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Criteria for Imposing Order of Protection for Longer than Two Years Based on Family Offense Involving Aggravating Circumstance (Use of Weapon Here) Explained

The Second Department, in a family offense proceeding involving the use of a weapon, explained the criteria for issuing an order of protection for a period longer than two years:

To issue an order of protection with a duration exceeding two years on the ground of aggravating circumstances, the Family Court must set forth “on the record and upon the order of protection” a finding of such aggravating circumstances as defined in Family Court Act § 827(a)(vii) (Family Ct Act § 842). The statutory definition of “aggravating circumstances” includes five distinct situations, set forth in the disjunctive: (1) “physical injury or serious physical injury to the petitioner caused by the respondent,” (2) “the use of a dangerous instrument against the petitioner by the respondent,” (3) “a history of repeated violations of prior orders of protection by the respondent,” (4) “prior convictions for crimes against the petitioner by the respondent,” “or” (5) “the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and occurrences which to the court constitute an immediate and ongoing danger to the petitioner, or any member of the petitioner’s family or household” (Family Ct Act § 827[a][vii]…),

A finding of aggravating circumstances under the fifth situation set forth in Family Ct Act § 827(a)(vii) must be supported by a finding of “an immediate and ongoing danger to the petitioner, or any member of the petitioner’s family or household” (Family Ct Act § 827[a][vii]; …). To the extent that certain language in Matter of Clarke-Golding v Golding (101 AD3d at 1118) might suggest that the “immediate and ongoing danger” requirement pertains to the other four situations enumerated in Family Court Act § 827(a)(vii) as well, it is not to be construed as such. Where the aggravating circumstances involve the use of a dangerous instrument (cf. Penal Law § 10.00[13]…), the “immediate and ongoing danger” requirement does not apply (Family Ct Act § 827[a][vii]… .  Matter of Kondor v Kondor, 2013 NY slip Op 05747, 2nd Dept 8-28-13

 

 

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Family Offense of Disorderly Conduct Established

The Second Department determined the family offense of disorderly conduct had been established by a fair preponderance of the evidence:

…[T]he petitioner established, by a fair preponderance of the evidence …, that the appellant, who …made verbal threats to the petitioner in the hallway of the Family Court building and physically blocked the petitioner’s car from exiting the parking lot of the Family Court, engaged in threatening behavior that recklessly created a risk of causing public inconvenience, annoyance, or alarm (see Penal Law § 240.20…… . Matter of Banks v Opoku, 2013 NY slip Op 05568, 2nd Dept 8-7-13

 

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Family Offense of Disorderly Conduct Not Proven—No Proof of Public Inconvenience, Annoyance, or Alarm

In a full-fledged opinion by Justice Skelos, the Second Department determined the wife’s allegations against her husband did not demonstrate the family offense of disorderly conduct.  The wife alleged the husband tried to push her down stairs, twisted her arm and pushed her against a wall. Under the Penal Law, disorderly conduct requires an intent to cause or the reckless creation of a risk of causing public inconvenience, annoyance or alarm.  However, Family Court Act section 812 provides: “For purposes of this article, disorderly conduct included disorderly conduct not in a public place.”  The Second Department determined that, even in the context of a family offense proceeding, the “public inconvenience, annoyance or alarm” element must be proven:

We … hold that, even where the conduct at issue is alleged to have occurred in a private residence, in order for a petitioner to meet his or her burden of establishing the family offense of disorderly conduct, there must be a prima facie showing that the conduct was either intended to cause, or recklessly created a risk of causing, public inconvenience, annoyance, or alarm. The intent to cause, or recklessness in causing, public harm, is the mens rea of the offense of disorderly conduct … . The plain language of the subject provision of Family Court Act § 812, in contrast, provides only that the conduct need not occur in a public place (see Family Ct Act § 812). The plain language of Family Court Act § 812 therefore pertains only to the actus reus of the offense—specifically, the place where it is committed—and does not speak to the mens rea of the offense. Indeed, since Family Court Act § 812 does not specify an alternative culpable mental state, if the mens rea provided for in the Penal Law were not applicable in family offense proceedings, it is unclear what the mens rea of this family offense would be. * * *

One can certainly contemplate conduct occurring in a private residence that is intended to cause, or evinces a reckless disregard of causing, public harm. Such conduct might include, for example, a loud fight, or a loud argument with disturbing content, occurring in an apartment building late at night, or under other circumstances where the public may reasonably be expected to hear or see the altercation. As the Court of Appeals has observed, “the risk of public disorder does not have to be realized,” in order to infer that an individual intended to cause, or recklessly disregarded the risk of causing, such a threat… . Matter of  Cassie v Cassie, 2013 NY Slip Op 05446, 2nd Dept 7-24-13

 

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Family Offense Must Be Established by Fair Preponderance

The Second Department determined the family offense of attempted assault in the second degree had not been “established by a fair preponderance of the evidence” in Family Court:

A family offense must be established by a fair preponderance of the evidence (see Family Court Act § 832;…). “The determination of whether a family offense was committed is a factual issue to be resolved by the Family Court, and the credibility determinations of that court, which has the advantage of seeing and hearing the witnesses, are entitled to considerable deference on appeal” … .Here, a fair preponderance of the credible evidence did not support the Family Court’s determination that the appellant committed the family offense of attempted assault in the second degree (see Family Court Act §§ 812[1], 832; Penal Law §§ 110.00, 120.05[1]… .  Matter of Hubbard v Ponce DeLeon, 2013 NY slip Op 05211, 2nd Dept 7-10-13

 

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Prima Facie Case of Family Offenses Not Established (Forcible Touching and Sexual Abuse)

The Second Department found that Family Court properly determined mother failed to establish a prima facie case of the family offense of forcible touching and sexual abuse and properly ruled hearsay inadmissible:

The mother presented no direct evidence that the father touched the child “for the purpose of degrading or abusing” the child or “gratifying [his] sexual desire” (Penal Law § 130.52; see Penal Law §§ 130.00[3]; 130.55;…. Furthermore, although, in some instances, the element of intent may be inferred from the nature of the acts committed and the circumstances in which they occurred…, an intent to gratify sexual desire on the part of the father cannot be inferred from the totality of the circumstances here…. * * *

Contrary to the mother’s contention, the Family Court properly refused to permit her to admit hearsay testimony pursuant to Family Court Act § 1046(a)(vi). That section, by its own terms, is limited to a “hearing under . . . article [10] and article ten-A” of the Family Court Act (Family Ct Act § 1046[a]), and although the hearsay exception contained in Family Court Act § 1046(a)(vi) has been applied in the context of custody proceedings commenced pursuant to Family Ct Act article 6 where the basis of the custody proceeding is founded on neglect or abuse such that the issues are “inextricably interwoven”…, the Family Court properly refused to apply Family Court Act § 1046(a)(vi) in this case…. Matter of Khan-Soleil v Rashad, 2014 NY Slip Op 05074, 2nd Dept 7-3-13

 

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Disorderly Conduct as a Family Offense Needn’t Occur in a Public Place

The Fourth Department determined that “disorderly conduct” as a family offense does not require the conduct to take place in public:

Contrary to respondent’s contention, petitioner met her burden of establishing by a preponderance of the evidence that respondent committed the family offense of disorderly conduct … . Although respondent’s conduct did not take place in public, section 812 (1) specifically states that, “[f]or purposes of this article, ‘disorderly conduct’ includes disorderly conduct not in a public place.” In addition, disorderly conduct may be committed when a person “recklessly creat[es] a risk” of annoyance or alarm through violent or threatening behavior. We thus reject respondent’s contention that the statute “requires more than a ‘risk.’ ”  Matter of McLaughlin v McLaughlin, 330, CAF 12-01556, 4th Dept. 3-22-13

 

 

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