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.