162 Misc. 2d 22 | N.Y.C. Fam. Ct. | 1994
OPINION OF THE COURT
In this Family Court Act article 8 family offense proceeding, petitioner spouse filed a supplemental petition dated March 15, 1994, alleging that respondent failed to obey the modified order of protection issued by this court dated November 15, 1993. This supplemental petition alleged that respondent on March 8, 1994, upon release from incarceration for prior violation of the order of protection, arrived at petitioner’s
At the dispositional phase of this supplemental proceeding brought pursuant to Family Court Act § 846, the court based on the prior history of family offense activity perpetrated upon petitioner by respondent; the fact that respondent had been committed previously by a court in Nassau County to incarceration for 180 days; that respondent apart from that commitment, had been civilly committed by this court for willful violation of the order of protection to incarceration for six months; that respondent upon release from this most recent commitment had almost simultaneously violated the order of protection again on March 8, 1994; that respondent’s behavior indicated an intractable design to continue to annoy and harass petitioner; and considering the welfare not only of petitioner, but of the two children, the court determined to civilly commit the respondent for each of the two willful violations to a term of incarceration of six months for the finding of violation occurring on March 8, 1994 and of four months for the finding of violation occurring on March 11, 1994, to run consecutively.
Respondent on April 12, 1994 filed a motion returnable April 27, 1994 seeking reargument of the dispositional order dated April 7, 1994. In his motion respondent relies on recent appellate authority, to wit, Matter of Vitti v Vitti (202 AD2d 917 [3d Dept 1994]), which holds that Family Court Act article 8 does not authorize imposition of consecutive commitments. The Third Department stated that in its view this statute, on
This holding in a practical sense constitutes a judicial fiat that regardless of the number of separate willful violations committed by a 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 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
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 (supra) 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 Ct Act § 156). Family Court Act § 846 states in pertinent part that petitioner who has obtained a lawful order of protection of Family Court may
Family Court Act §§ 846 (added L 1980, ch 530, § 10) and 846-a were enacted to "establish a formal procedure (and specific remedies) for the willful violation of a lawful court order” (Besharov, Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 846, at 202). The legislative history of section 846 discloses that it came into being as part of an act to amend the Family Court Act, the Domestic Relations Law, the Judiciary Law, the Criminal Procedure Law and the Penal Law, in relation to family offenses and to repeal certain provisions of the Family Court Act relating thereto. The Bill Jacket and preamble show that the Legislature was aware that the activity embraced within a family offense could occur on one occasion (family offense) or be displayed on separate, distinct and repeated occasions (family offenses). The Executive Memorandum filed with the Assembly and Senate bills clearly shows an intent "to clarify and expand provisions for preliminary relief and enforcement of orders of protection” and recognized that "[violence in the home is as serious a breach of public order and safety as violence in the streets. Family violence is learned by children who take the violent response into the schools and streets, and later transmit it to their children. Strengthening of legal sanctions against violence in the home is a step toward stopping it in individual cases.” (Governor’s Mem, 1980 McKinney’s Session Laws of NY, at 1877-1878.) Documentation supporting the bills noted the following: authority is granted
The State Legislature in liberalizing the statutes to effect greater protection to the victims of domestic violence by enactment of chapter 350 of the Laws of 1980 is deemed cognizant that Family Court is a nonjury institution wherein the court sits as both finder of fact and of law. At the time of this statutory enactment, Family Court Act § 847 provided and still provides: "An assault, attempted assault or other family offense as described in section eight hundred twelve of this article which occurs subsequent to the issuance of an order of protection under this article shall be deemed a new offense for which the petitioner may elect to file a violation of order of protection petition, or a new petition or initiate a proceeding in a criminal court.” This election is with the petitioner and not with the court whether at trial or appellate level. As noted by Besharov: "This section gives to the petitioner a choice of remedies for a family offense committed after the issuance of an order of protection. The most important option it gives the petitioner is, of course, the right to reconsider the original election of a civil remedy and to initiate a criminal prosecution” (Practice Commentary, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 847, at 207). Accordingly it is clear that the Legislature has created a sui generis civil remedy for violation of a Family Court order of protection in Family Court, to wit, a supplemental petition alleging such violation or violations, if more than one, under Family Court Act §§ 846, 846-a and 847. The authority specifi
Against this background, the Third Department in Vitti
Since the plain and commonsense meaning of sections 846 and 846-a is that a respondent who commits separate and distinct violations, not incidental to a single transaction or event, is subject to civil commitment for up to six months on each violation, the grant of such authority implicitly invokes the power to make such commitments run concurrently or consecutively where appropriate. Guidance as to when such civil commitments should run consecutively or concurrently may be obtained from an examination of Penal Law § 70.25 entitled "Concurrent and consecutive terms of imprisonment.” Since the Family Court Act is silent as to strictures or tenets in this regard, the teachings under the analogue of criminal contempt (a crime) as delineated in the Penal Law are instructive. Study of these teachings discloses that under circumstances where the violations arose out of a single act or transaction, the commitments should be concurrent, but where the violations arose out of separate and distinct acts, consecutive commitments may be properly imposed (see, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 70.25, at 307; Notes of Decisions, op. cit.).
Respondent’s argument that Family Court has no power to impose two consecutive commitments of six months and four months each is not sustainable if predicated on the ground that the Family Court has no power to impose consecutive commitments regardless of the terms of such commitments. Rather, respondent’s argument is viewed as articulate in the sense of urging that violation of a civil order of protection is criminal, not civil, contempt and imposition of consecutive commitments in excess of a total period of six months invokes his right to jury trial (see, Codispoti v Pennsylvania, 418 US 506 [1974]). The US Constitution 6th Amendment provides, inter alia, that the accused in all criminal prosecutions shall enjoy the right to trial by an impartial jury. It appears that
In Family Court, a court of limited jurisdiction, the court sits as both finder of fact and law. The court has no power to impanel a jury. The Legislature in enacting article 8 — family offense proceedings — established a civil proceeding designed to protect family members from domestic violence, a major social problem. In authorizing Family Court to extend this protection, the Legislature apprehended that jury trials are not institutionalized within Family Court. Justice Scalia in United States v Dixon (supra) correctly observed the uniqueness of such grant of power.
Accordingly, the court denies respondent’s motion seeking reargument of the dispositional order dated April 7, 1994, concluding that under the circumstances herein the court does have the authority to issue consecutive civil commitments for willful distinct and separate violations of the order of protection, albeit the total term of such consecutive commitments exceeds six months.
. The background of this supplemental proceeding is as follows: on January 15, 1993, on consent, petitioner wife obtained a final order of protection for one year directing that respondent shall not assault, menace, harass or recklessly endanger petitioner and the children and shall stay away from petitioner’s home. A supplemental petition was filed February 8, 1993, alleging violation in that, inter alla, respondent entered petitioner’s home on February 6, 1993. On February 9, 1993, the parties appeared and counsel were appointed to petitioner and respondent. A short evaluation of respondent was conducted by the Mental Health Services. It was reported that respondent possibly suffered from a posttraumatic stress disorder and was experiencing severe depression and anxiety and had a history of two prior psychiatric hospitalizations. The court remanded respondent to Elmhurst General Hospital for a full evaluation with a direction that respondent be released to court only. On February 10, 1993, respondent was produced together with a letter from Elmhurst General Hospital subscribed by Dr. Laurence Schiff, M.D. psychiatry, dated February 10, 1993 certifying that respondent was evaluated and found not to suffer from "any major mental illness, and does not present any acute evidence of homicidality or suicidality at this time.” Respondent was released to his own recognizance.
Subsequently the court was advised that petitioner had proceeded in Criminal Court, Nassau County, and that respondent was sentenced to 180 days’ incarceration. Accordingly the supplemental petition dated February 8, 1993 was dismissed. On November 8, 1993, petitioner filed a second supplemental petition alleging that respondent on October 25, 1993, shortly after his release from incarceration, threatened to kill petitioner, that "on November 1, 1993, respondent climbed into petitioner’s window from the fire escape, but when petitioner’s 15-year-old son saw respondent entering the residence did chase respondent out of the residence with a cooking fork” and that "on November 3, 1993 at approximately 11:30 a.m respondent followed petitioner when she dropped the child off at the child’s day care, and attempted to chase petitioner and when she called police respondent fled.” It is noted that the parties’ two children David then age 15 and Melissa then age 2 were covered by the order of protection. On November 15, 1993 after a hearing this court found beyond a reasonable doubt that respondent had violated the final order of protection as alleged. At that hearing the parties’ oldest child testified against the father. Based on the number of violations, their increasing severity, and mindful that respondent had already served a period of incarceration, in disposition of this supplemental petition, the court civilly committed the respondent for six months and in addition modified the final order of protection to continue for one
. Recently the Legislature approved and the Governor signed a bill on June 30, 1994 (L 1994, ch 222, S 8642, A 11992) entitled "the family protection and domestic violence intervention act of 1994”. The majority of the provisions of this act take effect January 1, 1995. Section 1 entitled "Legislative findings” states:
"The legislature hereby finds and declares that there are few more prevalent or more serious problems confronting the families and households of New York than domestic violence. It is a crime which destroys the household as a place of safety, sanctuary, freedom and nurturing for all household members. We also know that this violence results in tremendous costs to our social services, legal, medical and criminal justice systems, as they are all confronted with its tragic aftermath.
"Domestic violence affects people from every race, religion, ethnic, educational and socio-economic group. It is the single major cause of injury to women. More women are hurt from being beaten than are injured in auto accidents, muggings and rapes combined.
"The corrosive effect of domestic violence is far reaching. The batterer’s violence injures children both directly and indirectly. Abuse of a parent is detrimental to children whether or not they are physically abused themselves. Children who witness domestic violence are more likely to experience delayed development, feelings of fear, depression and helplessness and are more likely to become batterers themselves.
"No age group is immune from domestic violence. Too many of New York’s elderly residents have become the victims of their own family or household members, leaving these senior citizens without hope or meaningful legal redress.
"A great deal of progress has been achieved in the effort to heighten public awareness about domestic violence and to provide services for affected family members. Dedicated individuals, shelter programs and advocacy organizations have been working successfully for years in order to provide refuge, counseling, legal relief and protection to victims of family violence. These efforts have also played a key role in bringing this issue into the open by helping individuals to survive domestic violence and work toward its prevention.
"Fortunately, with this heightened awareness has come a considerable shift in the public understanding of, and perspective on, domestic violence. In recent years, for example, what was once largely considered a private matter has come to be more correctly regarded as criminal behavior.
"The legislature further finds and declares that domestic violence is criminal conduct occurring between members of the same family or household which warrants stronger intervention than is presently authorized under New York’s laws. The integrity of New York’s families from its youngest to its oldest members is undermined by a permissive or casual attitude towards violence between household members. The legislature*30 further finds and declares that in circumstances where domestic violence continues in violation of lawful court orders, action under the criminal law must remain in place as a necessary and available option. Notwithstanding the evolution of the law of domestic violence in New York, death and serious injury by and between family members continues unabated. The victims of family offenses must be entitled to the fullest protections of our civil and criminal laws.
"Therefore, the legislature finds and determines that it is necessary to strengthen materially New York’s statutes by providing for immediate deterrent action by law enforcement officials and members of the judiciary, by increasing penalties for acts of violence within the household, and by integrating the purposes of the family and criminal laws to assure clear and certain standards of protection for New York’s families consistent with the interests of fairness and substantial justice” (emphasis supplied).
. Justice Scalia states:
"To place these cases in context, one must understand that they are the consequence of an historically anomalous use of the contempt power. In both Dixon and Foster, a court issued an order directing a particular individual not to commit criminal offenses (In Dixon’s case, the court incorporated the entire criminal code, in Foster’s case, the criminal offense of simple assault.) That could not have occurred at common law, or in the 19th-century American judicial system.
"At common law, the criminal contempt power was confined to sanctions for conduct that interfered with the orderly administration of judicial proceedings. 4 W. Blackstone, Commentaries* 280-*285. That limitation was closely followed in American courts. See United States v. Hudson and Goodwin, 7 Cranch. 32, 34 * * * (1812); R. Goldfarb, The Contempt Power 12-20 (1963). Federal courts had power to 'enforce the observance of order,’ but those 'implied powers’ could not support common-law jurisdiction over*33 criminal acts. Hudson and Goodwin, supra, at 34. In 1831, Congress amended the Judiciary Act of 1789, allowing federal courts the summary contempt power to punish generally 'disobedience or resistance’ to court orders. § 1, Act of March 2, 1831, 4 Stat. 487-488. See Bloom v. Illinois, 391 U.S. 194, 202-204 * * * (1968) (discussing evolution of federal courts’ statutory contempt power).
"The 1831 amendment of the Judiciary Act still would not have given rise to orders of the sort at issue here, however, since there was a long common-law tradition against judicial orders prohibiting violation of the law. Injunctions, for example, would not issue to forbid infringement of criminal or civil laws, in the absence of some separate injury to private interest. See, e.g., 3 Blackstone, supra, at Ò426, n. 1; J. High, Law of Injunction § 23, pp. 15-17, and notes (1873) (citing English cases); C. Beach, Law of Injunctions §§ 58-59, pp. 71-73 (1895) (same). The interest protected by the criminal or civil prohibition was to be vindicated at law — and though equity might enjoin harmful acts that happen to violate civil or criminal law, it would not enjoin violation of civil or criminal law as such. See, e.g., Sparhawk v. The Union Passenger R. Co., 54 Pa.St. 401, 422-424 (1867) (refusing to enjoin railroad’s violation of Sunday closing law); Attorney General v. The Utica Insurance Co., 2 Johns. Ch. 371, 378 (N.Y. 1817) (refusing to enjoin the violation of banking statute).” (United States v Dixon, 509 US —, —, 113 S Ct 2849, 2855 [1993], supra.)
. It is noted that in United States v Dixon, (509 US —, 113 S Ct 2849 [1993], supra), Foster was found guilty beyond a reasonable doubt of four counts of criminal contempt (three violations of Ana Foster’s civil protection order, and one violation of her mother’s civil protection order) and was imprisoned for an aggregate 600 days (some 20 months) after a three-day bench civil trial (see, DC Code Ann § 16-1005 [f] [authorizing contempt punishment]; Sup Ct of DC Intrafamily Rules 7 [c]; 12 [e] [maximum punishment of six months’ imprisonment and $300 fine]). This did not perturb the Supreme Court despite its holding in Codispoti (supra) some nine years earlier.
DC Intrafamily Rule 7 "motions” governing intrafamily proceedings provides in subdivision (c) for a motion for contempt for violation of protection order. Rule 12 "contempt” as to motions for contempt for violation of a civil protection order states:
"(b) Violation of protection order. A motion alleging one or more violations of a temporary order or civil protection order shall be filed and served pursuant to Rule 7 (c).
"(c) Contempt hearing procedures.
"(1) The respondent has the right to counsel and shall be so advised.
"(2) Anytime the judge contemplates imposing a sentence of imprisonment if the contempt is proven beyond a reasonable doubt, the judge may appoint counsel for the respondent. The Court may also request that the Corporation Counsel represent the petitioner.
*35 "(3) If the respondent requests a continuance the judge may grant the continuance on any one or all of the following conditions:
"(A) That any existing temporary protection order or civil protection order be extended,
"(B) That additional conditions to ensure the safety of the moving party be imposed (e.g., vacation of the premises pending the continuance; a temporary total ban on visitation; awarding temporary custody of a minor child of the parties),
"(C) That the respondent receive no further continuances.
"(4) Both parties have the right to present sworn testimony of witnesses and other evidence in support of or in opposition to the motion. The respondent may not be compelled to testify or give evidence.
"(d) Application of the spousal privilege. One spouse is a competent and compellable witness against the other and may testify as to confidential communications, but testimony compelled over a claim of privilege shall be inadmissible as evidence in a criminal trial over the objection of a spouse entitled to claim that privilege.
"(e) Punishment upon finding of contempt by the Division. Contempt may be punished by a fine or penalty of not more that $300.00 or by imprisonment for not more than six (6) months, or both.” (Emphasis supplied.)