Opinion
No. O–1079/12.
2012-10-3
In the Matter of a Family Offense Proceeding under article 8 of the Family Court Act ALBERT G., Petitioner, v. SHERYL G., Respondent.
Loran Shlevin, Building Services Legal Services Fund, New York, for petitioner. Veronica Escobar, Jamaica, for respondent.
Loran Shlevin, Building Services Legal Services Fund, New York, for petitioner. Veronica Escobar, Jamaica, for respondent.
JOHN M. HUNT, J.
Respondent has moved for an order vacating the order of fact-finding dated March 7, 2012 which found that she had committed the family offense of Disorderly Conduct (Fam. Ct. Act § 812[1]; Penal Law § 240.20), as well as the order of disposition entered on the same date which suspended judgment in accordance with Family Court Act § 841(b).
By petition filed pursuant to Family Court Act § 821(1) on January 9, 2012 the petitioner, Albert G., alleged that the respondent, Sheryl G., had committed one or more family offenses within the meaning of Family Court Act § 812(1). The petition alleged that the parties are married and residing together in the marital residence, and that their child, Isaiah G. (born September 14, 1995), resides in the home with the parties. More specifically, the petition alleged that “on January 7, 2012 at [the] home of both parties, petitioner states respondent cut my right arm with a glass ... petitioner received stitches at Jamaica Hospital. In the past, respondent smacked petitioner on two separate occasions.”
The parties first appeared before the Court on January 9, 2012 and respondent's attorney advised the Court that a concurrent criminal action had been commenced against the wife based upon the same incident alleged in the family offense petition ( see,Fam. Ct. Act § § 812[1], [2][a]; 813[3]; People v. Wood, 95 N.Y.2d 509, 512–513;Matter of Alfeo v. Alfeo, 306 A.D.2d 471). The Court issued a temporary order of protection (Fam. Ct. Act § 828), and the case was adjourned until March 7, 2012 with the expectation that the related criminal case would be resolved by that date. Both parties and their attorneys appeared before the Court on March 7, 2012 and the Court was advised that the criminal action against Sheryl G. in the Queens County Criminal Court had concluded. The Court was presented with documentation from the Criminal Court which established that on January 23, 2012 Mrs. G. had been convicted of the offense of Disorderly Conduct (Penal Law § 240.20), and that on the same date the Criminal Court (Yavinsky, J.) had sentenced the respondent to a conditional discharge for a period of one year (Penal Law § 65.05). The conditional discharge mandated that respondent attend and complete a 12 session anger management program, and the Criminal Court also issued a one year order of protection against the respondent directing that she commit no further family offenses against her husband (Criminal Procedure Law § 530.12 [5] ).
A fact-finding hearing upon the family offense petition was conducted before this Court on March 7, 2012. At that hearing the respondent stipulated that she had been convicted of the offense of Disorderly Conduct by the Criminal Court for the identical incident alleged in this family offense petition, and based upon that conviction this Court entered a fact-finding order determining that respondent had committed a family offense ( see, Matter of Juan C. v. Cortines, 89 N.Y.2d 659, 667;Parker v. Blauvelt Volunteer Fire Department, 93 N.Y.2d 343, 349;People v. Evans, 94 N.Y.2d 499, 502;Matter of Gowrie v. Squires, 71 AD3d 1023, 1024;Matter of Debra MM. v. Ralph MM., 61 AD3d 1278, 1279). The Court proceeded to an immediate dispositional hearing (Fam. Ct. Act § 833), and pursuant to Family Court Act § 841(b), judgment was suspended against respondent for a period of six months. In connection with this order of disposition, the Court directed that respondent comply with the terms of the Criminal Court's sentence as well as the order of protection issued by that Court (22 NYCRR § 205 .74[a] ).
In support of the motion to set aside this Court's fact-finding order, respondent contends that the six month suspended judgment period has expired without further incident or judicial intervention and that she is entitled to have the order vacated and the family offense petition dismissed.
While Family Court Act § 841 allows for a suspended judgment as a possible order of disposition, the statute is silent as to the ultimate disposition of the family offense petition and any intermediate orders, such as the fact-finding order, upon the uneventful expiration of the suspended judgment period.
Suspended judgments are provided for in various Family Court proceedings such as Person in Need of Supervision Proceedings (Fam. Ct. Act § § 754[1][b]; 755; e.g., Matter of Michael H., 239 A.D.2d 618;Matter of Naquan J., 284 A.D.2d 1, 4), child protective proceedings (Fam. Ct. Act § 1052[a][i]; 1053; e.g., Matter of Amelia W., 77 AD3d 841, 842;Matter of M.N., 16 Misc.3d 499), and a proceeding seeking the termination of parental rights (Fam. Ct. Act § 633; e.g., Matter of Michael B., 80 N.Y.2d 299, 311;Matter of Jonathan J., 47 AD3d 992, 993,lv denied10 NY3d 706).
With the exception of termination of parental rights proceedings for which specific provisions were enacted in 2005 (L 2005, ch 3 [amending Fam. Ct. Act § 633]; see, Matter of Jonathan B., 193 Misc.2d 52,rev'd5 AD3d 477,lv dismissed2 NY3d 791), the articles governing child protective proceedings, family offense proceedings, and PINS proceedings do not contain provisions governing the disposition of a case in which a suspended judgment has been granted and the suspension period lapses without further judicial action.
Suspended sentences were once permissible in criminal actions. However, the present Penal Law “does not allow the court to suspend sentence, since that type of sentence has been replaced by the sentences of conditional and unconditional discharge” (People v. Darling, 50 A.D.2d 1038, 1039;see also, People v. Szymkiewicz, 31 AD3d 754;People v. Roche, 31 Misc.3d 142(A), 2011 N.Y. Slip Op 50833[U] ).
As a general rule, it has been held that “[w]here an order of suspended judgment is silent as to the legal consequences of the expiration of the period of suspension, the judgment itself does not expire by operation of law. Rather, the Family Court retains jurisdiction to consider a motion by any party to enforce, modify, or vacate it at any time, upon a proper factual showing of compliance or noncompliance with its terms and conditions” ( Jonathan B. at 479 [ emphasis added ]; see also, Matter of Darren V., 61 AD3d 986, 987,lv denied12 NY3d 715;Amelia W., at 842 [adopting similar rule for suspended judgment in child protective proceeding] ).
Thus, while a party's “compliance with the terms of a suspended judgment may, but does not necessarily, lead to dismissal” of the underlying petition ( Darren V. at 987), the party subject to the suspended judgment is not automatically entitled to have the judgment vacated and the petition dismissed. Instead, the court retains jurisdiction over the proceeding for the purpose of enforcing, modifying, or vacating the suspended judgment “upon a proper showing of compliance or noncompliance with its terms and conditions” ( Jonathan B. at 479), as the interests of justice may require. This rule is entirely consistent with the provisions of Family Court Act § 844 which, although not specifically applicable to suspended judgments, provides that the Family Court may “for good cause shown ... reconsider and modify any order issued under paragraphs (b), (c) and (d) of section eight hundred forty-one” ( see, Sobie, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Court Act § 844 at 336 [West 2009] ).
Here the respondent's motion is based solely upon the fact that the six month suspension period ordered in this Court's order which suspended judgment has lapsed without any further judicial action. That fact, standing alone, neither extinguishes the Court's fact-finding order, nor does it entitle the respondent to dismissal of the underlying family offense petition. In fact, the Family Court order which suspended judgment specifically conditions the suspension of judgment upon her compliance with all of the terms of the Criminal Court order of protection and its sentence of a conditional discharge. As of the date of respondent's motion, she clearly has not fully complied with the conditional discharge and the order of protection inasmuch as the order of protection and the conditional sentence both do not expire until January 12, 2013.
The conditional discharge to which respondent was sentenced to by the Criminal Court is a revocable disposition (Criminal Procedure Law § § 60.01[2]; 410.70[5] ), and in the event of a violation of the conditional discharge, respondent may be subject to a different authorized sentence upon the violation for which she has been convicted (Criminal Procedure Law § 60.01[3]; People v. Bennett, 269 A.D.2d 401,lv denied94 N.Y.2d 916;People v. Charland, 30 AD3d 838, 839;People v. Hope, 32 AD3d 1115, 1116).
Therefore, at the present time because the respondent remains subject to the sentence imposed by the Criminal Court as well as the order of protection, there is no basis for this Court to vacate its own fact-finding order or the suspended judgment, both of which are based entirely upon the Criminal Court's judgment (Criminal Procedure Law § 1.20[15] ) rendered by the Criminal Court. At such time as respondent has fully complied with the conditional discharge and she has been granted relief from the judgment of the Criminal Court, she is free to seek relief from the suspended judgment and fact-finding order issued by this Court.
It is therefore,
ORDERED, that respondent's motion for an order vacating the orders of fact-finding and disposition entered in this family offense proceeding is denied for the reasons stated.
This constitutes the decision and order of the Court.