In this criminal case, one of the allegations in the neglect proceeding involves defendant’s purported violation of an interim order of protection issued by a Family Court judge. In its earlier decision dated June 15, 2012, this Court ruled, inter alia, that the claim of double jeopardy had not ripened because the Family Court hearing was, and in fact still is, ongoing, and no punitive sanction has been imposed. A New York Family Lawyer said that, the Court denies the motion to renew, but grants the motion for re-argument. Upon re-argument, based on the specific facts of this case and analysis of federal constitutional principles, the Court reverses its original ruling to the extent of finding this prosecution is barred from proceeding as a matter of federal constitutional law.
A Bronx Family Lawyer said that, in the criminal matter, the trial court denied defendant’s motion to dismiss the indictment on double jeopardy grounds. Defendant was subsequently convicted in the criminal action on each of the five counts of criminal contempt and aggravated harassment, following a jury trial. A New York Custody Lawyer said the Court of Appeals found that “because the same acts violated both orders, it would be impossible for defendant to be guilty of first degree criminal contempt for violating the City Court order of protection without concomitantly being guilty of violating the Family Court order of protection.” Thus, the Court held that the criminal contempt prosecution was barred because of the previous conviction “under Family Court Act article 8.”
A Bronx Order of Protection Lawyer said that, on October 7, 2010, an interim order of protection was issued under Section 1029 of the Family Court Act in connection with a civil child neglect proceeding brought under Article 10 of that act. Five additional interim orders of protection were issued between that date and August 17, 2011. A subsequent neglect petition, a civil case also brought under Article 10, alleges, inter alia, defendant violated those interim orders of protection based on conduct which is said to have occurred on January 4, 2011. The criminal case contains a single count alleging a violation of an order of protection issued in Supreme Court, Bronx County on May 26, 2011. Thus, one of the allegations in the civil pleading involves conduct which allegedly took place five months prior to the issuance of the order of protection defendant is accused of violating in this matter.
A Bronx Family Lawyer said that, the Family Court petition also alleges defendant violated the family Court order of protection on August 18, 2011. The petition specifically states that on August 18, 2011, Administration for Children’s Services (ACS) caseworker Janice DeFelice made an “unannounced home visit” to defendant’s children’s apartment, personally observed defendant “inside the subject residence,” that defendant told the caseworker he “knew he was not allowed to be inside the subject residence,” and defendant’s children were present. The accusatory instrument in this criminal matter charging defendant with a single count of criminal contempt in the second degree is a sworn pleading signed by the case worker. In that pleading, the case worker alleges defendant violated the Supreme Court order of protection on August 18, 2011 “when she personally observed defendant inside defendant’s children’ apartment.”
This issue in this case is whether this criminal prosecution charging defendant with a single count of criminal contempt based on an allegation he violated a Supreme Court order of protection is barred from proceeding under both state law and federal constitutional double jeopardy principles based on the commencement of a civil hearing in a child neglect proceeding brought pursuant to Article 10 of the Family Court Act.
A Bronx Family Lawyer said the court said that the case extensively relied on by defendant in the initial motion and which he claims was “overlooked or misapprehended” by this Court in its prior decision is the 2006 case, which defendant still claims is the “controlling” case. The Court understands the in the said case holding, and in fact cited to that case and distinguished it from this case in its earlier decision. The said case is significantly different from the scenario presented here, and is not, in this Court’s opinion, controlling authority as a matter of state or federal law. In that case, following a Family Court hearing brought under Article 8 of the Family Court Act, a finding was made that the respondent, violated an order of protection previously issued by that court in a pending Article 8 matter. The finding was that the violation occurred on December 25, 1996, when respondent made five “prank phone calls” to an individual he had been ordered not to have any contact with. He was sentenced to six-month incarceration following the adjudication in Family Court. Respondent had also been indicted based on an allegation he violated an order of protection issued by the Rochester City Court.
To the extent the charge in the criminal case is based on one, but not all, of the events alleged in the civil petition, and then this scenario is somewhat similar to it. But, a Bronx Custody Lawyer said the defendant is alleged to have violated the Family Court order of protection at a time when the Supreme Court had not yet issued its own order of protection, as well as on an occasion that is not charged in the information in this criminal action. And, in this Court’s initial opinion, that scenario made it a factually different case from it, because no finding had yet been issued in Family Court that defendant violated that court’s order of protection on any occasion. In addition, given the panoply of remedial civil remedies which can be imposed under Article 10 of the Family Court Act, this Court determined, based on Wood, that jeopardy violation could be found until the outcome of the Article 10 proceeding.
There is still the question of whether the mere commencement of the civil Article 10 proceeding placed defendant in “jeopardy” in terms of barring this criminal action. In Wood, the respondent/defendant had been found to have violated Article 8 of the Family Court Act and was sentenced to jail prior to the start of the criminal trial. Since it is possible for defendant to be found to have violated the Family Court order of protection on a date other than August 18, 2011, and be sentenced based on that finding alone, this Court initially thought it prudent to wait until the outcome of the Family Court case before even considering a double jeopardy argument.
Defense counsel also muddied the waters in a court appearance on April 23, 2012. On that date, the People answered ready for trial, and were seeking to be sent out to a trial judge. They recommended a 30-day incarceratory sentence if defendant were to plead to the criminal contempt charge. Defense counsel asked the Court to adjourn the case for a date shortly after May 7, 2012. He explained he believed defendant was about to accept a disposition in a Family Court proceeding and be sentenced to six-month incarceration. Counsel indicated that would take place on May 7, 2012. He also indicated he believed, after that disposition, his client would plead to the contempt charge and accept a 30-day sentence in the criminal matter if the sentences would run concurrently. Counsel persuaded the Court that, under these circumstances, it would be a waste of precious judicial resources to send the criminal case out to trial on that date. The Court granted the defense request and adjourned the case until May 11, 2012.
On that date, counsel told the Court there had been no disposition in the Family Court matter. He also indicated he had just filed a motion to dismiss the instant action. In reality, two motions were filed. In one, defendant argued this case should be dismissed pursuant to CPL § 30.30. In a separate, subsequent application, he moved to dismiss on “double jeopardy” grounds. Counsel suggested inter alia, that jeopardy attached in part because the ACS worker, began to testify in the Family Court proceeding on May 7, 2012. This Court learned for the first time about the allegations in the amended Article 10 Family Court petition, and learned, the Family Court judge began taking evidence on March 5, 2012, and that the proceeding was a combined fact-finding hearing based on allegations in the initial and subsequent docketed neglect petitions. Counsel informed the Court that the hearing was scheduled to continue for months into the future. It made no sense, under any legal analysis, that jeopardy could attach in mid-hearing when a certain witness testified.
In his current motion to reargue, defense counsel has provided additional relevant authority, most specifically. Based on that authority, and its own continuing independent research, this Court finds jeopardy has in fact attached based on the commencement of the Family Court Article 10 combined fact-finding hearing, and, therefore, this criminal action is barred from continuing under federal constitutional “double jeopardy” principles. Breed involved both a civil juvenile delinquency proceeding in Juvenile Court in California and a criminal matter based on identical facts charging the same defendant as an adult with armed robbery in California Superior Court. The juvenile proceeding had begun, and all factual evidence relating to that proceeding had been received in Juvenile Court. However, no final disposition was reached, and the case was then “transferred” to Superior Court. The defendant filed a petition for habeas corpus relief after being found guilty in Superior Court. The United States Supreme Court concluded that, even though the juvenile delinquency proceeding was civil in nature and no final adjudication had taken place, the criminal prosecution was barred. “Jeopardy attached when the Juvenile Court, as the trier of fact, began to hear evidence.”
Although the remedies related to Article 10 proceedings are mainly ameliorative. and not punitive, in this Court’s opinion, based on federal constitutional principles, where a defendant faces punitive consequences for violating an interim order of protection in a Family Court neglect proceeding brought under Article 10 of the Family Court Act, that defendant is placed in “jeopardy” of receiving a jail sentence under section 156 of that act when evidence is first received in the fact-finding hearing in Family Court. The Court takes defense counsel at his word that ACS is seeking a jail sentence in the civil case, and there are no procedural bars to defendant receiving such a sentence if found to have violated the interim order of protection issued in the pending neglect proceeding. If there is a pending criminal action alleging criminal contempt for violating an order of protection, and the factual allegations in the criminal case are identical, in whole or in part, to those in the civil Article 10 pleading, and the same individual faces a punitive sanction in Court following a fact-finding and dispositional hearing, then the criminal contempt proceeding is barred from continuing as a matter of Constitutional double jeopardy once the Court judge has begun to hear evidence in the contempt-based neglect proceeding. Since that is the precise situation in this case, the criminal matter is dismissed.
If you have a case before the Family Court, seek the representation of a Bronx Family Attorney and/or Bronx Order of Protection Attorney in order to defend your case. Call us at Stephen Bilkis and Associates for free legal advice.