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Court Decides if Temporary Order for Protection in Merited


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. 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.

A New York Family Lawyer said that defendant was arrested and charged with Assault in the Third Degree, and with Harrasment, on the complaint of his wife. According to the complaint of Police Officer Graves, corroborated by the wife on the same day, 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. The alleged assault and harassment occurred after the wife had returned to sleep in the larger apartment and refused to let the husband in.

A New York Custody Lawyer said that at his arraignment, defendant was represented by counsel, and with the consent of the People was released on his own recognizance. At the arraignment, the People requested, and the court issued, a Temporary Order of protection, effective 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. The effect of this Temporary Order of protection was to exclude the defendant from both of the couple’s apartments, since one was arguably the complainant’s home and the other her office.

Thereafter, two days after defendant’s arrest, the wife informed the police that defendant had threatened her with violence over the telephone and that she had a Temporary Order of protection. 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.

Thereafter, defendant and his counsel appeared in Part AP 3 of this court and orally requested that the TOP be modified to allow the defendant access to one of the two apartments. The application was denied with leave to renew in writing. A Queens Family Lawyer said a new TOP was issued, without a hearing, on the same terms as previously, and made effective, unless extended by the Court. Later, by order to show cause returnable, defendant moved to vacate the TOP as based on insufficient evidence and issued in violation of due process of law. Additionally, and alternatively, defendant moved for a hearing pursuant to CPL 510.20 to vacate the TOP as a condition of his recognizance. While this motion was pending, defendant sought and was denied review of the TOP in the Supreme Court, New York County, on the ground that CPL 530.30 did not authorize such review.

A Queens Custody Lawyer said by an Order, without opinion, the Court withdrew its oral decision that there was 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 Temporary Order of protection on constitutional grounds; and dismissed the charge of Criminal Contempt in the Second Degree, P.L. 215.50(3). This Amended Order and Decision supplements the Order issued on April 28, 1989.

According to defendant, CPL 530.12(1)(a) offends the requirements of due process of law of the Fourteenth Amendment to the United States Constitution in that it fails to provide an accused with an opportunity to be heard in opposition to the issuance of a Temporary Order of protection excluding him from his home, either prior or subsequent to its issuance, provides no criteria for the issuance of such a TOP, and does not require that the court issuing the TOP state its reasons on the record.

Defendant’s constitutional arguments must be assessed in relation to the procedures and criteria for the issuance of TOPs pursuant to CPL 530.12(1) as prescribed by New York statutes and case law. In the instant case, determining what those procedures and criteria are is itself an interpretive task, since they are nowhere set out in a coherent fashion. The court is required to interpret CPL 530.12(1)(a), if possible, so as to preserve its constitutionality.

CPL 530.12(1) itself does not prescribe the procedure to be followed when an application for a TOP is made. However, CPL 510.20 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 CPL 530.12(1), as well as its statutory location in CPL Article 530, the determination whether to issue a temporary order of protection is a part of the process of setting bail or recognizance. Reading CPL 530.12(1) in tandem with CPL 510.20, it follows logically that the statutory right to be heard afforded by CPL 510.20 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 pursuant to CPL 510.20, an adversary evidentiary hearing is not required on an initial application for bail or recognizance.

At arraignment, in addition to the presentation of an accusatory instrument, defendant’s NYSID sheet and the report of the Criminal Justice Agency, a hearing on an initial application for bail or recognizance pursuant to CPL 510.20 customarily consists of the presentation of facts and legal argument by prosecution and defense counsel, and counsel’s responses to questioning by the Court. Sufficient facts must be presented to enable the Court to make a determination “on the basis of the available information,” Thus, at defendant Forman’s arraignment, the People were required to make a presentation of facts and law to support their application for a TOP excluding him from his home, and defendant, by counsel, was entitled to present facts and law in opposition to the application.

Following arraignment, numerous courts have held, relying on CPL 510.20, that when issues of fact are raised by a contested application for bail or recognizance, an evidentiary hearing on the issue must be scheduled either on the Court’s initiative or on defendant’s request.

The standard for the issuance of a Temporary Order of protection, while not provided by statute, may be derived from the common law as it is embodied in caselaw. In the absence of a statutory standard, CPL 530.12(1) must be read as incorporating the authority of a court entering a securing order, CPL 500.10(5), to prescribe conditions of bail or recognizance for the protection of threatened and intimidated witnesses. This authority derives from the inherent power of a court to preserve the integrity of the judicial process. The standard to be applied in determing whether to impose conditions of bail or recognizance for the protection of witnesses is whether there is a “danger of intimidation or injury.”

The legislative history of CPL 530.12 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 pursuant to CPL 530.12. 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.

Defendant claims that pursuant to the Fourteenth Amendment to the United States Constitution an evidentiary hearing must be held before a TOP excluding a defendant from the home may issue. 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.

Applying the factors to the instant case, we turn first to the private interest affected. A Temporary Order of protection excluding defendant from the home is not an adjudication of title, and is not to be mistaken for a legal order of eviction pursuant to RPAPL, Article 7. 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.

Clearly, the property interest of the defendant affected by exclusion from the home pursuant to a Temporary Order of protection 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. Were no timely hearing available to defendant with respect to the TOP excluding him from his home, CPL 530.12(1)(a) would indeed be unconstitutional.

The requirements of due process do entitle defendant to a prompt evidentiary hearing after the Temporary Order of protection 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 time frames of the speedy trial requirements, CPL 30.30, are too long for exclusion from the home pursuant to CPL 530.12(1)(a) to continue without an evidentiary hearing.

Having reviewed the procedures which the Fourteenth and Fourth Amendments would require to support the issuance of a Temporary Order of protection excluding defendant from the home pursuant to CPL 530.12(1)(a), I conclude 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 Temporary Order of protection may be issued at arraignment, 1. 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 CPL 100.15(3); CPL 100.40(4); 2. 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, CPL 530.12(1), CPL 510.20; 3. 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, 4. 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 of CPL 530.12(1)(a). 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.

Accordingly, defendant cannot be prosecuted for Criminal Contempt in the Second Degree, P.L. 215.50(3) for alleged violation of paragraph (b) of the Temporary Order of protection, and that count must be dismissed. The dismissal is without prejudice to the filing of charges of Aggravated Harassment.

In case of abuses, a party can ask a relief from the court for the issuance of a protective order. Here in Stephen Bilkis and Associates, our Suffolk County Order of Protection lawyers guide and protect the abused and help them enforce their rights. For, other matters, consult our Suffolk County Family attorneys for a competent advice.

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