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Wife Contends Husband Violated Order for Protection


A former wife commenced a Family Court proceeding alleging that her husband argued with her, cursed at her and destroyed her property. The wife also alleged that on prior occasions, her husband had assaulted and threatened her. She requested and received an order of protection from the Family Court that directed her husband shall not assault, menace, harass, recklessly endanger or engage in disorderly conduct toward her. A New York Criminal Lawyer said the wife brought a second petition before the Family Court alleging that her husband violated the temporary order of protection by forcing his way into her home and by menacing her with a knife and by calling her on the phone and by continually threatening to kill her. After the fact-finding hearing, the Family Court found that the wife had met her burden of requisite quantum proof.

After a dispositional hearing, the Family Court placed the husband on one year probation and required him to attend a batterer’s program. The Family Court issued a final three year order of protection after finding the presence of aggravating circumstances under Family Court Act.
While the Family Court case was pending, the husband had been arrested and charged with various crimes. The husband was indicted for burglary, assault, attempted assault, criminal possession of a weapon and criminal contempt, criminal mischief, aggravated harassment all alleged to have occurred on April 1995. The accused party’s motions contend that the Supreme Court prosecutions are barred by constitutional and state statutory double jeopardy protection. The husband contends that the Family Court proceeding against him was a prosecution for the same conduct or offense as charged in the respective indictment against him. Moreover, he contends that the disposition or sentence imposed by the Family Court constituted criminal punishment.

The Family Court Act and the Criminal Procedure Law both provide the criminal court and family court with concurrent jurisdiction for certain enumerated criminal offenses when committed by one family member against another. A Queens Criminal Lawyer said that athough the Family Court proceeding for certain criminal conduct among family members is deemed to be a civil proceeding, the Family Court may, with the consent of the complainant, transfer a proceeding to the criminal court in the interest of justice. Moreover, the Family Court upon its own motion or upon motion of the petitioner transfer a proceeding to the criminal court alleging that the accused has failed to obey a lawful order of the court.

The constitutional protection against former jeopardy protects individuals against successive prosecutions for the same offense after an acquittal or conviction. Multiple punishments for the same offense are also proscribed. Double jeopardy protection may be extended to proceedings that are not nominally criminal. It is settled that a sanction in a civil or non-criminal proceeding may constitute punishment for double jeopardy purposes. The Court of Appeals has held that an Article 10 proceeding under the Family Court Act to determine whether a child has been neglected or abused does not bar subsequent criminal prosecution for the same conduct under double jeopardy principles.

A child protective proceeding can take place in the Family Court while a criminal prosecution goes forward arising out of the same conduct because of the different purposes of these courts, different standards of proof and dispositional alternatives. There is no double jeopardy bar to a criminal prosecution after an Article 10 Family Court proceeding. Significantly, a neglect or abuse finding can result in the possibility of the child’s placement outside the familial home, not a penal sanction against the accused. The desired end of the article 10 proceeding is to ensure the expeditious protection of the child’s welfare, not to secure a conviction against the accused.
When couples fight, they sometimes end up hurting each other physically. If you are a victim of physical harm committed by your partner, sex crimes, or other domestic violence matters call the office of Stephen Bilkis and Associates and consult a NY Domestic Violence Attorney together with a New York Criminal Lawyer.

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