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Appeal Should Not Have Been Dismissed as Moot Because the Underlying Order of Protection Had Expired—There Are Significant Negative Consequences of the Issuance of an Order of Protection Which May Affect Appellant in the Future

The Court of Appeals, in a full-fledged opinion by Judge Abdus-Salaam, determined the appeal by respondent, who had been found to have committed a Family Offense and against whom an order of protection had been issued, should not have been dismissed as moot because the order of protection had expired.  The Court of Appeals explained that the issuance of the order of protection could have significant negative future consequences for the respondent:

“[i]n general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” …. The ability of an appellate decision to directly and immediately impact the parties’ rights and interests is among the most important aspects of the mootness analysis, for otherwise the analysis might turn on inchoate or speculative matters, making mootness an unwieldy doctrine of a thousand “what ifs.” On the other hand, even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal … .

In this case, the expiration of the order of protection does not moot the appeal because the order still imposes significant enduring consequences upon respondent, who may receive relief from those consequences upon a favorable appellate decision. Because the order of protection on its face strongly suggests that respondent committed a family offense, the court in a future criminal case or Family Court proceeding would likely rely on the order to enhance a sentence or adverse civil adjudication against respondent. ** * *In the face of the substantial probability that the order of protection will prompt severely deleterious future legal rulings against respondent, an appellate decision in his favor will directly vindicate his interest in avoiding that consequence of the order.

The order of protection has other potential legal consequences that render it susceptible to appellate review. For example, in a future legal matter, an opposing party might be permitted to use the order of protection to impeach respondent’s credibility …. . Furthermore, since the order of protection remains in a police computer database, albeit not in an active file (see Executive Law §§ 221-a [1]; 221-a [6]; see also 9 NYCRR 486.2 [g]), respondent may face additional law enforcement scrutiny and an increased likelihood of arrest in certain encounters with the police (see 9 NYCRR 486.3 [n] [declaring information obtained from the database to be relevant to the decision to arrest an individual]).[FN2]

Beyond its legal consequences, the order of protection places a severe stigma on respondent, and he can escape that stigma by prevailing on appeal … . Matter of Veronica P v Radcliff A, 2015 NY Slip Op 01300, CtApp 2-13-15

 

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