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Court Rules on Defendant’s Violation of Order for Protection and Child Abuse

A New York Criminal Lawyer said in two related child protective proceedings pursuant to Family Court Act article 10, the father appeals (1) from an amended order of disposition of the Family Court, Nassau County, dated July 17, 2007, which, upon an order of the same court dated May 9, 2007, granting the motion of the Nassau County Department of Social Services for summary judgment on the issues of whether the father abused the child NP and derivatively neglected the child AP, and after a dispositional hearing, in effect, adjudicated that the father abused NP. and derivatively neglected AP, and directed him to comply with the terms and conditions of an order of protection dated July 17, 2007, and (2) from an order of protection of the same court also dated July 17, 2007, which directed the father to stay away from the two children until July 16, 2008, except for supervised visitation with the child AP, and which further directed that he refrain from communication with the two children until July 16, 2008, except for therapeutic contact as approved by the Nassau County Department of Social Services.

In March 2006 the Nassau County Department of Social Services (hereinafter DSS) filed two petitions pursuant to Family Court Act article 10, alleging, among other things, that the father sexually abused and/or severely sexually abused the child NP. Each petition alleged that, between 1999 and 2005, the father engaged in oral sodomy and intercourse with NP. The petitions alleged that there were, in total, about 20 such acts. In November 2006 the father was convicted in the County Court, Nassau County, upon his plea of guilty, of rape in the first degree (Penal Law § 130.35), criminal sexual act in the first degree (two counts) (Penal Law § 130.50), and incest (Penal Law § 255.25), for acts he committed against NP. As part of its disposition, the County Court entered an order of protection effective until March 2, 2024. The County Court Judge stated, on the record, “I am relinquishing ultimate jurisdiction of how long this order is to stay in full force and effect to a family court judge who will have better input, in that, there will be a law guardian representing the child’s interest at that point.”

A New York Criminal Lawyer said after the convictions, DSS moved for summary judgment on the Family Court Act article 10 petitions based upon the criminal convictions and the doctrine of collateral estoppel. The Family Court granted the motion, finding that the father sexually abused NP and derivatively neglected AP. In July 2007, the Family Court held a dispositional hearing, at which the father argued that the Family Court had jurisdiction to amend the County Court’s order of protection to permit some contact between NP and him. The Family Court rejected the father’s argument, and issued a one-year order of protection, which expired on July 18, 2008, and an amended order of disposition directing, among other things, that the father comply with the Family Court order of protection.

A New York City Criminal Lawyer said the Family Court properly granted the motion of DSS for summary judgment on the issue of the father’s abuse and derivative neglect since DSS met its prima facie burden of showing that the doctrine of collateral estoppel is applicable. A criminal conviction may be given collateral estoppel effect in a Family Court proceeding where (1) the identical issue has been resolved, and (2) the defendant in the criminal action had a full and fair opportunity to litigate the issue of his or her criminal conduct. The father’s plea of guilty to rape in the first degree, criminal sexual act in the first degree (two counts), and incest constituted convictions. These convictions were for sexual crimes which were based upon the same acts constituting sexual abuse as set forth in Family Court article 10. Furthermore, the father’s plea to the sexual crimes as to NP established his derivative neglect of AP because the acts underlying the sexual crimes demonstrated a fundamental defect in the father’s understanding of his parental duties. The father failed to raise a triable issue of fact as to the identity of the issues in the County Court proceeding and the Family Court proceeding or as to his opportunity to fully litigate the issues in the criminal court proceeding.

Insofar as the Family Court’s order of protection expired on July 16, 2008, the father’s appeal from the order of protection and from so much of the amended order of disposition as directed him to comply with that order of protection must be dismissed as academic.

A Manhattan Criminal Lawyer said accordingly, it is ordered that the appeal from the order of protection dated July 17, 2007, and the appeal from so much of the amended order of disposition dated July 17, 2007, as directed the father to comply with that order of protection, are dismissed as academic, without costs or disbursements, as the order of protection expired by its own terms on July 16, 2008; and it is further, ordered that the amended order of disposition dated July 17, 2007, is affirmed insofar as reviewed, without costs or disbursements.

If you know someone who is a victim of sexual abuse, rape and similar crimes, contact Stephen Bilkis and Associates to guide you on what legal action to pursue. Our Nassau County Criminal Lawyers work together with Nassau County Order of Protection Attorneys to advice and guide you during the entire criminal proceedings, just drop by our offices in New York for free legal consultation.

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