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Defendant T’s motion to dismiss indictment 589/97 is granted only as to counts six, seven, and eleven.

This is a proceeding involving two unrelated cases wherein the issue is whether, under constitutional and state statutory double jeopardy principles, a criminal prosecution in the Supreme Court is precluded by a prior Family Court disposition imposed for a violation of an order of protection based on the same underlying conduct.

In People v. Arnold, A’s then wife commenced a Family Court proceeding under Article 8 of the Family Court Act. It is her allegation that the defendant argued with her, cursed at her and destroyed her property on 2 April 1995. She also alleged that on prior occasions A had assaulted and threatened her.

A’s wife requested and received an order of protection from the Family Court directing A not to assault, menace, harass, recklessly endanger or engage in disorderly conduct towards her.

Thereafter, A’s wife brought a second petition before the Family Court alleging that A violated the temporary order of protection by forcing his way into his wife’s home and by menacing her with a knife and by calling her on the phone and by continually threatening to kill her.

After a fact finding hearing, the Family Court found that petitioner met her “burden of requisite quantum proof.” After a dispositional hearing pursuant to § 841 of the Family Court Act, the Family Court placed A on one year probation and required him to attend a batterer’s program. The Family Court, finding the presence of aggravating circumstances under Family Court Act § 827(a)(vii) issued a final three year order of protection.

While the Family Court case was pending, A had been arrested and charged with various crimes arising out of incidents alleged. The defendant was indicted for Burglary in the First and Second Degrees, Assault in the Second Degree, Attempted Assault in the Second Degree, Criminal Possession of a Weapon in the Fourth Degree and Criminal Contempt in the Second Degree, all alleged to have occurred on 15 April 1995; Burglary in the Second Degree, Criminal Contempt in the First and Second Degrees, and Criminal Mischief in the Third Degree, all alleged to have occurred on 25 April 1995; and Burglary in the Second Degree, Criminal Contempt in the Second Degree and Aggravated Harassment in the Second Degree, all alleged to have occurred on 26 April 1995.

In People v. Triuck, defendant T’s wife obtained a final order of protection in the Family Court after a finding that T menaced his wife with a knife. The final order of protection was for a period of three years and directed that T refrain from acts constituting “assault, harassment, menacing, reckless endangerment, disorderly conduct, intimidation or any other offense under the Penal Law” and also provided that he stay away from his wife, her home, and their child.
Thereafter, T’s wife brought a petition alleging that T violated the order of protection on various dates. After a fact finding hearing, the Family Court found beyond a reasonable doubt that T willfully violated final order of protection. The court found that T willfully violated the final order of protection by repeatedly pushing his wife, and by forcibly taking custody of the parties’ minor child.

The Family Court imposed, as its disposition, consecutive sentences of incarceration for each violation: 90 days each for the violations occurring on 22 October 1996 and 23 October 1996; and 180 days for the 26 October 1996 violation.

The instant indictment was filed against T charging him with Aggravated Criminal Contempt, Criminal Contempt in the First Degree, Endangering the Welfare of a Child, Criminal Mischief in the Fourth Degree and Menacing in the Third Degree, Criminal Contempt in the First Degree (three counts), Endangering the Welfare of a Child and Custodial Interference in the Second Degree, and Menacing in the Third Degree.

In two separate motions, defendants A and T contend that their Supreme Court prosecutions are barred by constitutional and state statutory double jeopardy protection. It is their contention that the Family Court proceeding against each of them was a prosecution for the same conduct or offense as charged in the respective indictment against each of them which is now before this Court. Moreover, each contends that the disposition or sentence imposed by the Family Court constituted criminal punishment.

Family Court Act §§ 115[e], 812[1] and CPL 100.07, 530.11 both provide the criminal court and family court with concurrent jurisdiction for certain enumerated criminal offenses when committed by one family member against another.

Although the Family Court proceeding for certain criminal conduct among family members is deemed to be a civil proceeding, the Family Court may, with the consent of the petitioner, transfer a § 812 proceeding to the criminal court in the interest of justice. Moreover, the Family Court upon its own motion or upon motion of the petitioner transfer a proceeding to the criminal court alleging that the respondent has failed to obey a lawful order of the court in accordance with Family Court Act §§ 846[b][ii][C]; 813[1].

In North Carolina v Pearce, it was ruled that the constitutional protection against former jeopardy protects individuals against successive prosecutions for the same offense after an acquittal or conviction. Multiple punishments for the same offense are also proscribed. Helvering v Mitchell ruled that double jeopardy protection may be extended to proceedings that are not nominally criminal. United States v Harper, Department of Revenue of Montana v Kurth Ranch, Cordero v Lalor, and United States v Ursery settled that a sanction in a “civil” or non-criminal proceeding may constitute punishment for double jeopardy purposes. Moreover, the Court of Appeals has held that an Article 10 proceeding under the Family Court Act to determine whether a child has been neglected or abused does not bar subsequent criminal prosecution for the same conduct under double jeopardy principles.

A child protective proceeding can take place in the Family Court while a criminal prosecution goes forward arising out of the same conduct because of the different purposes of these courts, different standards of proof and dispositional alternatives. There is no double jeopardy bar to a criminal prosecution after an Article 10 Family Court proceeding. Significantly, a neglect or abuse finding can result in the possibility of the child’s placement outside the familial home, not a penal sanction against the defendant. The desired end of the article 10 proceeding is to ensure the expeditious protection of the child’s welfare, not to secure a conviction against the defendant as held in People v Roselle.

In the case at bar, defendants A and T were subject to a proceeding under Article 8 of the Family Court Act. Article 8 is a civil proceeding for the purposes of attempting to stop the violence, end the family disruption and obtain protection. The Court of Appeals has held, however, that consecutive sentences of imprisonment are permitted for multiple violations of an order of protection due to the punitive nature of Family Court Act § 846-a as held in Walker v Walker. Regardless, the purpose of Article 8 is designed to provide reasonable means and methods of protection and enforcement for victims of domestic violence.

The court notes that a disposition under § 841 of the Family Court Act for a founded violation of an order of protection is punitive and not remedial and thus is for criminal contempt and not civil contempt.

The court must now consider whether the Supreme Court prosecution must be dismissed as violative of the prohibition against double jeopardy where the Family Court has previously found that each defendant had violated the respective Family Court order of protection and punished each defendant for such violation.

The Supreme Court has recently reaffirmed the Blockburger or “same elements test” for determining whether proceedings against a criminal defendant violate the Double Jeopardy clause. The Supreme Court held that each of the offenses created requires proof of a different element. The applicable rule to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not based on the rulings in Blockburger v United States.

In both the multiple punishment and multiple prosecution contexts, the Supreme Court has held that where the two offenses for which the defendant is punished or tried cannot survive the same elements test, the double jeopardy bar applies. The Supreme Court explicitly rejected the same conduct test.

This Court chooses to apply comparison of two elements- a court order made known to the defendant and willful violation of that order as ruled in Commonwealth v. Yerby.

Applying the same elements test to the first case, it is clear that the Court need consider only the crimes alleged to have occurred on 15 April 1995, stemming from the same incident that was the basis of the Family Court proceeding finding a violation of the protective order.
The crime of Criminal Contempt in the Second Degree (count 5) is dismissed on Double Jeopardy grounds as the previous proceeding in the Family Court for contempt was criminal and based on the same two elements–knowledge of an existing court order and a willful violation of such order. Although the Family Court’s order was minute in finding that the defendant violated the order of protection, the allegations contained in the petition alleging the violation did not include any allegations of assault or burglary as a basis for violating the order of protection. The violation of the protective order was based on an allegation that A forced his way into his wife’s home and menaced her with a knife in violation of the order of protection. All the crimes that A is alleged to have committed on 15 April 1995 are not barred by constitutional double jeopardy principles. The crime of Criminal Contempt in the Second Degree (count 5) is hereby dismissed based on the same elements test.

Similarly in applying the Blockburger test the second case, the Court need only consider the counts alleged to have occurred on 22 October and 23 October 1996, arising from the same incidents that were the basis of the Family Court’s finding that T violated the order of protection.

The Criminal Contempt in the First Degree counts of 22 October 1996 all allege in pertinent part that the defendant in violation of an order of protection that the defendant has actual knowledge by virtue of being in Court when such order was issued or by being served with such order, the defendant committed certain acts. The defendant having been found to be in violation of the Family Court’s order of protection cannot be tried for the charges of Criminal Contempt in the First Degree occurring on 22 October 1996. Counts six, seven and eleven of the T indictment are dismissed.

Moreover, Criminal Contempt in the Second Degree is a lesser included offense of Criminal Contempt in the First Degree. Criminal Contempt in the Second Degree under the Penal Law contains the same elements as the Family Court Act counterpart. The Supreme Court, relying on Blockburger, has held that a subsequent prosecution for a greater offense after a conviction for a lesser included offense violated the Double Jeopardy Clause because the two are the same statutory offenses. With regard to the counts charging T with Custodial Interference in the Second Degree, a trial for this charge would not violate his “double jeopardy rights”. With regard to the menacing charge, the double jeopardy clause would not be violated by trying T.
Defendant T further contends that all charges contained in the indictment should be dismissed as all were joinable in the Family Court proceeding under the Criminal Procedure Law as being based on the same criminal transaction pursuant to CPL 40.40[1] and [2]; 200.10, and 40.10. CPL 40.40[1] provides that if two or more offenses are joinable in a single “accusatory instrument” under CPL 200.20[2], and the prosecution fails to join all those offenses, then a second trial is barred. CPL 1.20[1] defines the term “accusatory instrument”. A Family Court petition under § 846 is not an “accusatory instrument” as defined by CPL 1.20. Thus, there existed no “accusatory instrument” in which the counts of this indictment could have been joined.

Contrary to defendant T’s contention, a defendant who testifies to the Grand Jury is not entitled to a Sandoval hearing on his prior misconduct to determine what other offenses may be used on cross-examination. Any prior immoral acts by the defendant may be utilized on cross-examination for impeachment purposes in order to aid in the Grand Jury’s determination of the defendant’s credibility.

Accordingly, defendant A’s motion to dismiss indictment 5167/95 is granted only as to count five. Defendant T’s motion to dismiss indictment 589/97 is granted only as to counts six, seven, and eleven.

Kings County Domestic Violence Lawyers and Kings County Family Lawyers may be contacted through Stephen Bilkis & Associates. We work hand in hand to protect the sanctity of the family. If you are faced with the same issues like the ones mentioned in the case above, please do not hesitate to call our toll free number or visit our place of business.

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