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Court Discusses Temporary Order for Protection


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.

A New York Criminal Lawyer said that 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.

On 24 June 1988, defendant was arrested and charged with Assault in the Third Degree and with Harassment, on the complaint of his wife; 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. A New York Criminal Lawyer said the alleged assault and harassment occurred after the wife had returned to sleep in the larger apartment and refused to let the husband in.

On 24 June 1988, at defendant’s arraignment, he was represented by counsel and was released on his own recognizance with the consent of the People. A Temporary Order of Protection, effective until 17 July 1988, has been issued 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.

On 26 June 1988, two days after defendant’s arrest, a New York Sex Crimes Lawyer said the wife informed the police that defendant had threatened her with violence over the telephone and that she had a Temporary Order of Protection (TOP). 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 13 July 1988, defendant and his counsel appeared before the court and orally requested that the TOP be modified to allow the defendant access to one of the two apartments. A said 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 1 August 1988, unless extended by the Court.

On 15 July 1988, by order to show cause returnable on 26 July 1988, defendant moved to vacate the TOP as based on insufficient evidence and issued in violation of due process of law. Additionally, and alternatively, a New York Drug Possession Lawyer said the defendant moved for a hearing to vacate the TOP as a condition of his recognizance. While this motion was pending, on 18 July 1988, defendant sought and was denied review of the TOP in the Supreme Court, New York County, on the ground that the law did not authorize such review.

On 20 July 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 the defendant for violation of that Order of Protection.

On 26 July 1988 the stipulation was approved by the presiding judge and the hearing was scheduled for 1 August 1988.

The issue here is whether there was sufficient evidence to justify the issuance of a TOP as of 24 June 1988, and whether there was a current basis for its continuation.

Although called for by the stipulation, no evidence was taken at the hearing to determine whether there was probable cause to arrest the defendant for violation of the TOP. Instead, with the defendant’s consent, the People filed a “Superseding Amendment” to the information charging the defendant with Criminal Contempt in the Second Degree. The new count alleged that on June 26, in violation of the June 24 Temporary Order of Protection, the defendant telephoned his wife and told her that he had a gun and was coming to see her ( a possible gun crime). The provision of the Temporary Order of Protection allegedly violated by the defendant was that which required him to abstain from offensive conduct against the wife.

On 4 August 1988, the court orally ruled that the evidence supported the issuance of the initial TOP on 24 June 1988, and issued a new TOP excluding defendant from only one of the two apartments owned by him jointly with his wife.

Defendant’s constitutional challenge would be treated as a motion to dismiss the added charge of Criminal Contempt in the Second Degree.

By an Order, without opinion, dated 28 April 1989, the Court withdrew its 4 August 1988 oral decision that there was on 24 June 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 24 June 1988 Temporary Order of Protection on constitutional grounds; and dismissed the charge of Criminal Contempt in the Second Degree. The Amended Order and Decision supplements the Order issued on 28 April 1989.

On the Issue of Scope Hearing Held to Review Issuance of TOP:

The TOP in question was issued as a condition of defendant’s release on his own recognizance. A fundamental principle of the law governing securing orders is that a judge may not review a determination of bail or recognizance made by a judge of coordinate jurisdiction nunc pro tunc, and may only modify such a determination prospectively on the basis of new facts adduced. To the extent the Stipulation between the People and defendant provided for nunc pro tunc review of the 24 June 1988 determination of the arraigning Judge, it was invalid. The court’s decision, pursuant to the stipulation, that there was a sufficient factual basis for issuance of the 24 June 1988 TOP, must therefore be withdrawn.

On the question of whether, subject to defendant’s constitutional challenge, there was a sufficient evidentiary basis for the continuance of the June 24 TOP, the court rules that there was substantial evidence presented at the hearing to support the continuation of a TOP excluding the defendant from the marital apartment.

Sufficient evidence were presented including previously filed cases which established that there was a substantial danger of intimidation or injury to the complainant and supported the issuance of a new TOP on 4 August 1988.

On the Issue of Standing and Mootness:

The defendant 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 and that he has been aggrieved by the unconstitutional feature of the statute.

Here, 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 restricts 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.

Defendant’s liberty is threatened by the criminal proceedings for violation of the June TOP, which proceedings are presently pending against him. The effect of the TOP and of the authorizing statute on defendant’s liberty and property interests could hardly be more direct and specific.

Although the June TOP is no longer in effect, the controversy surrounding its issuance is not moot. Defendant currently faces prosecution for the violation of the June TOP. 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.

On the Issue of Existing Procedures and Criteria for the Issuance of a TOP:

The law itself does not prescribe the procedure to be followed when an application for a TOP is made. However, the law provides that whenever a court is required to issue a securing order, whether for recognizance or bail, a defendant must be afforded an opportunity to be heard. By the express terms of the law, the determination whether to issue a temporary order of protection is a part of the process of setting bail or recognizance. The statutory right to be heard must be provided to a defendant with respect to the issuance of a TOP as well as to the literal fixing of bail or recognizance.

There is surprisingly little authority concerning the nature of a defendant’s opportunity to be heard; an adversary evidentiary hearing is not required on an initial application for bail or recognizance.

On the other hand, a legislative history of the law demonstrates that a major purpose for its enactment was to enable the criminal court to protect victims of domestic violence from intimidation by the use of further violence and threats of violence. Therefore, “danger of intimidation or injury” to complainant is the appropriate standard to be applied by a court considering an application for a TOP as a condition of bail or recognizance. There must be a “reasonable foundation” for the court’s determination, and the reasons for the court’s determination should be stated or, at minimum, must be ascertainable from the record.

On the issue of Defendant’s Constitutional Challenge; Right to a prior evidentiary hearing:

Whenever state action deprives a citizen of his or her liberty or property, due process requires that he or she be afforded the opportunity for a hearing. The hearing must be provided at a meaningful time and in a meaningful manner. Only in extraordinary situations may the hearing be postponed until after the deprivation has occurred. In the arrest and pre-trial detention phase of criminal proceedings, the Fourth Amendment likewise imposes hearing requirements as an aspect of fair procedure. However, the requirements of due process and fair procedure are flexible as to the timing and formality of the hearing called for by the particular situation.

Certain factors have consistently been considered in evaluating the adequacy of procedures both under Due Process Clause of the Fourteenth Amendment and under the Fourth Amendment.

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.

Applying the foregoing, a TOP excluding defendant from the home is not an adjudication of title, and is not to be mistaken for a legal order of eviction. 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 under the Fourth and Fourteenth Amendments. 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 TOP is a substantial one. Before defendant may be 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. When no timely hearing is available to defendant with respect to the TOP excluding him from his home, it would indeed be unconstitutional.

The State’s interest in the issuance of TOP 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 TOP 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 TOP as a condition of bail or recognizance at the time a defendant is arraigned is an emergency decision.

The risk of error in determining whether a TOP excluding a defendant from the home should be issued is clearly greater when the determination is based only on the documents and arguments of counsel available to the Court at arraignment rather than on the testimony of live witnesses subject to cross-examination. The adversary process would better assist the Court in making the crucial assessment of the complainant’s credibility, the extent of any injuries suffered and threats made, and the defendant’s history of violent behavior toward the complainant and others.

Despite the strength of defendant’s constitutional interest, and the evident if unquantifiable risk of error, the emergency nature of the decision, as well as the practical difficulties inherent in convening an immediate evidentiary hearing, mitigate against the imposition of such hearings as constitutionally required before a TOP may first be issued at arraignment.

The United States Supreme Court and the United States Court of Appeals for the Second Circuit have held that in the initial phase of criminal proceedings, the need for expeditious assumption of judicial control following a defendant’s arrest outweighs the need to minimize risk of error through adversary procedures.

The requirements of due process do entitle defendant to a prompt evidentiary hearing after the TOP excluding defendant from the home has been issued. The importance of defendant’s interest in his home, the severity of the deprivation imposed through exclusion from the home, and, typically, the need to resolve conflicting issues of fact and credibility as to the underlying family conflict require that a trial type hearing be provided. Presentation of witnesses and cross-examination are the most suitable means for assessment of veracity and credibility.

The fact that defendant will ultimately have a full trial of the underlying charges against him does not obviate the prompt hearing requirement.

The court concludes that the requirements of procedural due process and of fundamental fairness must be considered satisfied by the procedural safeguards available under New York law. Before a TOP may be issued at arraignment: a probable cause determination must be made by a judicial officer, based on a verified complaint containing facts of an evidentiary character providing reasonable cause to believe that a crime has been committed; defendant is entitled to a presentation of reasons for the issuance of such a TOP by the People and through counsel to be heard in opposition to its issuance; before issuing such a TOP as a condition of bail or recognizance the court must be satisfied that there is a danger of injury or intimidation to the complainant; and, the defendant has a right to a prompt evidentiary hearing following the issuance of the TOP.

The fact that the court, when issuing a TOP, is not statutorily mandated to state its findings of fact and conclusions of law on the record does not impair the constitutionality. Although a statement of such findings and conclusions is desirable, it is not constitutionally required in support of a bail determination, as long as the reasons for the determination are apparent from the record.

On the issue of Defendant’s Constitutional Challenge; Inadequacy of Standard:

According to defendant, the absence of a standard or of criteria for the issuance of a TOP makes the application of the law intrinsically arbitrary and violative of due process.

The absence of criteria or factors which the court must consider in making its determination was held not to impair the constitutionality of the statutes at issue. However, articulated statutory criteria enhance the responsible exercise of discretion. This court notes that subsequent to the entry of the TOP complained of here, the law was amended in part to list factors to be considered by the court in determining whether to issue a TOP excluding defendant from the home. These factors include “conduct subject to prior orders of protection, prior incidents of abuse, extent of past or present injury, threats, drug or alcohol abuse, and access to weapons, and whether the TOP is likely to achieve its purpose in the absence of a condition excluding defendant from the home. The specification of these factors should prove extremely helpful.

On the issue of Dismissal of Criminal Contempt Charges:

Violation of a provision of the TOP cannot support a charge of criminal contempt. As a rule, the order of a court, no matter how erroneous, must be obeyed unless the issuing court lacks jurisdiction or the order is void on its face. It is equally well settled that to support a charge of criminal contempt there must be a clearly expressed and definite order of the court and the contemnor must know of the order.

When the terms of an order are vague and indefinite as to what actions are required of or prohibited to a party, he or she may not be adjudged in criminal contempt for failing to take the required action or for taking the prohibited action.

Although the aforesaid precedents were established with respect to Judicial Contempt and not with respect to Penal Contempt, they apply with equal force to Penal Contempt. Both sections punish disobedience to a court’s lawful mandate. The rationale for requiring a clear and definite order applies equally to contempt under both statutes. Since punishment for contempt for violation of an order jeopardizes a contemnor’s liberty and property, as a matter of fundamental fairness such punishment should not be imposed unless the person affected had notice of what the order proscribes or requires.

The elements of the two forms of contempt are essentially the same, despite the procedural differences which exist between Judicial Contempt and Penal Contempt proceedings. While the Penal Law criminalizes intentional disobedience or resistance and the Judiciary Law proscribes willful disobedience, the terms intentional and willful are treated as interchangeable in the cases.

Accordingly, defendant cannot be prosecuted for Criminal Contempt in the Second Degree.

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