OPINION OF THE COURT
On June 24, 1988, defendant Milton Forman was excluded from his home by the terms of a temporary order of protection issued pursuant to CPL 530.12 (1) (a). He contends that this temporary order of protection was issued without affording him an opportunity to be heard, and that the procedures and lack of standards for the issuance of temporary orders of protection pursuant to CPL 530.12 (1) and (1) (a) violate Federal constitutional due process requirements.
CPL 530.12 (1) provides that in a criminal action "involving a complaint charging any crime or violation between spouses, parent and child, or between members of the same family or household, as defined in [CPL] section 530.11 * * * the court * * * may issue a temporary order of protection as a condition of any order of recognizance or bail”. According to CPL 530.12 (1), such a temporary order of protection (TOP) may require the defendant,
"(a) to stay away from the home, school, business or place of employment of the family or household member or of any designated witness;
"(b) to permit a parent to visit the child at stated periods * * *
"(c) to abstain from offensive conduct against the child or against the family or household member or against any person to whom custody of the child is awarded;
"(d) to refrain from acts of commission or omission that tend to make the home not a proper place for the family or household member.”
The statute, since amended by Laws of 1988 (ch 702), does not specify a standard or list criteria on the basis of which a court is to determine whether a temporary order of protection should issue.
Defendant Milton Fоrman and complainant Barbara For-man 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.
Defendant was arrested on June 24, 1988 and charged with assault in the third degree (Penal Law § 120.00), and with harassment (Penal Law § 240.25), on the complaint of his wife. According to the June 24 complaint of Police Officer Graves, corroborated by Barbara Forman 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.
At his arraignment on June 24, 1988, 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 until July 17, 1988, 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 temporary order of protection, issued on the officially prescribed form used for this purpose in the Criminal Court for the City of New York ("Form no. 2 [Family Offense-Temporary Order of Protection]”), directed defendant as follows: (a) to stay away from the home, school, business or place of employment of Barbara Forman; (c) to abstain from offensive conduct against Barbara Forman; and (d) to refrain from acts of omission or commission that tend to make the home not a proper place for Barbara Forman.
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.
On June 26, 1988, two days after defendant’s arrest, Bar
On July 13, 1988, 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 new TOP was issued, without a hearing, on the same terms as previously, and made effective until August 1, 1988, unless extended by the court. On July 15, 1988, by order to show cause returnable on July 26, 1988, dеfendant 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, on July 18, 1988, 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.
On July 20, 1988, the defendant’s written motion was disposed of by stipulation. The People and the defendant agreed in writing that a hearing would be held to determine defendant’s claim "that an Order of Protection should not have been issued in this case and that the police do not have probable cause to arrest me [the defendant] for violation of that Order of Protection.” On July 26, 1988 the stipulation was apprоved by the Presiding Judge and the hearing was scheduled for August 1, 1988.
The hearing was held before this court. Consistent with the stipulation, testimony was limited to the question whether there was sufficient evidence to justify the issuance of a TOP as of June 24, 1988, and whether there was a current basis for its continuation. Although called for by the stipulation, no evidence was taken at the hearing to determine whether there was probable cause to arrest the defendant for violation of the TOP. Instead, with the defendant’s consent, the People filed a "Superseding Amendment” to the information charging the defendant with criminal contempt in the second degree (Penal Law § 215.50 [3]). The new count alleged that on June 26, in violation of the June 24 temporary order of protection, the
At the conclusion of the hearing, on August 4, 1988, this court orally ruled that the evidence supported the issuance of the initial TOP on June 24, 1988, and issued a new temporary order of protection excluding defendant from only one of the two apartments owned by him jointly with his wife. Decision was reserved on all issues of law. The parties agreed that defendant’s constitutional challenge to CPL 530.12 would also be treated as a motion to dismiss the added charge of criminal contempt in the second degree (Penal Law § 215.50 [3]).
By an order, without opinion, dated April 28, 1989, this court withdrew its August 4, 1988 oral decision that there was оn June 24, 1988 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 June 24, 1988 temporary order of protection on constitutional grounds; and dismissed the charge of criminal contempt in the second degree (Penal Law § 215.50 [3]). This amended order and decision supplements the order issued on April 28, 1989.
SCOPE OF HEARING HELD TO REVIEW ISSUANCE OF TOP
The stipulation pursuant to which the hearing before this court was held was based on a fundamental misconception. The TOP of June 24, 1988 was issued as a condition of defendant’s release on his own recognizance. (CPL 530.12, 510.20, 510.30 [2] [a].) A fundamental principle of the law governing securing orders is that a Judge may not review a determination of bail or recognizance made by a Judge of coordinate jurisdictiоn nunc pro tune, and may only modify such a determination prospectively on the basis of new facts adduced. (People ex rel. Manceri v Doherty,
The issue properly presented at the hearing held before this
The complainant Barbara Forman testified credibly that on June 24, 1988 the defendant punched her in the mouth, knocking out one of her front teeth, that the defendant had a history of violent conduct, including specifically, an incident in May 1987 during which defendant shoved her into a wall injuring her elbow, and an altercation in October 1987 when defendant knocked complainant to the floor, causing her to break an ankle, forced her to walk on the broken ankle and then threw books at her. The complainant wife had previously initiated and then abandoned a family offense proceeding in the Family Court (Family Ct Act art 8) and for a time had a temporary order of protection from that court. Defendant presented no witnesses at the hearing, and did not persuasively impеach complainant’s credibility through cross-examination. Complainant also swore to the allegations of the "Superseding Amendment” to the information that two days after the initial TOP was issued by the Criminal Court, the defendant telephoned her and told her that he had a gun and was coming to see her. All this evidence established that there was a substantial danger of intimidation or injury to the complainant and supported the issuance of a new TOP on August 4, 1988. This court adheres to its initial determination on this point.
STANDING AND MOOTNESS
Before defendant’s constitutional attack on CPL 530.12 (1) and (1) (a) may be addressed, defendant must overcome certain prudential objections raised by the People to the court’s consideration of the constitutional questions presented by him.
The People also assert that this controversy has become moot, because the temporary order of protection of June 24, 1988 has since been continued or replaced by subsequent orders.
The court agrees with the defendant that he has standing to maintain his constitutional defenses, and that he has presented a live dispute appropriate for adjudication.
In determining whether defendant has standing to raise his constitutional challenge, it must be shown that his "personal or property rights will be directly and specifically affected.” (Matter of Abrams v New York City Tr. Auth.,
Defendant’s liberty and property interests were and are restricted by each of the various temporary orders of protection issued against him. He presently faces criminal prosecution, now based in part on his violation of the order which he claims to be unconstitutional. Each of the temporary orders of protection restrict defendant’s liberty to go where he pleases— he may not go to the home, business or plаce of employment of his wife, as well as his associational liberty in relation to his wife. (Griswold v Connecticut,
Although the temporary order of June 24, 1988 is no longer in effect, the controversy surrounding its issuance is not moot. Defendant currently faces prosecution for the violation of the order of June 24. In addition, the temporary nature of short-term orders may not be usеd to insulate them from legal challenge. A case will not be treated as moot where the problem presented is capable of repetition, typically evades review, and is novel and substantial. (Matter of Hearst Corp. v Clyne,
EXISTING PROCEDURES AND CRITERIA FOR THE ISSUANCE OF TEMPORARY ORDERS OF PROTECTION
According to defendant, CPL 530.12 (1) (a) offends the requirements of due process of law of the Fourteenth Amendment to the US 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
CPL 530.12 (1) itself does not prescribe the procedure to be followed when an application for TOP is made. However, CPL 510.20 (2) provides that whenever a court is required to issue a securing order, whether for recognizance or bail, a defendant "must be accorded 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 thе 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. According to People v Stevens (
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 available information” (CPL 510.30 [2] [a]), taking into account the criteria enumerated in CPL 510.30 (2) (a). (People ex rel. Ryan v Infante,
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. (Matter of Buthy v Ward,
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 case law. (Cf., People ex rel. Shaw v Lombard,
defendant’s constitutional challenge
(a) Right to a prior evidentiary hearing
Defendant claims that pursuant to the Fourteenth Amendment to the US Constitution an evidentiary hearing must be held before a TOP excluding a defendant from the home may issue. Although this claim was previously considered in People v Faieta (
Whenever State action deprives a citizen of his or her liberty or property due process requires that he or she be afforded the opportunity fоr a hearing. (Schall v Martin,
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. Even where not formally designated as such, the factors outlined in Matthews v Eldridge (supra, at 335) are those most consistently relied upon: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.” (Compare, Gerstein v Pugh,
Applying those 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. (People v Garland,
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
The State’s interest in the issuance of temporary orders of protection pursuant to CPL 530.12 (1) and (1) (a) is also a significant one. Domestic violence has come to be recognized as a social scourge of the first order. (See, 1986 Report, Governor’s Commn on Domestic Violence, at 3-4; Report of New York Task Force on Women in the Courts, 15 Fordham Urban L J 1, 47.) Not only does the State have a strong interest in combatting domestic violence through criminal prosecutions, but that interest is severely undermined if victims of domestic violence are too frightened by further threats and acts of violence to participate in the criminal prosecution of their cases. Further, the State’s interest in combatting domestic violence through criminal prosecutions is closely linked to the interest of courts, as State instrumentalities, in protecting the integrity of judicial proceedings. The great potential for violence and intimidation which is present when both the victim and the perpetrator of domestic violence continue to live under the same roof is self-evident. Where danger of injury or intimidation to a complainant can be shown to exist, the device of a temporary order of protection excluding the accused from the home, and otherwise restraining victim harassment and intimidation, is indispensable to the maintenance of a criminal prosecution. Moreover, the State has an interest in the issuance of the TOP at the earliest possible time, since the danger of intimidation and injury to the complainant, if it еxists, is an immediate one. In
The risk of error in determining whether a TOP excluding a defendant from the home should be issued is clearly greater when the determination is based only on the documents and arguments of counsel available to the court at arraignment rather than on the testimony of live witnesses subject to cross-examination. The adversary process would better assist the court in making the crucial assessment of the complainant’s credibility, the extent of any injuries suffered and threats made, and the defendant’s history of violent behaviour toward the complainant and others.
Despite the strеngth of defendant’s constitutional interest, and the evident if unquantifiable risk of error, the emergency nature of the decision, as well as the practical difficulties inherent in convening an immediate evidentiary hearing, mitigate against the imposition of such hearings as constitutionally required before a TOP may first be issued at arraignment.
The United States Supreme Court and the United States Court of Appeals for the Second Circuit have held that in the initial phase of criminal proceedings, the need for expeditious assumption of judicial control following a defendant’s arrest outweighs the need to minimize risk of error through adversary procedures. (Gerstein v Pugh,
Gerstein v Pugh (supra at 122, n 23) held that while a judicial probable cause determination was required to be made promptly following a defendant’s arrest, the probable cause hearing required by the Fourth Amendment need not be an adversary one, in part, because such hearings would "exacerbate the problem of pretrial delay.” In Williams v Ward, (supra), the Second Circuit ruled that pretrial detention of defendants of up to 72 hours without any intermediate probable cause hearing was constitutionally permissible under the Fourth and Fourteenth Amendments in light of the totality of processes afforded a defendant at arraignment in the New York City Criminal Court. These processes included a determination of probable causе, a determination of bail or recognizance and an opportunity for a final disposition, all with the assistance of counsel. The court concluded that the introduction of an earlier intermediate probable cause hearing in addition to the existing procedures would unduly burden the State’s ability to expedite arraignments for all defendants, and would be detrimental to defendants as a class. (Williams v Ward, 845 F2d, supra, at 386-389.)
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. (Barry v Barchi,
The fact that defendant will ultimately have a full trial of the underlying charges against him "does not obviate the prompt hearing requirement” (People v Derisi,
Schall v Martin (supra) also supports this court’s, conclusion. In Schall, the United States Supreme Court held that a New York Family Court procedure which permitted pretrial detention of juvenile offenders on the basis of a minimal initial detention hearing strikingly similar to the procedure for determining bail or recognizance in New York criminal cases, and which was followed by a prompt adversary evidentiary hearing, satisfied due process requirements.
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 recоrd. (Finetti v Harris, 609 F2d 594 [2d Cir 1979] [State court’s bail decision not per se arbitrary or unconstitutional where court did not state reasons on the record, but record showed rational basis for denial of bail].)
(b) Inadequacy of Standard
According to defendant, the absence of a standard or of criteria for the issuance of a temporary order of protection makes the application of CPL 530.12 (1) and (1) (a) intrinsi
The absence of criteria or factors which the court must consider in making its determination was held not to impair the constitutionality of the statutes at issue in United States v Salerno (supra), Schall v Martin (supra) and People ex rel. Wayburn v Schupf (supra). However, articulated statutory criteria enhance "the responsible exercise of * * * discretion”. (People v Beige,
DISMISSAL OF CRIMINAL CONTEMPT CHARGES
As noted earlier, defendant here has also been charged with criminal contempt in the second degree (Penal Law § 215.50 [3]). The charge of criminal contempt in the second degree (Penal Law § 215.50 [3]), added by the People’s "Superseding Amendment” to the information, is premised on defendant’s violation of the temporary order of protection issued at his arraignment on June 24, 1988. According to the People, the provision of the TOP violated by the defendant is paragraph (c), which requires him to "abstain from offensive conduct against Barbara Forman.”
Violation of this provision of the temporary order of protection cannot support a charge of criminal contempt. As a rule, the order of a court, no matter how erroneous, must be obeyed unless the issuing court lacks jurisdiction or the order is void on its face. (Ketchum v Edwards,
Although these precedents were established with respect to judicial contempt (Judiciary Law § 750 [A]), and not with respect to penal contempt (Penal Law § 215.50 [3]), or its predecessor (Penal Law former § 600 [4]), I find that they apply with equal force to penal contempt. Both sections punish disobedience to a court’s lawful mandate. The rationale for requiring a clear and definite order applies equally to contempt under both statutes. Since punishment for contempt for violation of an order jeopardizes a contemnor’s liberty and property, as a matter of fundamental fairnеss such punishment should not be imposed unless the person affected had notice of what the order proscribes or requires. (Matter of Carlson v Podeyn,
The elements of the two forms of contempt are essentially the same, despite the procedural differences which exist between judicial contempt and penal contempt proceedings. (See, Donnino, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law § 215.50, at 577-578; People v Colombo,
The court concludes that a prosecution for criminal contempt under the Penal Law is subject to the same requirement of clarity and precision as a cоntempt proceeding under the Judiciary Law. When measured against that standard, the portion of the temporary order of protection directing defendant Forman to "refrain from offensive conduct” must be held not subject to enforcement or sanction pursuant to Penal Law § 215.50 (3).
When the Legislature promulgated CPL 530.12 (1) (a), it was intended that the new section be read together with the existing law governing the enforcement of judicial orders. "A statute must be read in connection with the common law
Accordingly, defendant Milton Forman cannot be prosecuted for criminal contempt in the second degree (Penal Law § 215.50 [3]) for alleged violation of paragraph (b) of the temporary order of protection of June 24, 1988, and that count must be dismissed. The dismissal is without prejudice to the filing of charges of aggravated harassment in the second degree (Penal Law § 240.30.)
Notes
. At the hearing the court found that the People had actually supported the continuation of the TOP excluding defendant from his home by a preponderance of the evidence. However, the court does not determine in this case whether a finding of a danger of intimidation or injury to complainant need only have reasonable factual support in the record, as in the case of other determinations relating to bail or recognizance (People ex rel. Klein v Krueger,
. In Bellamy v Judges & Justices (
. Despite these improvements, some of the new statutory language is extremely confusing. The first sentence of the new CPL 530.12 (1) (a) permits the court to order a defendant "to stay away from the hоme, school, business or place of employment of the family or household member or of any designated witness, provided that the court shall make a determination, and shall state such determination in a written decision or on the record, whether to impose a condition pursuant to this paragraph, provided further, however, that failure to make such a determination shall not affect the validity of such temporary order of protection.” As pointed out by Peter Preiser in the Supplemental Commentaries to this amendment (McKinney’s Cons Laws of NY, Book 11A, CPL 530.12, 1989 Pocket Part, at 7), the purpose of the amendment was to encourage the use of orders of exclusion, but the language of the section "lends itself to an interpretation that is just the opposite of the one intended.” It is hoped that another clarifying amendment will soon be enacted by the Legislature.