Opinion
2006KN057746.
Decided August 29, 2006.
People's Counsel: David Cahn.
Defendant's Counsel: Courtney Bryan.
Defendant is charged with one count of Assault in the Third Degree, one count of Menacing in the Third Degree, and one count of Harassment in the Second Degree. The Complaining Witness is Defendant's daughter.
At arraignment, Defendant was released on his own recognizance, and the matter was adjourned for discovery. The People initially requested the court to issue a full temporary order of protection for the Complaining Witness. Defendant requested that the order of protection be limited, indicating that the Complaining Witness wished her father to return home. The Complaining Witness appeared in court accompanied by her mother, Defendant's wife, and confirmed Defendant's statement regarding a limited order of protection.
The People reported that Defendant abused his daughter when he was drunk. Therefore, the People requested that a directive be included in a limited order of protection that Defendant stay away from the home when he was drinking. Although Defendant was agreeable to this restriction, the court refused to so encroach upon Defendant's activities. Consequently, the People requested a full order of protection, which the court granted. This decision explains the rationale behind the court's refusal to condition a limited order of protection based upon Defendant's drinking habits.
Pursuant to section 530.12(1) of the CPL,
When any criminal action is pending involving a complaint charging any crime of violence between spouses, parent and child . . . the court . . . may issue a temporary order of protection. . . .
Further, any order of protection so granted may include a provision requiring the defendant:
(d) to refrain from acts of commission or omission that create an unreasonable risk to the health, safety, and welfare of a child, family or household member's life or health.
An order of protection is for the benefit of the victim and not a form of punishment for the crime. The primary intent of the Criminal Procedure Law dealing with orders of protection is to protect victims and to encourage their cooperation with law enforcement. To achieve this objective, an order of protection may require the defendant to stay away form the victim and to refrain from harassing the victim, in addition to any other conditions that reasonably relate to the protection of the victim. People v. Coleman, 2006 NY Slip Op. 26084 (Kings County 2006)
The difference between a full order of protection and a limited order of protection is the degree of contact a defendant may have with the alleged victim. With a full order of protection, the defendant is prohibited from having any contact whatsoever with the alleged victim, even to the extent of requiring the defendant to quit his or her home. With a limited order of protection, the defendant may remain in contact and live with the alleged victim, but must refrain from harassing, threatening, menacing or otherwise intimidating the alleged victim. CPL sec. 530.12.
If, as the People allege, Defendant's conduct towards his daughter is the result of a drinking problem, such conduct is more of an illness than the result of purposeful action. If this be true, to issue a limited order of protection grounded on conduct over which Defendant has no control not only vitiates the benefit of protection for the complaining witness, but also sets up Defendant for probable incarceration for violation of such a protective order. For one thing, the People and Defendant proposed that Defendant would be restricted from returning home if he were drinking, but what if Defendant chose to drink while he remained in the home? Also, preventing Defendant from returning home after drinking is rife with challenges as to whether he would or would not violate the proscriptions against harassing or menacing the alleged victim.
Drinking, standing on its own in the context of family offenses (as opposed to violations of drinking while driving or drinking in public), does not constitute criminal conduct. Courts have consistently held that protective orders may not be issued with conditions that impinge upon Constitutional rights unless there is a clear showing that such conduct threatens, menaces or harasses the alleged victim for whose protection the order is authorized. Roofeh v. Roofeh, 138 Misc 2d 889, 525 NYS2d 765 (Nassau County 1988) [request for an order of protection based on a spouse's smoking cigarettes in the presence of the other spouse and their children denied because cigarette smoking is not a crime or violation of the Penal Law and does not constitute harassment, menace, reckless endangerment or assault on other family members]; Adams v. Tersillo, 245 AD2d 446, 666 NYS2d 203 (2nd Dept. 1997) [protective order prohibiting parents from making derogatory statements about each other in the presence of their children was declared invalid as being a prior restraint on speech and being too broad]. For these same reasons, this court cannot, in good conscience, prohibit Defendant from exercising his right to drink alcohol without proof that such conduct threatens, menaces or harassed the complaining witness.
On the other hand, courts have held that attendance at a domestic violence program may be a proper exercise of a court's discretion in authorizing a protective order in criminal actions between family members. People v. Bongiovanni, 183 Misc 2d 104, 701 NYS2d 613 (Kings County 1999). Further, New York courts have traditionally viewed attendance at behavioral modification classes to be legitimate conditions of bail, Halikipoulos v. Dillion, 139 F. Supp. 2d 2001 (E.D.NY 2001), even to the extent of holding that, as a bail condition, a defendant may be required to enroll in an alcohol rehabilitation program. People v. Moquin, 134 AD2d 764, 521 NYS2d 580 (3rd Dept. 1987) [defendant was charged, inter alia, with operating a motor vehicle while under the influence]. However, in the instant case, no request was made to condition the protective order on Defendant's enrollment in an alcohol treatment program, which the court might have been willing to do had some connection been demonstrated between Defendant's alleged drinking and his alleged conduct towards his daughter.
The instant complaint contains no allegation that Defendant's conduct was occasioned by his drinking; such assertion was made by the People after meeting with the alleged victim and her mother. This court refuses to act as a surrogate sentinel or to limit a defendant's Constitutional rights that, on the face of the papers presented, bear no relation to the criminal charges which brought him before the court. For this reason, the court refused to condition a limited order of protection on Defendant's not drinking during the term of its enforcement.
This constitutes the decision of the court.