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Plaintiff Alleges Former Husband Comitted 3d Degree Assault



In this family case, defendant moves this Court for an order, pursuant to Criminal Procedure Law § 170.30(1)(f), dismissing the charge of Assault in the Third Degree on the grounds that there exists a legal impediment to conviction.

That Complainant executed a misdemeanor information on December 8, 1990, alleging that her former husband intentionally caused physical injury to her on December 8, 1990 at 6:10 p.m. in the Village of Hastings-on-Hudson, New York.

On December 10, 1990, Complainant filed a Family Offense Petition in the Family Court of the State of New York, County of Westchester, alleging that Respondent on December 8, 1990 committed acts against her which constituted harassment and assault in the third degree. The specific allegations of the petition concerned the same incident that formed the basis for the misdemeanor information.

At Petitioner’s request, the Family Court issued a Temporary Order of Protection. In her petition, she also alleged that no accusatory instrument alleging the acts specified in the petition had been filed in any criminal court, although two days earlier she had filed such an accusatory instrument.

The defendant was arraigned in this Court on December 12, 1990 at which time this Court, issued a Temporary Order of Protection in favor of complainant. Thereafter there occurred numerous requests for adjournments, discussions of a possible disposition, and scheduling of motions–which never were received. Defendant then retained a new attorney who brings the present motion to this Court.

The People contend that Complainant was advised by the Family Court to pursue the matter in a criminal court and that she did so choose. The People submitted copies of letters which she identifies as having been written by her to both the Family Court and this Court regarding her decision to proceed in this Court. The file of this Court has been examined for the original of this letter. There is no such letter in this Court’s file. In addition, there is no court order from the Family court directing that the matter be prosecuted as a criminal action.

The parties do not dispute that the charges in the two courts arise from the same incident. Nor do the parties dispute that the Family Court petition was filed within three days of the commencement of the criminal proceeding before this Court. The issue presented is whether the actions of complainant/petitioner constituted an election to proceed in Family Court that deprived this court of its jurisdiction over the previously commenced criminal action.

The Criminal Procedure Law and the Family Court Act provide that a complainant or petitioner in regard to designated offenses may elect to proceed in the alternate forum provided that the election is made within three days of the commencement of a proceeding in the first forum, CPL § 530.11 and FCA § 812.

As a result, a person complaining of disorderly conduct, harassment, menacing, reckless endangerment, assault in the second degree, assault in the third degree or attempted assault by a spouse, parent, child or a member of the same family or household may commence a criminal proceeding by filing a complaint and then may elect to proceed in Family Court by filing a petition there.

Prior to 1977 the Family Court had exclusive jurisdiction to entertain petitions concerning certain of the above-enumerated offenses. Concurrent jurisdiction in a criminal court was enacted by Chapter 449 of the Laws of 1977.

The legislature was concerned with the irrevocability of such a choice and amended the statutes in 1978 to permit a victim to change forum provided the decision to switch was made within 72 hours of the filing in the original forum; the intent of the legislature was to offer victims a choice between two exclusive alternative forums.

Both the CPL and the FCA provide that, subject to FCA § 813, the filing of an accusatory instrument or family court petition in the alternate forum “constitutes a final choice of forum.” after three days, exclusive of Saturdays, Sundays and legal holidays, have elapsed, CPL § 530.11(2)(e) and FCA § 812(2)(e)


Significantly, both FCA and CPL address the consequences of a petitioner/complainant’s final selection of a forum. FCA § 812(2)(e) provides that once the selection is made, and three days elapse, any person who is a party to such proceeding shall be barred “from bringing a subsequent proceeding in an alternative court based on the same offense.”

Despite such differences in wording, this Court reads FCA § 812(2)(e) and CPL § 530.11(2)(e) as being substantially similar and together expressing the legislative intent to prevent simultaneous proceedings. Although FCA § 812(2)(e) provides that a “party” is prevented from “bringing” a subsequent proceeding, the balance of that section (regarding the effect of a finding on the merits within 72 hours in the original forum) and CPL § 530.11(2)(e) refer to a “bar” of “any subsequent proceeding.”

Thus, the statutes are not silent as to the consequence of dual filing: the first case is barred from proceeding once the second filing has taken place and has remained pending for three days. FCA § 812(2)(e) and CPL § 530.11(2)(e) do not restrict just the commencement of a proceeding; rather, they bar subsequent proceedings, which this Court interprets to include commencement as well as continuation. The CPL language in particular applies to the facts of this case and bars this Court proceeding from continuing subsequent to Ms. Smith’s selection of Family Court as the final forum. 1

Specific language terminating the first forum’s proceedings is not required in the election of forum statutes, because of the provisions that bar subsequent proceedings. By comparison, FCA § 813 does contain a provision for termination of a Family Court proceeding if a Family Court Judge, with the consent of the petitioner and upon reasonable notice to the District Attorney, orders a case transferred from Family Court to a criminal court when the interests of justice so require. 2 However, a transfer under FCA § 813 would not be in the context of an election between two forums with pending proceedings where subsequent proceedings in the first are specifically barred; therefore, a specific termination clause is appropriate in FCA § 813.

Under the facts of the within action, the Family Court had jurisdiction over petitioner’s complaints because it was the final choice of forum. It could have returned the case to this Court under FCA § 813 if the interests of justice so required.

Thus, this Court concludes that the Legislature’s intent is expressed and effectuated by the admittedly less-than-perfectly drafted FCA and CPL election provisions. On that basis, proceedings commenced within three days of each other may not continue simultaneously in both the Family Court and local criminal court. If a choice of forum means anything, it means that the victim must select between one or the other court proceeding and may not maintain both.

Therefore, Defendant’s motion is granted. The attorneys are directed to submit an Order on notice. The People are directed to communicate with complainant and inform her: that the Order of Protection issued by this Court will remain in effect until this Court signs the order granting Defendant’s motion; and that, if complainant considers herself in continuing need of an order of protection once this Court signs the dismissal order, she should proceed to Family Court at once and request reinstatement of her earlier proceedings and issuance of an order of protection.

If the Family Court decides that the interests of justice require that the matter be prosecuted as a criminal proceeding, then the court may issue an order pursuant to FCA § 813 directing such prosecution. Then and only then would this Court have jurisdiction over this proceeding.

If you are a victim of abuse and violence contact Stephen Bilkis and Associates. We have offices located throughout New York, including locations in Manhattan, the Bronx, Brooklyn, Queens, Staten Island, Long Island, Nassau County, Suffolk County and Westchester County.

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