Articles Posted in Domestic Violence

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A New York Criminal Lawyer said that, this is a motion by the defendant, to dismiss the indictment for want of prosecution, pursuant to Section 668 of the Code of Criminal Procedure. The record indicates that the defendant was indicted in Nassau County, New York, on the 17th day of February, 1959 for the crimes of Robbery, in the First Degree; Grand Larceny, First Degree (two (2) counts); Grand Larceny, in the Second Degree; and Assault, in the Second Degree; all of which acts were allegedly committed by the defendant in concert with three (3) others on or about December 31st, 1958.

A Nassau Criminal Lawyer said that, the defendant’s affidavit in support of this motion indicates that, on or about January 2nd, 1959, he was arrested in Pittsboro, North Carolina, on a charge of Robbery. In the Spring of 1959, the defendant, convicted of Robbery in North Carolina, after which a prison term of not more than twelve (12) years, but not less than nine (9) years was imposed upon him. The defendant, remained in Caledonia Prison Farm, Halifax, North Carolina, until extradited to Nassau County in the latter part of March, 1965 and he was arraigned upon the instant indictment on April 1st, 1965. Nassau County authorities lodged a detainer warrant for the arrest of the defendant on the instant charges at the Caledonia Prison Farm in January, 1959, but did not attempt to return Singleton for trial until March, 1965-a period of more than six (6) years. The defendant alleges that during his incarceration in North Carolina, he was at all times able and willing to stand trial and that he did not waive his right to a speedy trial by any action on his part. Moreover, the defendant alleges that he made efforts to be returned to this State for trial. For example, he claims that in either 1962 or 1963, he wrote to former Governor Sanford of North Carolina asking to be returned to New York State for trial. Thereafter, Governor Sanford replied that North Carolina would be willing to release the defendant because of his good prison record, but added that such a step could not be taken without a formal request from the State of New York. Subsequently, the defendant wrote to the Governor of New York State asking to be returned to Nassau County for trial, and he was thereafter informed by the Governor’s Office that the request had been forwarded to the Nassau County District Attorney’s Office.

A New York Criminal Lawyer said the defendant further alleges that he wrote four (4) or five (5) letters to the Nassau County District Attorney’s Office requesting a trial, but he was informed by that office that he would have to wait until his release from prison in North Carolina to be returned for trial because the State of North Carolina was not a signatory to the Agreement on Detainers. On this subject, it might be noted that the defendant has not supported his claims respecting the request he made for a speedy trial by any type of documentation.

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This is a proceeding wherein the defendant is charged with Assault in the Third Degree (PL § 120.00[1]), Harassment in the Second Degree (PL § 240.26[1]), Criminal Possession of a Weapon in the Fourth Degree (PL § 265.01[1]) and Unlawful Possession of an Air Pistol (AC § 10-131[b]).

A New York Criminal Lawyer said that these charges arise out of an incident that allegedly occurred at approximately 2:00 pm on 26 June 2010, inside an apartment on Walton Avenue in the Bronx. At that time, the People allege, defendant grabbed JP by her arm, pushed her against a wall and choked her, causing substantial pain to her arm and neck and a bruise to her arm.

Thereafter, on 29 July 2010, at approximately 11:00 am, Police Officer EC allegedly observed that defendant possessed one black handgun and one air pistol inside of his bedroom closet. Defendant allegedly stated, in sum and substance: “Cops found in closet which I had for protection never it… Just for protection… Bought it from an old high school friend on January 2010… I paid about $800 its [sic] black and there are some bullets maybe 3 or 4 in closet… They were never loaded I never fired it as well.”

Consequently, defendant moves to dismiss the weapons charge and the Administrative Code charge as facially unconstitutional and unconstitutional as applied. He also moves for suppression and preclusion of evidence.

A New York Criminal Lawyer said the court holds that neither PL § 265.01(1) nor AC § 10-131(b) violates the Second Amendment and neither is unconstitutional as applied to defendant.

The defendant relies on the rulings of District of Columbia v Heller and McDonald V City of Chicago. He argues that PL § 265.01(1) is an unconstitutional prohibition of his right to possess a firearm in his home for the purpose of self-defense. He argues that the statute fails the strict scrutiny test because the restrictions on gun ownership are overbroad and the state’s licensing scheme is arbitrary and capricious and it prevents indigent citizens from legally possessing firearms.

Further, a Queens Criminal Lawyer said that he also argues that New York City’s ban on the possession of air pistols and air rifles is unconstitutional, because an air pistol is a firearm that “can be effective” for self-defense in the home and because air pistols could be characterized as “arms” as that term is defined by Second Amendment jurisprudence. In his reply brief, defendant also claims that air pistols were in common use at the time of the Framers and should be permitted by New York City specifically because some people might choose a less-lethal handgun for self-defense in the home. Finally, defendant claims that these statutes are unconstitutional as applied to him.

In response, a Nassau County Criminal Lawyer said the People state that defendant has not overcome his heavy burden of proving the laws’ invalidity beyond a reasonable doubt. They argue that PL §§ 265.01 and 400.00 have already been found constitutional against Second Amendment challenges, and analyze why these decisions are correct and defendant’s arguments are incorrect. They also argue that air pistols are not firearms. Therefore, AC § 10-131(b) is valid when analyzed under either the rational basis or intermediate scrutiny test.

Finally, the Court has permitted the City of New York to file a brief as amicus curiae. The City defends its policies and procedures for obtaining a firearms license. It also argues that its ban on the possession of air pistols is constitutional, both because air pistols are not firearms and because, even if they were, the City’s restrictions on them do no implicate the core Second Amendment right identified by the Supreme Court.

The defendant relies upon the case of State of Columbia v Heller. In this case, the Supreme Court struck down District of Columbia statutes prohibiting the possession of handguns in the home and requiring lawfully-owned firearms to be kept inoperable. Rejecting the argument that the right “to keep and bear arms” was connected with militia service, the Court concluded that the Second Amendment codified an individual right to keep and bear arms for the core purpose of allowing law-abiding citizens to defend themselves, their families and their homes.
Two years later, in McDonald, the Court held that the Second Amendment right to keep and bear arms for self-defense is fully applicable to the states through the Fourteenth Amendment.

Following Heller and McDonald, federal district courts have rejected challenges to the firearms licensing schemes that were adopted in the District of Columbia and Chicago.

Penal Law § 265.01(1) states, in relevant part, that a person is guilty of criminal possession of a weapon in the fourth degree when he possesses any firearm. Exemptions to this rule are listed in PL § 265.20, which provides, in relevant part in subsection (a) (3), that Section 265.01 shall not apply to possession of a pistol or revolver by a person to whom a license therefor has been issued as provided under section 400.00 or 400.01 of this chapter.

Penal Law § 400.00 (2) specifically provides for the issuance of a license for a pistol or revolver, other than an assault weapon or a disguised gun, for a householder to have and possess in his dwelling. The general statutory requirements for a license are that an applicant be 21 years of age or older, of good moral character, who has not been convicted of a crime or serious offense or had a license revoked, who is not disqualified by reason of mental illness or the existence of an order of protection, and concerning whom no good cause exists for the denial of the license.

Therefore, any person to whom a license has been issued may lawfully possess a firearm in his or her home.

People v Perkins ruled that PL §§ 265.01(1) and 400.00 are constitutional and do not run afoul of Heller.

Defendant argues that New York’s licensing requirements violate the Second Amendment because there is no exemption in PL § 265.01(1) for maintaining a firearm in the home for the purpose of self-defense and because, under PL § 400.00, those convicted of felonies or serious offenses cannot obtain licenses.

Defendant’s claim that there is no exemption in the statute for maintaining a firearm in the home for self-defense is simply wrong. Moreover, defendant never applied for a firearms license, as both the People and New York City point out and as defendant himself ultimately concedes, and he has not established that it would have been futile for him to do so. Thus, his arguments challenging New York’s firearms licensing rules are speculative at best, because he cannot show that any of the rules that he singles out would have prevented him from obtaining a firearms license had he actually applied for one.

Defendant’s claim that the availability of a firearms license is under the complete control and virtually unreviewable discretion of the New York City Police Commissioner is wrong. The statute provides an unsuccessful applicant with an administrative appeal process, and that decision can be challenged in court in a CPLR Article 78 proceeding. The discretion of a pistol licensing officer to deny an application is not unfettered, and the officials involved-including the NYPD licensing division-are bound by standards reviewable in a court of law.

Defendant cites no case for his proposition that New York’s firearms licensing scheme is unconstitutional because all applicants, even the indigent, must pay for the extensive background checks that are required before licenses are issued. Nor does he argue that the fees are unrelated to the costs of conducting the background checks. This case is simply unsuited to deciding the question of whether the application fees must be changed in light of Heller and McDonald, because defendant does not claim that the fees prevented him from applying for a license.

Finally, defendant has not demonstrated that the firearms licensing regulations are unconstitutional under the intermediate scrutiny test, which “the majority of courts to have considered this issue” have held “is the most appropriate standard of review to apply to” firearms regulations.

Defendant also argues that New York City’s ban on the possession of air pistols, AC § 10-131(b), violates the Second Amendment. Defendant’s argument overlooks crucial facts. The statutes at issue in both Heller and McDonald, banned possession and registration of firearms, and the Court in Heller emphasized that handguns are an entire class of arms that is overwhelmingly chosen by American society for that lawful purpose of self-defense. In Parker v District of Columbia, banning from the home the most preferred firearm in the nation to keep and use for protection of one’s home and family would fail constitutional muster.

Defendant failed to cite facts from anywhere in the United States outside New York City to establish that American citizens overwhelmingly chose air guns for the core lawful purpose of self-defense rather than for sports and recreation.

Accordingly, the court holds that AC § 10-131(b) does not implicate the Second Amendment right to keep and bear arms. As such, the statute is presumptively valid and need only pass the rational basis test to withstand constitutional scrutiny.

To support his claims that PL § 265.01(1) and AC § 10-131(b) are unconstitutional as applied to him, defendant devotes two short paragraphs to support his claim. His arguments derive exclusively from his claims that the statutes are facially unconstitutional and from the fact that he has no criminal record. The court notes that both statutes give defendant clear notice of what is prohibited-namely, possession of an unlicensed firearm and possession of an air pistol-and explicit standards to the police for applying the statutes as held in People v. Stuart. Defendant has not established why the Penal Law and Administrative Code were unconstitutionally applied to him.

Based on the above mentioned reasons, defendant’s motion to dismiss the counts charging violations of PL § 265.01(1) and AC § 10-131(b) is denied in all respects.

The court grants defendant’s motion for a Huntley/Mapp/Dunaway/Payton hearing.
With regard to defendant’s motion to preclude impeachment evidence based on People v Sandoval and evidence-in-chief of prior bad acts based on People v Ventimiglia, this court refers to the trial court for hearings immediately prior to trial.

The court orders the People to comply with their disclosure obligations pursuant to CPL § 240.43 if they seek to introduce any such evidence.

Defendant requests a bill of particulars and discovery, as well as an order granting the same relief, or, in the alternative, preclusion of evidence. It appears from the People’s response and the court file that the People still have not responded to defendant’s bill and demand.

Accordingly, defendant’s motion to compel discovery is granted to the extent that the People are ordered to respond to defendant’s bill and demand within seven days of the date of this order.

Defendant’s application for an extension of time to file additional motions is denied, subject to the provisions of CPL § 255.20(3) regarding due diligence and good cause.
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Contrary to the mother’s contention, the Family Court’s determination that she regularly used marijuana, and committed acts of domestic violence against the father while the father was holding the child in his arms, is supported by a preponderance of the evidence in accordance with Family Ct Act § 1046[b][i]). This evidence was sufficient to support the Family Court’s finding that the mother neglected the child pursuant to Family Ct Act § 1012[f][i][B], § 1046[a][iii], Matter of Ajay Sumert D., Matter of Ndeye D., Matter of Kiara C.,Matter of Gregory S., Matter of Michelle L., Matter of Ayana Jean L., Matter of Aminat O. and Matter of Sade W. Additionally, the Family Court providently exercised its discretion in drawing a negative inference against the mother for her failure to testify at the hearing as ruled in Matter of Tajani B., Matter of Karen Patricia G., Matter of Christopher L.

The court finds that there is no basis in the record to overturn the Family Court’s credibility determination regarding the father’s uncontroverted testimony, which is entitled to considerable deference on appeal based on Matter of Sadiq H., Matter of Andrew B. and Matter of Samantha B. The fact that the father was seeking custody of the child did not require wholesale rejection of his testimony, which implicated him, as well as the mother, in drug use akin to Matter of Angelyna G.

The Family Court providently exercised its discretion regarding the scope and manner of cross-examination of the father by precluding certain questions that were unnecessarily repetitive or argumentative.

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Two cases of similar nature which involved children were brought before the court for resolution.

The first case is a child custody proceeding pursuant to Family Court Act article 6 wherein the mother appeals from an order of the Family Court, Kings County dated 27 May 2010, which, after a hearing, inter alia, granted the father’s petition for sole custody of the child and denied her cross petition for sole custody of the child.

The criminal court affirms the order, without costs or disbursements.

It was ruled in Matter of Quinones v Gonzalez and Eschbach v Eschbach that the court’s paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child. As custody determinations depend in large part on an assessment of the character and credibility of the parties and witnesses, the Family Court’s findings should not be disturbed unless they lack a sound and substantial basis in the record akin to Eschbach v. Eschbach, Matter of Kreischer v Perry and Matter of Quinones v. Gonzalez.

In the case at bar, the Family Court’s determination that the child’s best interests would be served by awarding sole custody to the father has a sound and substantial basis in the record as was held in analogous cases of Matter of Peoples v Bideau, Pierre–Paul v Boursiquot, Matter of Ramirez v Velez and Matter of Paul v Sawyer. Based on the parents’ testimony and credibility, the Family Court found, inter alia, that the father was more willing than the mother to assure meaningful contact between the child and the other parent as held in Matter of Kreischer v. Perry and Matter of Pappas v Kells. Contrary to the mother’s contention, the Family Court did not improperly fail to consider her allegations of domestic violence, as the Family Court, in effect, resolved the parents’ conflicting testimony in favor of the father and, accordingly, the mother’s allegations were not supported by a preponderance of the credible evidence in accordance with Domestic Relations Law § 240[1], Pierre–Paul v. Boursiquot and Matter of Khaykin v Kanayeya.

The second case is a child protective proceeding pursuant to Family Court Act article 10 wherein the mother appeals, as limited by her brief, from so much of an order of fact-finding and disposition of the Family Court, Kings County dated 5 January 2011, as, after fact-finding and dispositional hearings, found that she had neglected the subject child, and placed the child in the custody of the New York City Commissioner of Social Services.

The court affirms the order of fact-finding and disposition insofar as appealed from, without costs or disbursements.

To be cont………
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Secondly, the validator’s interview did not occur until three months after the initiation of this proceeding, regarding incidents that occurred almost two years earlier. Prior to the validator’s interview, the court had ordered supervised visitation. The mother refused to permit

supervised visitation and the court was given the clear impression that the mother would not comply because she considered the father a sex abuser. The court does not credit the mother’s testimony that she has never spoken to her children regarding the father’s actions.

Despite the mother’s denials, the criminal court has observed the mother’s behavior, demeanor and outbursts during the yearlong proceedings, and concludes that the mother characterized the father as a sex abuser and, continuously and repeatedly made such statements to these children long before the children were interviewed by Dr. AM. Given the history of physical abuse against the mother, the negative feelings of the children toward the father due in part to the domestic violence witnessed by them, the children’s protective feelings towards their mother and the mother’s own psychological problems, the court concludes that these children were influenced by the mother to view the father’s behavior as acts of sexual abuse.

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The CSS filed the instant proceeding on 9 April 1991 alleging that respondent LM sexually abused his sons, MM and DM, ages 10 and 8, respectively, by fondling their genitals and buttocks in violation of Penal Law, § 130.65. CSS also alleges that the children are psychologically and emotionally impaired as a result of the pattern of domestic violence witnessed in the parental household. The petitioner additionally asserts a claim of educational neglect claiming that the children are excessively absent and do not attend school regularly.

The court finds that the allegations of sexual abuse have not been proven by the quantum of proof necessary under Article 10. In order to sustain a finding of sexual abuse, this court must make a threshold finding that the father’s acts were done for the purpose of sexual
gratification. Because sexual abuse is predicated upon the criminal sex offenses defined in the Penal Law, evidence of “intent” is an essential element under Article 10 and as enunciated in Matter of Ruth L.

Dr. AM, the Commissioner’s only witness on the sexual abuse charge, was the validator chosen to access the children’s allegations of sexual abuse. She has been qualified as an expert. She testified that MM and DM both confirmed several instances over a period of two years where their father had fondled their genitals both over and under their clothing and had squeezed and rubbed their buttocks when sitting or reclining on the sofa. The incidents usually occurred when the mother was out of the house.

The children could not specify the number of times such touching occurred or the amount of time that elapsed between such touching. However, the boys did relate that the touching was usually brief and that long periods of time would pass between such instances. According to Dr. AM, the children denied any other form of sex contact such as having to touch their father’s genitals, or digital penetration.

The father concedes to the acts but strenuously denies that the touching was done for sexual gratification. He related to Dr. AM that he touched the boys and pulled or grabbed their genitals and buttocks when he hugged them or played with them, and it was his way of being affectionate with his sons. He also related to Dr. AM that during that period of time he sometimes showered with the boys. However, no allegations of improper touching while in the shower have been made against the father.

Testifying on his own behalf, the father admitted that he grabbed the boys’ genitals and buttocks during times he wrestled with them on the floor or on the sofa. He stated that as a child, he had been similarly touched on the buttocks and had not considered it wrong but now acknowledged that he has now come to realize that such touching transgresses proper parental boundaries.

The court finds unpersuasive that the actions described present an unequivocal and unambiguous showing of sexual abuse. It is certainly not beyond the bounds of reasonableness to find that the father’s actions were misguided attempts to demonstrate affection, or that his behavior demonstrates a lack of understanding of child development.
The Commissioner’s own witness, Dr. AM, could not confirm that the acts described by the children were done for sexual gratification. The court is not disposed to adjudge the touching described as sexual abuse. Normal interplay between parent and child, particularly in the early stages of a child’s development often involve acts of touching, squeezing, patting, and pinching various parts of a child’s body including buttocks and at times genitalia. The difference is that what might be socially acceptable when a child is an infant or toddler becomes less so as the child grows older and becomes more aware of himself as a separate human being. Thus, a parent’s respect for the child’s right to the privacy of his person should increase as the child grows and matures.

Some parents however, lack this understanding in child development and persist in dealing with an older child with the same kind of intrusive handling as when the child was an infant.
The court finds that this is a grey area in the parent/child relationship where claims of sexual abuse must be seriously examined, and extreme caution exercised, lest normal interaction be reported as sexual abuse. The damage that can occur to the parent/child relationship from an erroneous finding can be enormous and long lasting.

The court has given careful consideration to the possibility that the children may have been influenced or coached by the mother. Of critical importance here is the mother’s psychological condition during the past several years. Mrs. M.’s marked psychiatric disturbance raises serious and material issues as to her direct influence and control over the children both before and after Dr. AM’s interview. Each of the witnesses confirmed that Mrs. M. has, over the past five years, exhibited illogical thinking and often has been incoherent. The mother acknowledged that she showed the children video tapes on preventing sexual abuse. Although this fact does not indicate prompting or coaching, it is the cumulative circumstances which point in that direction.

It is to be considered that at first, the children made these allegations to a CWA caseworker only after the father had initiated a 2221 report of suspected child abuse and/or neglect against the mother. In cases of sexual abuse, children usually make initial revelations of sexual abuse to a trusted parent or relative, or friend not to a stranger. Since the mother instructed the children on preventing sex abuse long before CWA became involved with the family, and while the respondents were living together, the court finds it unlikely and improbable that the children first revealed these incidents to a caseworker, rather than to respondent mother. The court notes that this raises the possibility that revelations made to the caseworker were prompted by the mother’s statements to the children.

To be continued…..
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This is a proceeding wherein the court is called upon to determine whether the attorney for the defendant’s application to be relieved as attorney of record should be granted, if the defendant’s applications brought pro se while still represented by counsel are properly before the court, whether or not the defendant is entitled to a 30 day stay of all proceedings in the event counsel is relieved pursuant to CPLR 321(c), whether or not the defendant is entitled to a second court appointed counsel pursuant to Judiciary Law section 35(8)(b) on the issues of custody, visitation and an order of protection, whether or not the defendant should have the benefit of a court assigned interpreter and the sua sponte sealing of photographs of the child’s genitalia and buttocks which were annexed exhibits to defendant’s order to show cause.

GG, an attorney of her own choosing, presently represents the defendant. Defendant’s counsel moved by order to show caused dated 5 November 2010, to be relieved. GG seeks to be relieved as the attorney of record based upon an irretrievable breakdown in the attorney client relationship. The defendant submits in her most recent application disparaging statements about GG and his representation of her. In open court, on 17 November 2010, defendant stated she wished to discharge GG and asked for the appointment of counsel pursuant to Judiciary Law section 35(8)(b).

On 7 October 2010, GG represented the criminal defendant in a temporary custody hearing before this court. The court after the hearing awarded temporary custody of the infant issue to the father, the more stable parent, at the present time, for the care of the child. As a result of the hearing the court believes that plaintiff was a victim of domestic violence. On one occasion he sought medical assistance at an emergency room.

Apparently, shortly before that hearing, defendant appeared in the Family Court, Queens County, pro se, and obtained an ex parte temporary order of protection against plaintiff. That petition indicated that there were no prior applications for an order of protection notwithstanding the present application in this matrimonial action or the two prior Kings County Family Court applications for orders of protection which were withdrawn on the record in open court after consolidation on consent.

Upon disclosure to this court of the defendant’s application in Queens County, this court from the bench contacted the Referee from Queens Family Court who indicated she has no knowledge of an existing matrimonial action. This court informed counsel and the parties’ of this on the record in open Court. Upon written application, this court, ex parte, granted consolidation of the Queens Family Court matter and ordered a hearing on 17 November 2010. That hearing was adjourned so GG could make the present application to be relieved because of defendant’s alleged actions and alleged failure to cooperate with him. Defendant also brought on two orders to show cause pro se while still being represented by counsel and not informing GG of her intent to do so. On 22 November 2010, defendant submitted an application for poor person status and filed a third pro se order to show cause.

Defendant’s first pro se order to show cause is dated 9 November 2010, and seeks temporary custody of the parties’ child, an expanded visitation schedule and a temporary restraining order in accordance to her application in Queens Family Court.

Shortly thereafter, defendant presented another order to show cause on 17 November 2010. This order to show cause was rescheduled on 17 November 2010, due to defendant’s failure to serve same and is returnable on 10 December 2010. Defendant annexed to this application photographs of the parties’ child’s genitalia and matter removed from the child’s nose by insertion of a cotton swab. The photographs of the naked child were removed from the application and placed in a sealed envelope which is maintained by the part clerk. The third order to show cause seeks, inter alia, similar requests for relief.

Defendant’s second pro se order to show cause is dated 17 November 2010. Defendant seeks temporary custody; an expanded visitation schedule; new counsel; forensic evaluation; and for the court to change the attorney for the child.

Plaintiff moved by order to show cause dated 17 November 2010 wherein he seeks the suspension of visitation and supervised visitation. This application is returnable on 10 December 2010.

Defendant filed an appeal, pro se at the Appellate Division, Second Department. She sought leave to appeal two orders of this court dated 6 October 2010, and 7 October 2010, respectively, to be awarded custody of the subject child pending hearing and determination of the appeals, for the reinstatement of a certain order of protection, for poor person relief, to relieve the attorney for the child and appoint a new attorney for the child, and to change venue of the matter to the Family Court, Queens County. On 18 November 2010, the Appellate Division, Second Department rendered a decision and order on motion wherein it was ordered that the branch of the motion which is for leave to appeal is denied, that the branches of the motion which are to be awarded custody of the subject child pending hearing and determination of the appeals, for the reinstatement of a certain order of protection, for poor person relief, to relieve the attorney for the child and appoint a new attorney for the child, and to change venue of the matter to the Family Court, Queens County, are denied as academic and further orders that the application is denied.

At the initial appearance, defendant requested a Mandarin interpreter which was provided, although defendant often lapsed into using the English language or answered questions in English before the translation was completed. The court has observed defendant speak in English, answer in English and respond to her attorney while the court and others are speaking in English. All of defendant’s submissions are in English.

Now defendant requests an Indonesian interpreter for the first time. The Indonesian interpreter was present in court on 17 November 2010. Notwithstanding the interpreter’s presence, defendant at times used the interpreter and at other times did not, but readily understood and spoke English in response to the court’s questions to GG and responded in English.
Defendant’s counsel noted that she recently became a United States citizen. Her written submissions are hand written in English.’.

In Matter of Dunn, Lake v M.P.C. Trucking and Rivardeneria v New York City Health and Hospitals Corp., it was emphasized that as a general rule, an attorney may terminate the attorney-client relationship at any time for a good and sufficient cause and upon reasonable notice. The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court, and the court’s decision should not be overturned absent a showing of an improvident exercise of discretion.

It is clear to this court that there is a breakdown in the attorney client relationship between defendant, and GG and defendant’s conduct renders it unreasonably difficult for counsel to carry on his employment. As such GG can no longer serve as the attorney of record.
Defendant’s filing of motions and orders to show cause and the seeking of relief in different courts without ever notifying one’s lawyer is, in this court’s opinion, a per se basis to be relieved as counsel of record. The failure to notify counsel of the acts of the client and the effects of such applications by a litigant on the attorney client relationship would have to be examined on a case by case basis. The court opines that a litigant should proceed in a civil proceeding by way of a pro se application only under rare and special circumstances and must inform their attorneys of their intentions.

Defendant again requests that this court appoint counsel to be paid with government funds. She states the she needs counsel who truly understands domestic violence and who is ready for her case. The court finds it problematic to provide court appointed counsel at public expense for someone who transferred large sums of money upon service of a summons as what defendant did. The court is mindful though that the right to counsel in a custody or visitation dispute is fundamental as held in Williams v Bentley. The deprivation of a party’s fundamental right to counsel in a custody or visitation proceeding is a denial of due process and requires reversal, without regard to the merits of the unrepresented party’s position.
Accordingly, counsel shall be appointed for defendant by separate order subject to an order that if it is found at trial that defendant secreted or transferred separate or marital assets then the costs of the court appointed attorney to the government may be ordered reimbursed to the State of New York at a future date. Defendant is cautioned that the discharge or failure to cooperate with the newly appointed counsel may result in necessitating that defendant proceed self-represented in the future.

With the court having determined that GG is entitled to be relieved, the remaining issue is whether there should be a stay of the proceedings pursuant to CPLR 321 (c). While a litigant is usually entitled to a 30 day stay pursuant to CPLR 321 (c) to obtain new counsel, here there is a request for a stay by outgoing counsel and a request by the defendant herself that counsel be assigned by the court and paid for by public funds. This court is of the opinion that with the appointment of counsel the need for a thirty day stay is obviated.

Defendant is enjoined from proceeding pro se in Supreme Court without notifying her attorney and may only proceed pro se if she is unable to contact that attorney. This court notes that the issuing of a stay would affect the parties’ rights to seek judicial relief during the thirty day period. In the event defendant seeks further relief from the Family Court, defendant must inform the Family Court of the existence of the case.

The court has on the record removed all of the photographs of the child’s genitalia and they are kept sealed by the clerk of the part together with any copies. The court also notes that the plaintiff was awarded temporary custody of the parties’ child after a full evidentiary hearing and plaintiff is the only individual authorized to obtain medical services or treatment for the child absent an emergency. While the defendant has agreed to stop undressing the child at the police precinct during exchanges of the child, she must now also stop bringing the child to emergency rooms and doctors absent a true medical emergency. While she claims ACS has not returned her phone calls if she truly believes that the child is neglected she shall contact the ACS hotline. The court, pending further order, directs the defendant not take photographs of the child’s genitalia or stick cotton swabs in the child’s nose to remove matter and then photograph same and attach it to papers alleging to show the court that the child has an illness.

While it has been held in certain types of proceedings, there is an absolute right to an interpreter, here, it is clear to the Court that the defendant is able to speak and rapidly respond in cohesive and intelligent English.

The defendant participated in a temporary custody hearing on 7 October 2010. Although a Mandarin interpreter had been provided for prior appearances defendant choose to proceed with the temporary custody hearing without the services of an interpreter. The defendant’s testimony was coherent and comprehensible. There was no manifestation of need for an interpreter. Defendant’s application is denied.

The issue of the defendant’s request for an order of protection and plaintiff’s request for suspension of visitation will be the subject of an evidentiary hearing. If properly served, the court will hear oral argument of defendant’s other orders to show cause which appear in part to be best delineated as motions to renew or reargue on 10 December 2010. An attorney for defendant and a forensic shall be appointed by separate orders. The cost of each shall be paid as ordered and subject to defendant being ordered to possibly reimbursing the State of New York for her share.
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This is a contested matrimonial action wherein the plaintiff, the husband, moves by order to show cause dated 6 January 2010 for the following relief: an order directing the return of the parties’ two children, A, age 7 and M, age 4, to New York State; an order awarding the husband temporary custody of the subject children; and, an order awarding the defendant, the wife, reasonable visitation with the minor children within the State of New York.

On the other hand, the wife opposes the husband’s application and cross moves by order to show cause dated 9 April 2010 for the following relief: an order dismissing the husband’s application on the basis that New York is not the home state pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act and for permission for the wife to commence a custody proceeding in California; and, an order directing the husband to pay all costs associated with Court appearances, including but not limited to transportation costs including airfare, car rentals, hotel costs, and daycare.

In opposition to the wife’s cross motion the husband moves by order to show cause dated 10 June 2010 for the following additional relief: an order directing the wife to immediately return the children at the conclusion of the 2010 school year; an order directing that the minor children reside with the husband pending the jurisdictional decision of this Court; and, an order requesting that the Superior Court of the State of California vacate any and all orders issued and to stay all proceedings now pending in California and to defer issues of support, custody and parental access to this Court. There was no assault charged.

These applications represent the second request for relief brought by the Husband.
On 17 July 2009 the husband filed two separate petitions in the New York State Family Court Kings County requesting the immediate return of the children to New York. These petitions, however, were withdrawn without prejudice by the husband prior to disposition alleging that it was his mistaken belief that the parties could resolve their differences without court intervention.

On 29 December 2009, the matrimonial action was commenced by the husband. Both the summons for divorce and the husband’s first order to show cause requested that the children be returned to New York. On 19 January 2010, the wife appeared pro se in the New York action and On 25 February 2010, the preliminary conference and the order to show cause were adjourned.

The preliminary conference was conducted and it was ordered that the issues of custody, parental access, child and spousal support, and equitable distribution were marked unresolved. The issue of jurisdiction to determine custody was unresolved.

A separate temporary order was issued which directed that the husband provide interim child support and for him to continue to pay the children’s private school tuition. It also ordered that the husband pay the lease payments on the Lexus automobile and the wife to remain responsible for the insurance, registration and operating expenses of the Lexus. The consent order provided that the children would remain with the wife in California and that the husband would have temporary access to the children in California and that he be permitted access time in New York at times and under conditions to be mutually agreed upon. The husband was provided daily phone access, and the wife agreed to withdraw without prejudice a pro se support proceeding she had filed in California. The order was without prejudice to the parties’ respective jurisdictional claims.

The criminal court issued an order directing that monies be placed in escrow to cover the costs of both an Attorney for the Children and a forensic expert. Thereafter, the Court appointed BN to represent the children. Although represented by counsel in New York, the Wife appeared pro se and filed an ex parte application in California requesting emergency relief. The Wife was granted a temporary order of sole legal and physical custody of the subject children. Also, the California court deferred to New York as the “home state”

The court scheduled a hearing on the issue of jurisdiction. In partial response to the husband’s 10 June 2010 order to show cause, he was granted interim relief by order dated 6 July 2010, which by its terms continued all interim orders and granted him additional parental access time in California with leave to enforce the order in a court of competent jurisdiction in California. The husband did not exercise his right to July visitation in California, and the children were produced by the wife in New York, as directed, to meet with their lawyer prior to the scheduled hearing and thereafter to spend time with the husband in New York.
At the hearing, the wife appeared pro se, the husband was represented by counsel and the children were represented by their attorney. Both parties testified on their own behalf. No other witnesses were called. At the conclusion of testimony the hearing was adjourned for the submission of closing statements. Both parties and the Attorney for the Children submitted statements in support of their respective positions.

The court finds these indisputable facts:

On 6 January 1999, the parties were married and have resided in an apartment owned and furnished by the maternal grandmother in New York. Out of the marriage was born two children: A born in 2003 and B 2006. Until July 2009, the children attended daycare and private nursery schools in Brooklyn, New York. Any child care providers were New York residents. Their well baby and sick medical care was also received in New York. Any social interaction was engaged in New York as well.

The husband and wife have extended family living in California, and they reside in close driving proximity to the wife. Both sets of grandparents and the husband’s two sisters live in driving distance to the wife’s apartment in California. One of the paternal aunts visits with the children and has brought them to visit their paternal grandparents. The maternal grandparents assist in providing child care for the children, and the children sleep over at their grandparents’ home once a week and are taken to school by them the following day. While the maternal grandmother owns properties in New York, neither parent has close family living in Brooklyn or elsewhere in New York City.

The husband, a dentist who is licensed to practice dentistry in both New York and California, is currently self-employed. The wife is a former medical resident now engaged as a research assistant at UCLA. At the suggestion of the wife’s mother, and to assist the wife in obtaining employment, the parties agreed to relocate to California. On 7 July 2009, the wife and children left New York and moved into an apartment in Sherman Oaks, California for which the husband signed the lease. The husband agreed to and participated in the plans to relocate, and the move reflected what the husband assumed to be their mutual decision. In particular, the husband asserted that the move reflected an economic decision to assist the wife’s efforts to find employment because she has been out of work for approximately two years.

The children were enrolled and attended private schools in California for which the husband paid in full and the Lexus automobile was shipped to California to be used by the family upon their arrival.

The husband remained in New York to earn additional income prior to joining his family. However, approximately two weeks later and prior to his leaving New York, the wife advised him that she had found someone else and did not want him to relocate to California in order to live with her and the children. She wanted a divorce.

Shortly thereafter the husband left New York for California. He stayed at his parents’ home as he was not welcome to stay with his wife and children. He remained in California for approximately six weeks in order to look for employment and attempt to reconcile with his Wife but was unable to find work as a dentist so he returned to New York. In New York, he vacated the former marital residence as it was owned by his mother-in-law, and he has since been sued for alleged arrears in unpaid rent. The furniture in the apartment belonged to his mother-in-law and was returned to her as well.

Monies that had been placed in joint bank accounts in New York had been removed by the wife in anticipation of her move to California. While the husband concurred in the decision to move the family to California, the wife’s undeclared intention was to separate from her husband and remain in California with the children.

Since July 2009 the children have lived in an apartment in California with their mother and her boyfriend, “R.” They have each attended school and/or day care in California since they left New York to which the husband consented to.

Pursuant to DRL §76(1)(b) New York has jurisdiction to make an initial custody determination if New York is the home state of the children at the time of the commencement of the proceeding or was the home state within six months prior to the commencement of the action.
The ability to obtain jurisdiction and the propriety of exercising jurisdiction are two separate issues. The Court must make two determinations: first, that jurisdiction lies under DRL §76, and second, that succeeding provisions do not preclude jurisdiction or do not mandate a declination of jurisdiction in favor of another state.

As mentioned earlier, these children have lived with both parents in New York for at least six consecutive months immediately prior to the commencement of the instant action. The divorce action was commenced 29 December 2009. Although the divorce action was timely commenced, the Court notes that the Husband had also timely filed writs of habeas corpus and custody petitions in the Family Court Kings County within a few weeks of the children’s relocation to California.

The court concludes that it does have jurisdiction to determine custody as it is the home state of the children. However under the circumstances of this case, the court must now address the California proceeding. The pendency of a proceeding in another jurisdiction does not mandate or justify dismissal. Rather, the Court must determine on the record that the foreign state is exercising jurisdiction in substantial conformity with UCCJEA. This Court is also mandated to communicate with the California court prior to determining which state’s proceeding should take precedence.

In the instant case, the wife filed an application for custody in California on 15 April 2010, approximately four months after the New York action was commenced. The California petition does not specify that there is a custody proceeding pending in New York. In response to the Wife’s California application, the court exercised “temporary emergency jurisdiction” and awarded the Wife temporary sole custody pursuant to California Family Code 3424.

In deferring to this Court to determine jurisdiction, the California court stated that the determination was “without prejudice to Petitioner’s presentation of any evidence that bears on the issue of jurisdiction or on whether California is a more convenient forum.”

In order for this Court to determine if New York is an inconvenient forum, the Court must address the delineated factors set forth in DRL §76-f.

In analyzing the facts as testified to by the parties the Court finds that there are no child protective issues and no domestic violence. The children have resided in California for one year on the consent of the husband. He also withdrew without prejudice his application for a writ of habeas corpus which if heard would have addressed the children’s removal from the jurisdiction prior to their attendance in school and possible acclimation to their new home.
The distance between the two courts is 2,787 miles. The Husband testified that he understood that it was less costly for one party to travel to California than for three to travel to New York. The Court also finds that Husband’s compliance with the court directives for payment of legal fees for his children has not been consistent.

Neither party agreed to which state should have jurisdiction. While the husband agreed to the children’s move, he was unaware that his wife did not want him to move with them. While he continued to assert that New York had jurisdiction to determine custody, he withdrew his Family Court writs and consented to the children remaining in California during the school year.

The court notes that one year is significant in the lives of these very young children and all current and relevant information is now in California. The children would need to be interviewed and observed by the court appointed forensic evaluator and would need to appear for an in camera hearing.

There is every indication that each court has the ability to decide the issues expeditiously the Court is assured that the statutory scheme in California provides all the procedures necessary to present evidence on the issue of custody. The California court has the most current report on behalf of the subject children. Upon receipt of this decision and order and the accompanying transcript both courts will have sufficient familiarity with the facts and issues in the pending litigation. BN will remain the Attorney for the Children for the limited purpose of providing any information to the lawyer appointed to represent the children in California and will thereafter be relieved.

Considering the above factors, the Court concludes that New York is an inconvenient forum and that Californian is a more appropriate forum to determine the issue of custody.

There is no dispute that New York has jurisdiction to address all the remaining ancillary issues in the matrimonial action and the Wife will have to address those issues before this Court by complying with court ordered discovery, appearing for compliance and pre-trial conferences and if not resolved, appearing for trial at such dates and times as the Court sets. While declining to exercise custody jurisdiction the Court still retains jurisdiction over the divorce.
Accordingly, at the conclusion of the children’s visit with the husband in New York, the children are to return with the wife to California to commence school. The pendente lite order of support is to remain in effect pending conclusion of the parenting issues before the California court.
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In January 2007, defendant JF was charged by misdemeanor information filed in New York City Criminal Court, Kings County, with multiple counts of aggravated harassment in the second degree after he contacted his former paramour by telephone 62 times in one evening and repeatedly threatened her with physical harm. JF and the complainant had been involved in multiple prior Family Court cases regarding disputes about their two children. After his arraignment in New York City Criminal Court, the case was transferred to the IDV Part in Kings County Supreme Court where a nonjury trial was conducted. He was convicted of three counts of attempted aggravated harassment in the second degree and sentenced to concurrent terms of one year’s probation. He was also directed to participate in a variety of domestic violence accountability and other programs. He raised no objection in the trial court to the transfer of his case.

In his appeal to the Appellate Division, Second Department, however, he argued that the IDV Part-an arm of Supreme Court-lacked the authority to exercise subject matter jurisdiction over his misdemeanor case because it was prosecuted by information rather than an indictment or superior court information issued after waiver of indictment. Defendant also contended that the Chief Judge and Chief Administrative Judge exceeded the scope of their authority when they issued the IDV directives. In addition, he sought reversal based on an asserted evidentiary error. The Second Department unanimously rejected defendant’s arguments and affirmed his conviction. A Justice of that court granted defendant leave to appeal.

About nine months after the IDV directives were issued, in consultation with the Administrative Board and with the consent of the Court of Appeals, the Chief Judge promulgated part 42 of the Rules of the Chief Judge establishing a criminal division in the Supreme Court in Bronx County. The new part-denominated the Bronx Criminal Division (BCD)-was vested with the authority to adjudicate cases commenced in the New York City Criminal Court, Bronx County, when at least one felony or misdemeanor offense was charged. The intent was to permit cases originating in the Criminal Court to be reassigned to the BCD for trial in order to alleviate a trial backlog that had developed in the Criminal Court. The Chief Administrative Judge adopted part 142 directing, with specified limitations, that certain felony and misdemeanor cases pending in Criminal Court of the City of New York in 933 N.E.2d 709.

Bronx County be transferred to the BCD part of Supreme Court following arraignment, if the cases were not resolved at arraignment. By order of the Administrative Judge of Bronx County, the BCD directives were implemented on 5 November 2004.

Thereafter, in October 2005, defendant EC was charged in a misdemeanor information filed in New York City Criminal Court, Bronx County, with various class A misdemeanors and harassment in the second degree, a violation, resulting from an altercation with his wife. After arraignment, his case was transferred to the BCD and a nonjury trial was conducted. EC was acquitted of the misdemeanor offenses but convicted of the harassment charge and sentenced to 15 days in jail.

Defendant AM was charged in an information with the misdemeanor offenses of obstructing governmental administration and assault in the third degree, as well as one count of harassment in the second degree, a violation, as a result of disruptive behavior during a parole hearing. Following his arraignment in New York City Criminal Court, Bronx County, AM’s case was transferred to the BCD for a nonjury trial in August 2006. He was convicted of attempted assault in the third degree and harassment for which he received 90-day and 15-day jail sentences, respectively.

Defendants in these three cases challenge the rules promulgated by the Chief Judge and Chief Administrative Judge that created either the Bronx Criminal Division or Integrated Domestic Violence Part in Supreme Court, which resulted in the transfer of their misdemeanor prosecutions from local criminal courts to Supreme Court for trial. Although they did not object to the transfer procedure in the trial court, they argued on appeal that Supreme Court lacked subject matter jurisdiction over their trials and that the rules violate the New York Constitution and the Criminal Procedure Law.

Rejecting defendants’ arguments, the court holds that the administrators of the Unified Court System were empowered under our State Constitution and the Judiciary Law to adopt these rules and that Supreme Court-a court of general, concurrent jurisdiction-had the power to adjudicate these misdemeanor cases.

Defendants contend that if UCS administrators had the power under the constitutional and statutory scheme to reassign cases, that authority was exceeded when the BCD and IDV directives were adopted because cases may only be transferred to a court that possesses subject matter jurisdiction. Primarily relying on CPL 210.05, defendants claim that Supreme Court’s power to try a misdemeanor is restricted to cases in which the charge is included in an indictment or SCI, meaning that the court lacks subject matter jurisdiction over misdemeanors charged in an information-so-called “unindicted” misdemeanors. Since none of the defendants in these cases was indicted or waived indictment and agreed to be prosecuted by SCI, they argue that their trials in Supreme Court were a nullity.

The court finds this argument without merit.

There is no question that the Criminal Procedure Law generally contemplates that violations and misdemeanors will be tried in local criminal courts and that felonies, which may be initiated by the filing of an information or complaint but must ultimately be prosecuted by indictment or SCI, will be tried in the superior courts-County Court or Supreme Court. But the issue presented in this case is not whether misdemeanor cases are typically tried in local criminal courts or even whether, when adjudicated in Supreme Court, they are usually charged in an indictment-the answer to both of these questions is undoubtedly “yes.” This dispute concerns the extent to which Supreme Court can exercise subject matter jurisdiction over misdemeanor trials.

The court reviews the New York Constitution to determine the scope of Supreme Court’s jurisdiction. It provides: “The Supreme Court shall have general original jurisdiction in law and equity and the appellate jurisdiction herein provided”. Under this provision, Supreme Court is competent to entertain all causes of action unless its jurisdiction has been specifically proscribed. The court have recognized that, when the drafters of article VI created the UCS in 1962 and continued Supreme Court as a court of general jurisdiction, if anything its jurisdiction was enlarged to encompass claims that it might not have heard under the previous constitutional scheme.

To be sure, the jurisdiction of Supreme Court is limited elsewhere in the New York Constitution. For example, in preserving the State’s historical sovereign immunity from suit, Supreme Court cannot exercise jurisdiction over claims for money damages brought against the State, which must be initiated and tried in the court of claims. Similarly, under the Supremacy Clause of the United States Constitution, Supreme Court may not hear cases in which exclusive jurisdiction has been conferred on the federal courts. And Supreme Court is subject to the same substantive limitations imposed on other courts. Like every other court in New York State, Supreme Court may not convict a defendant of a felony absent compliance with the indictment and waiver of indictment provisions in article I, § 6 of the New York Constitution as was held in People v Wiltshire.

Defendants also assert that the Legislature has imposed statutory restrictions on Supreme Court that prevent trials of misdemeanor charges from being entertained unless they are contained in an indictment or SCI after waiver of indictment. According to defendants, although local criminal courts such as the New York City Criminal Court may try unindicted misdemeanor cases, Supreme Court lacks subject matter jurisdiction over those matters and, in this respect, its ability to exercise concurrent jurisdiction with other UCS courts has been curtailed.

If this were in fact the case, a significant constitutional issue would be presented because the court made clear in other contexts that the Legislature cannot by statute deprive Supreme Court of one particle of its jurisdiction, derived from the Constitution, Art. VI, although it may grant concurrent jurisdiction to some other court. Addressing the precise issue raised in these appeals-whether Supreme Court may try an unindicted misdemeanor-there is authority for the proposition that it does and that any effort by the Legislature to “abridge, limit or qualify” the broad jurisdiction conferred under article VI, § 7 would be “unconstitutional and void” as enunciated in the case of People v Darling.

After review of the Criminal Procedure Law provisions on which defendants rely, the court concludes that the Legislature has not adopted statutes that purport to oust Supreme Court of the jurisdiction to try unindicted misdemeanor cases. The court, therefore, need not determine whether the Legislature could take such action, had that been its intent. The CPL divides New York courts into two categories: superior courts and local criminal courts. It also recognizes two types of jurisdiction: “preliminary jurisdiction” and “trial jurisdiction.” Preliminary jurisdiction encompasses conducting arraignments, assigning counsel, setting bail and, in the case of a felony complaint, conducting a preliminary hearing if that right is not waived by defendant. As the title suggests, trial jurisdiction includes the authority to resolve the case on the merits by conducting a trial or accepting a guilty plea, among other actions such as conducting a suppression hearing.

In these appeals, the court is concerned only with whether Supreme Court had trial jurisdiction because, under the BCD and IDV directives, misdemeanor cases are not transferred to Supreme Court until after the preliminary proceedings associated with arraignment have concluded.
CPL 10.20, entitled “Superior courts; jurisdiction,” states that superior courts-which include Supreme Court-“have trial jurisdiction of all offenses” and further specifies that they have exclusive trial jurisdiction of felonies and trial jurisdiction of misdemeanors concurrent with that of the local criminal courts.

A reciprocal provision relating to the jurisdiction of local criminal courts states that they have trial jurisdiction of misdemeanors concurrent with that of the superior courts but subject to divestiture thereof by the latter in any particular case Neither statute conditions the power of a superior court to try misdemeanor cases on the existence of an indictment or SCI. To the contrary, both unqualifiedly state that superior courts possess subject matter jurisdiction to try all misdemeanor cases, a point that is evident from the broad language in CPL 10.30(1)(b) recognizing that a superior court can exercise its divestiture authority “in any particular case.”
In its express language, the CPL acknowledges that superior courts-such as Supreme Court-have subject matter jurisdiction to try misdemeanor cases.

Nor do the divestiture statutes found elsewhere in the CPL undermine this conclusion. CPL 170.20 requires the transfer of a case to a superior court if the People secure an indictment and CPL 170.25 permits the defendant to obtain an order from a superior court directing that a misdemeanor charge be submitted to the grand jury if the interests of justice so require. These statutes discuss only the jurisdiction of local criminal courts, which lose the power to resolve a case if divestiture occurs. The provisions neither state nor imply that a superior court lacks jurisdiction until a case is indicted.

The divestiture statutes address the ability of the parties-the People or the defendant-to effectuate the removal of a case to a superior court such as Supreme Court. They do not address, much less revoke, the transfer powers granted to Supreme Court and UCS administrators in the Constitution and Judiciary Law § 211. To the contrary, the fact that CPL 170.25 permits a defendant to apply to Supreme Court for an order requiring a misdemeanor charge that is pending in a local criminal court to be submitted to a grand jury belies defendants’ argument that Supreme Court lacks jurisdiction over such a charge until it is incorporated in an indictment-if Supreme Court could not exercise subject matter jurisdiction over unindicted misdemeanor charges, it would not be able to entertain a CPL 170.25 application.

Defendants’ contention-credited by the First Department-that CPL 210.05 is a jurisdictional provision that precludes Supreme Court from trying unindicted misdemeanor cases must also be rejected. CPL 210.05 directs that the only methods of prosecuting an offense in a superior court are by an indictment filed therewith by a grand jury or by a superior court information filed therewith by a district attorney. Defendants urge us to interpret the provision as a divestiture statute that prevents Supreme Court from exercising subject matter jurisdiction over any criminal case until there has been an indictment or defendant has agreed to waive indictment and be prosecuted by SCI.

By its terms, the statute discusses how a case may be prosecuted, thereby imposing a limitation on prosecutorial power. It restricts the methods by which a prosecutor may pursue charges, precluding the People from seeking a trial in the superior courts without first obtaining an indictment or a defendant’s consent to waive indictment and proceed by SCI. The statute neither mentions nor purports to curtail the concurrent trial jurisdiction granted to Supreme Court elsewhere in CPL 10.20, 10.30.

The court’s determination that CPL 210.05 was intended to do nothing more than restrict prosecutorial authority is consistent with the legislative history of the provision, which predated the CPL. In 1941, the Legislature amended the predecessor to CPL 210.05-Code of Criminal Procedure § 222, entitled “Crimes; how prosecuted”-to contain substantially the same restriction that it includes today, directing that all crimes prosecuted in the supreme court, or in a county court must be prosecuted by indictment. The purpose of the restriction was to conform the statute to our holding in People ex rel. Battista v Christian, a case decided at a time when article I, § 6 unqualifiedly precluded any criminal defendant from being tried on a capital or felony offense absent indictment by a grand jury.

CPL 210.05 can properly be read as a nonjurisdictional limitation on prosecutorial authority. The defendants’ alternative interpretation would not control even if it was plausible. Where the language of a statute is susceptible of two constructions, the courts will adopt that which avoids injustice, hardship, constitutional doubts or other objectionable results.

The general rule is that the Legislature may not curtail the concurrent subject matter jurisdiction vested in Supreme Court in article VI, § 7. If the court were to adopt defendants’ view that CPL 210.05 divests Supreme Court of its power to try unindicted misdemeanor cases-cases that the New York City Criminal Court, another UCS court, is permitted to hear-a serious question would be raised about the constitutional validity of CPL 210.05. Faced with the choice between an interpretation that is consistent with the Constitution and one that creates a potential constitutional infirmity, courts are to choose the former.

Given its language and legislative history, the court rejects the notion that CPL 210.05 precludes Supreme Court from exercising trial jurisdiction over misdemeanor cases concurrent with other UCS courts. To the extent defendants challenge the transfer of their cases on equal protection grounds, this contention also lacks merit because defendants have not identified any respect in which they received less favorable treatment in Supreme Court than they would have received had their nonjury trials been conducted in the New York City Criminal Court.
Therefore, the court holds that Supreme Court had subject matter jurisdiction over defendants’ misdemeanor cases.
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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.
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