Petitioner is charged with a criminal family offense (a misdemeanor and a violation) involving his two preteen sons. At the arraignment, the judge issued a temporary stay away order of protection (TOP), pursuant to Criminal Procedure Law §530.12. The TOP had an expiration date. There is no indication in the record that either the Judge directed a TOP hearing or that one was requested by petitioner or his counsel at that time.
A Kings County Family lawyer said that on that return date, petitioner and his counsel appeared and while, apparently, certain conversations were held off-the-record, including the presentment of a tape recording of the event to the Assistant District Attorney the record is devoid of any request by petitioner’s counsel for a TOP hearing before the assigned judge. In fact, the transcript reveals that upon the presentment of an amended order of protection by the Assistant District Attorney, an opportunity to spread the matter on the record was offered to petitioner’s counsel but, aside from a general objection, the record fails to disclose that a request for a TOP hearing was formally made.
Thereafter, as set forth in the civil minutes of the County Clerk, a notice of petition and petition of an Article 78 proceeding was filed therewith. No Request For Judicial Intervention (RJI) was filed for that special proceeding. Subsequently, an application for the instant Order to Show Cause was argued before the judge. A transcript of that argument is before the Court Justice Pines declined to stay the temporary order of protection and struck that provision from the Order to Show Cause. That order was accompanied by an RJI that was specific to the Order to Show Cause.
It appears from the record, that the Article 78 petition, with the separate notice of petition, was never initialized for submission to the Supreme Court. What is before the Court is just the undated Order to Show Cause signed by the Justice and various motion papers in opposition to that request and in reply thereto.
In essence, petitioner seeks to set aside the order of protection signed by the Judge, and seeks a declaration that CPL §530.12 is unconstitutional. Petitioner argues that he is entitled to a full evidentiary hearing, at his request, before a TOP is issued or continued. To begin, petitioner cannot seek in the motion before the Court, as a provisional remedy, the entire relief that he demands in the Article 78 proceeding. Provisional remedies are limited to those set forth in CPLR 6001, which are not applicable to the instant matter. While a stay in an Article 78 proceeding may be sought pursuant to CPLR 7805, this Court declines to do on its own initiative.
With regard to the relief requested in the Order to Show Cause “[f]or an order granting in its entirety the Petition filed pursuant to CPLR Article 78, together with an order declaring CPL 530 unconstitutional,” upon review of the petition annexed as an exhibit to respondents’ papers and the papers submitted by all parties that address that issue, the Court finds that petitioner’s claims must be dismissed.
The transcript of the argument highlights petitioner’s claim that “first of all, the challenge that we’re bringing is an Article 78 challenge.” As noted by the respondents, this Article 78 proceeding was filed more than four months from the date of the challenges temporary order of protection. There is little doubt that the TOP became final and binding on the petitioner at that time. Such, renders the proceeding time-barred.
As for the request to declare CPL §530.12 unconstitutional, there is no showing of compliance with the procedures set forth in Executive Law §71 and CPLR §1012(b). Moreover, aside from respondents’ claim that the validity of a legislative act is not subject to review by an Article 78 proceeding, petitioner has failed to meet his heavy burden of proving the unconstitutionality of the statute beyond a reasonable doubt. As recognized, legislative enactments are imbued with a strong presumption of constitutionality. [absence of a clear showing of unconstitutionality, trial courts should presume the validity of statutes.
Petitioner claims, in paragraphs EIGHTEENTH and NINETEENTH of the petition, that he was denied an adequate remedy, that is, a meaningful opportunity to be heard. However, the transcript of the proceedings fails to disclose that infirmity.
As set forth in the statute at issue, a TOP is issued in a family offense matter as a condition of recognizance or bail. That statute provides that the Court may issue a TOP upon the filing of a facially sufficient accusatory instrument and for good cause. Factual challenges are issues for trial. Here, the record reveals that the two accusatory instruments and the sworn statement of a witness provided sufficient good cause for the issuance of the TOP. The record further discloses that counsel was given an opportunity to argue to the contrary.
The aim of a TOP, protecting the complaining witness or family member, is of predominant importance. As noted in a case, “until there is a determination of guilt or innocence the court is responsible not only to seek us ice by safeguarding the rights of the defendant; it must also insure that the complainant is secure and that societal peace is preserved during the pendency of the action.” Petitioner’s rights as a noncustodial parent are fundamental and are not to be ignored. However, that does not end the inquiry. “While these private interests are deserving of constitutional protection the state’s extraordinary interest in protecting victims of domestic violence from actual or threatened injury and children from the effects of exposure to domestic violence justifies the use of immediate measures to stop violence”.
Petitioner’s claim that he is entitled to a full evidentiary hearing is unsupported by law or by due process considerations. While an evidentiary hearing may be appropriate, the need for such a hearing and the form thereof is best left to the discretion of the arraignment judge.
As long as a meaningful opportunity to be heard is afforded, due process is satisfied. Such does not equate with a full evidentiary hearing, particularly in light of the strong state interest to protect victims of domestic violence. As noted in another case, “there is no constitutional or statutory right to confront an a accuser prior to trial.” All that is required is that the judge must ascertain sufficient facts, which are discernable from the record, as to whether or not a TOP should be issued or continued. Simply put, is there a continuing danger of injury or intimidation to the complainant.
Moreover, to ameliorate any perceived hardships, the statute expressly provides for a motion to vacate or modify a temporary order of protection, on notice to the non-moving party. The record reveals that petitioner has sought such relief from the District Court by Order to Show Cause. Additionally, the statute provides for modification of the TOP to lessen the impact on the family relationship by providing for visitation with children by one who is subject to a TOP. Such procedures sufficiently protect petitioner’s right to due process and leads to the conclusion that the State Legislature intentionally declined to provide for an evidentiary hearing before a TOP is issued or continued under CPL §530.12 (compare CPL §530.12[1 l][a] [hearing provided if bail or recognizance is revoked for failure to obey the terms and conditions of the order]).
Therefore, this Court declines petitioner’s invitation to declare CPL §530.12 unconstitutional, since he failed to establish same beyond a reasonable doubt.
For the reasons set forth above, the Court declines to award relief in the nature of prohibition. Finally, the Court finds the additional request to view the petition in the context of a writ of Habeas Corpus, pursuant to CPLR §7002, to be without merit.
Accordingly, the relief requested in the Order to Show Cause is denied, the motion to dismiss is granted and the proceeding is dismissed. This constitutes the decision, order and short form judgment of the Court.
An exchange of vows during the marriage to love one another was breached when there is constant violence committed by a husband to his wife. One of our advocacies here in Stephen Bilkis and Associates is to stop this spousal violence. Through our Kings County Domestic Violence lawyers, we will advise the victim spouse of her rights under the law in order to undertake the necessary remedies to be availed. Likewise, we have our Kings County Order of Protection lawyers who will ask the court for the issuance of this Order in order to protect the victim spouse from any harm. Contact us now.