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Petitioner Seeks to Remove Order of Protection Against Him


Petitioner is charged with a family offense involving his two preteen sons. At the arraignment, held at the First District Court on April 3, 2009, a temporary stay away order of protection (TOP) was issued against him, pursuant to Criminal Procedure Law. The TOP had an expiration date of April 8, 2009. A New York Family Lawyer said there is no indication in the record that whether the judge directed a TOP hearing or that one was requested by petitioner or his counsel at that time.

On that return date, petitioner and his counsel appeared and while, apparently, certain conversations were held off-the-record, including the presentment of a tape recording of the event to the Assistant District Attorney the record is devoid of any request by petitioner’s counsel for a TOP hearing before the assigned judge. In fact, the transcript reveals that upon the presentment of an amended order of protection by the Assistant District Attorney, an opportunity to spread the matter on the record was offered to petitioner’s counsel for 2:30 p.m. but, aside from a general objection, the record fails to disclose that a request for a TOP hearing was formally made.

Thereafter, as set forth in the civil minutes of the Count)’ Clerk, a notice of petition and petition of an Article 78 proceeding was filed therewith on August 24, 2009. No Request For Judicial Intervention (RJI) was filed for that special proceeding. Subsequently, on August 27,2009, an application for the instant Order to Show Cause was argued before the court. A New York Custody Lawyer said the transcript of that argument showed that the court declined to stay the temporary order of protection and struck that provision from the Order to Show Cause. That order was accompanied by an RJI that was specific to the Order to Show Cause. It appears from the record, that the Article 78 petition, with the separate notice of petition, was never initialized for submission to the Supreme Court. What is before the Court is just the undated Order to Show Cause and various motion papers in opposition to that request and in reply thereto.

In essence, petitioner seeks to set aside the order of protection issued on April 8, 200 (which expires on April 8, 2010). Petitioner argues that he is entitled to a full evidentiary hearing, at his request, before a TOP is issued or continued. To begin, petitioner can not seek in the motion before the Court, as a provisional remedy, the entire relief that he demands in the Article 78 proceeding. Provisional remedies are limited to those set forth in CPLR 6001, which are not applicable to the instant matter.

It was held that while a stay in the proceeding may be sought pursuant to CPLR 7805, it declined to do so on its own initiative.

A Nassau County Family Lawyer said with regard to the relief requested in the Order to Show Cause, together with an order declaring CPL 530 unconstitutional, upon review of the petition annexed as an exhibit to respondents’ papers and the papers submitted by all parties that address that issue, the Court found that petitioner’s claims must be dismissed.

The transcript of the argument highlights petitioner’s claim that first of all, the challenge that we’re bringing is an Article 78 challenge. As noted by the respondents, this Article 78 proceeding was filed on August 24, 2009, more than four months from April 8, 2009, the date of the challenges temporary order of protection. There is little doubt that the TOP became final and binding on the petitioner at that time. Such, renders the proceeding time-barred.

As for the request to declare CPL §530.12 unconstitutional, there is no showing of compliance with the procedures set forth in Executive Law and CPLR. Moreover, aside from respondents’ claim that the validity of a legislative act is not subject to review by an Article 78 proceeding, petitioner has failed to meet his heavy burden of proving the unconstitutionality of the statute beyond a reasonable doubt. As recognized, legislative enactments are imbued with a strong presumption of constitutionality, absence of a clear showing of unconstitutionality, trial courts should presume the validity of statutes.

A Nassau County Custody Lawyer said the petitioner claims, that he was denied an adequate remedy, that is, a meaningful opportunity to be heard. However, the transcript of the April 8. 2009 fails to disclose that infirmity.

As set forth in the statute at issue, a TOP is issued in a family offense matter as a condition of recognizance or bail. That statute provides that the Court may issue a TOP upon the filing of a facially sufficient accusatory instrument and for good cause. Factual challenges are issues for trial. Here, the record reveals that the two accusatory instruments provided sufficient good cause for the issuance of the TOP. The record further discloses that counsel was given an opportunity to argue to the contrary.

The aim of a TOP, protecting the complaining witness or family member, is of predominant importance. However, that does not end the inquiry. While these private interests are deserving of constitutional protection the state’s extraordinary interest in protecting victims of domestic violence from actual or threatened injury and children from the effects of exposure to domestic violence justifies the use of immediate measures to stop violence.

Petitioner’s claim that he is entitled to a full evidentiary hearing is unsupported by law or by due process considerations. While an evidentiary hearing may be appropriate, the need for such a hearing and the form thereof, is best left to the discretion of the arraignment judge,

As long as a meaningful opportunity to be heard is afforded, due process is satisfied. Such does not equate with a full evidentiary hearing, particularly in light of the strong state interest to protect victims of domestic violence. There is no constitutional or statutory right to confront an a accuser prior to trial. All that is required is that the judge must ascertain sufficient facts, which are discernable from the record, as to whether or not a TOP should be issued or continued. Simply put, is there a continuing danger of injury or intimidation to the complainant.

Moreover, to ameliorate any perceived hardships, the statute expressly provides for a motion to vacate or modify a temporary order of protection, on notice to the non-moving party. The record reveals that petitioner has sought such relief from the District Court by Order to Show Cause dated July 20. 2009. Additionally, the statute provides for modification of the TOP to lessen the impact on the family relationship by providing for visitation with children by one who is subject to a TOP. Such procedures sufficiently protect petitioner’s right to due process and leads to the conclusion that the State Legislature intentionally declined to provide for an evidentiary hearing before a TOP is issued or continued.

Therefore, the Court declined petitioner’s invitation to declare CPL §530.12 unconstitutional, since he failed to establish same beyond a reasonable doubt. The Court declined to award relief in the nature of prohibition.

Accordingly, the relief requested in the Order to Show Cause is denied, the motion to dismiss is granted and the proceeding is dismissed.

Domestic violence can have serious physical and psychological effects to the victims. Children can be scarred for life. Don’t be a victim. At the first sign of violence, consult a Nassau County Domestic Violence Lawyer who can educate you on your rights and can help you secure a protection order to stop further abuse.

Stephen Bilkis & Associates with its group of highly experienced Nassau County Family Attorneys has convenient offices throughout the Nassau County area. Our Nassau County Family Attorneys are knowledgeable in handling domestic violence cases and will ensure you and your love ones are protected.

The vicious cycle of domestic abuse will continue without the assistance of a Nassau County Family Lawyer.

Please note that in addition to Nassau County Law, Stephen Bilkis and Associates can recommend a Nassau County Domestic Violence Lawyer in your area to be of service to you.

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