Order of Protection, issued on the officially prescribed form used for this purpose in the Criminal Court for the City of New York, directed defendant as follows: (a) to stay away from the home, school, business or place of employment of the complainant; (c) to abstain from offensive conduct against the complainant; (d) to refrain from acts of omission or commission that tend to make the home not a proper place for the complainant. The effect of this Temporary Order of Protection was to exclude the defendant from both of the couple’s apartments, since one was arguably the complainant’s home and the other her office.

On June 26, 1988, two days after defendant’s arrest, complainant informed the police that defendant had threatened her with violence over the telephone and that she had a Temporary Order of Protection. The police sought to arrest the defendant for violation of the TOP, but apparently, following negotiations with defendant’s counsel, they agreed to desist while defendant litigated the legality of such an arrest and of the underlying order of protection.

On July 13, 1988, defendant and his counsel appeared in Part AP 3 of this court and orally requested that the TOP be modified to allow the defendant access to one of the two apartments. The application was denied with leave to renew in writing. A new TOP was issued, without a hearing, on the same terms as previously, and made effective until August 1, 1988, unless extended by the Court. On July 15, 1988, by order to show cause returnable on July 26, 1988, defendant moved to vacate the TOP as based on insufficient evidence and issued in violation of due process of law. Additionally, and alternatively, defendant moved for a hearing pursuant to CPL 510.20 to vacate the TOP as a condition of his recognizance. While this motion was pending, on July 18, 1988, defendant sought and was denied review of the TOP in the Supreme Court, New York County, on the ground that CPL 530.30 did not authorize such review.

On July 20, 1988, the defendant’s written motion was disposed of by stipulation. The People and the defendant agreed in writing that a hearing would be held to determine defendant’s claim “that an Order of Protection should not have been issued in this case and that the police do not have probable cause to arrest me [the defendant] for violation of that Order of Protection.” On July 26, 1988 the stipulation was approved by the presiding judge and the hearing was scheduled for August 1, 1988.

At the conclusion of the hearing, on August 4, 1988, this court orally ruled that the evidence supported the issuance of the initial TOP on June 24, 1988, and issued a new Temporary Order of Protection excluding defendant from only one of the two apartments owned by him jointly with his wife. Decision was reserved on all issues of law. The parties agreed that defendant’s constitutional challenge to CPL 530.12 would also be treated as a motion to dismiss the added charge of Criminal Contempt in the Second Degree, P.L. 215.50(3). By an Order, without opinion, dated April 28, 1989, this Court withdrew its August 4, 1988 oral decision that there was on June 24, 1988 a sufficient basis for the issuance of a TOP; adhered to its decision to issue a new Temporary Order of Protection; denied defendant’s motion to vacate the June 24, 1988 Temporary Order of Protection on constitutional grounds; and dismissed the charge of Criminal Contempt in the Second Degree, P.L. 215.50(3). This Amended Order and Decision supplements the Order issued on April 28, 1989.

The issue in this case is whether, subject to defendant’s constitutional challenge, there was a sufficient evidentiary basis for the continuance of the June 24 TOP.

On this issue, there was substantial evidence presented at the hearing to support the continuation of a Temporary Order of Protection excluding the defendant from the marital apartment. The complainant testified credibly that on June 24, 1988 the defendant punched her in the mouth, knocking out one of her front teeth, that the defendant had a history of violent assault conduct, including specifically, an incident in May 1987 during which defendant shoved her into a wall injuring her elbow, and an altercation in October 1987 when defendant knocked complainant to the floor, causing her to break an ankle, forced her to walk on the broken ankle and then threw books at her. The complainant wife had previously initiated and then abandon a family offense proceeding in the Family Court and for a time had a Temporary Order of Protection from that Court. Defendant presented no witnesses at the hearing, and did not persuasively impeach complainant’s credibility through cross-examination. Complainant also swore to the allegations of the “Superseding Amendment” to the information that two days after the initial TOP was issued by the Criminal Court, the defendant telephoned her and told her that he had a weapon and was coming to see her. All this evidence established that there was a substantial danger of intimidation or injury to the complainant and supported the issuance of a new TOP on August 4th 1988. This court adheres to its initial determination on this point.

Before defendant’s constitutional attack on CPL 530.12(1), CPL 530.12(1)(a), may be addressed, defendant must overcome certain prudential objections raised by the People to the Court’s consideration of the constitutional questions presented by him.

The People contend that defendant lacks standing to raise constitutional objections to the Temporary Order of Protection of June 24, 1988, and to the statute authorizing its issuance, CPL 530.12(1). They argue that he has not been injured by a lack of due process in that no protected interest of his has been infringed, and, because, in any event, five weeks later he had the benefit of the hearing to which he claims he was entitled. The People also assert that this controversy has become moot, because the Temporary Order of Protection of June 24, 1988, has since been continued or replaced by subsequent orders.

The Court agrees with the criminal defendant that he has standing to maintain his constitutional defenses, and that he has presented a live dispute appropriate for adjudication.

In determining whether defendant has standing to raise his constitutional challenge, it must be shown that his “personal or property rights will be directly and specifically affected.” In order to have standing to challenge a statute as unconstitutional, a defendant must demonstrate actual or threatened injury to a protected right.

Defendant’s liberty and property interests were and are restricted by each of the various temporary orders of protection issued against him. He presently faces criminal prosecution, now based in part on his violation of the order which he claims to be unconstitutional. Each of the temporary orders of protection restrict defendant’s liberty to go where he pleases–he may not go to the home, business or place of employment of his wife, as well as his associational liberty in relation to his wife. The orders also exclude him from real property in which defendant otherwise shares ownership and a right to possession.

Although the temporary order of June 24, 1988 is no longer in effect, the controversy surrounding its issuance is not moot. Defendant currently faces prosecution for the violation of the order of June 24. In addition, the temporary nature of short term orders may not be used to insulate them from legal challenge. A case will not be treated as moot where the problem presented is capable of repetition, typically evades review, and is novel and substantial. The temporary order of protection issued in this case fits this pattern. Each year thousands of relatively short-lived temporary orders of protection, restricting the liberty and property of the accused, are and will be issued by the Criminal Courts of the City of New York. Since as a matter of practice, a new TOP is issued on each adjourned date in a criminal proceeding, there is no opportunity to litigate a challenge to any one such order while it is still in effect. Moreover, habeas corpus is not available to review these TOPs where the defendant is not incarcerated. Last but not least, the question of the process that is due before or after such an order may be issued is a substantial one.

The standard for the issuance of a Temporary Order of Protection, while not provided by statute, may be derived from the common law as it is embodied in case law. In the absence of a statutory standard, CPL 530.12(1) must be read as incorporating the authority of a court entering a securing order, CPL 500.10(5), to prescribe conditions of bail or recognizance for the protection of threatened and intimidated witnesses. This authority derives from the inherent power of a court to preserve the integrity of the judicial process. The standard to be applied in determining whether to impose conditions of bail or recognizance for the protection of witnesses is whether there is a “danger of intimidation or injury.”

Applying those factors to the instant case, we turn first to the private interest affected. A Temporary Order of Protection excluding defendant from the home is not an adjudication of title, and is not to be mistaken for a legal order of eviction pursuant to RPAPL, Article 7. Nevertheless, the interest affected here is the defendant’s use and enjoyment of his property interest in the home he owns jointly with his wife. Beyond its value as property, a person’s special interest in his/her home as an enclave of personal security and privacy has repeatedly been recognized. Being suddenly deprived of one’s home, even temporarily, is a traumatic experience.

Clearly, the property interest of the defendant affected by exclusion from the home pursuant to a Temporary Order of Protection is a substantial one. Before defendant may be [145 Misc.2d 127] deprived of such an interest permanently, or even temporarily, he is entitled to a hearing, unless extraordinary circumstances and an overriding state interest necessitate prompt action either without a hearing or without the appropriate evidentiary hearing until after the event. Were no timely hearing available to defendant with respect to the TOP excluding him from his home, CPL 530.12(1)(a) would indeed be unconstitutional.

The State’s interest in the issuance of Temporary Orders of Protection pursuant to CPL 530.12(1), CPL 530.12(1)(a), is also a significant one. Domestic Violence has come to be recognized as a social scourge of the first order. Not only does the State have a strong interest in combatting domestic violence through criminal prosecutions, but that interest is severely undermined if victims of domestic violence are too frightened by further threats and acts of violence to participate in the criminal prosecution of their cases. Further, the State’s interest in combatting domestic violence through criminal prosecutions is closely linked to the interest of courts, as state instrumentalities, in protecting the integrity of judicial proceedings. The great potential for violence and intimidation which is present when both the victim and the perpetrator of domestic violence continue to live under the same roof is self-evident. Where danger of injury or intimidation to a complainant can be shown to exist, the device of a Temporary Order of Protection excluding the accused from the home, and otherwise restraining victim harassment and intimidation, is indispensable to the maintenance of a criminal prosecution. Moreover, the state has an interest in the issuance of the TOP at the earliest possible time, since the danger of intimidation and injury to the complainant, if it exists, is an immediate one. In a very real sense, the issuance of such a Temporary Order of Protection as a condition of bail or recognizance at the time a defendant is arraigned is an emergency decision.

Accordingly, defendant Milton Forman cannot be prosecuted for Criminal Contempt in the Second Degree, P.L. 215.50(3) for alleged violation of paragraph (b) of the Temporary Order of Protection of June 24, 1988, and that count must be dismissed. The dismissal is without prejudice to the filing of charges of Aggravated Harassment, P.L. 240.30.

If you are a victim of domestic violence and assault, seek the legal representation of a New York Assault Attorney and New York Order of Protection Attorney at Stephen Bilkis and Associates.

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