Opinion
December 4, 1998
Keith A. Lavallee, Freeport (Joseph Lilly of counsel), for defendant.
Denis E. Dillon, District Attorney of Nassau County, Hempstead (Robert I. Satran of counsel), for plaintiff.
OPINION OF THE COURT
DECISION UPON MOTION
Defendant's motion challenges the constitutionality of CPL §§ 530.12 and 530.13, arguing that the failure of these statutes to provide for an adversarial evidentiary hearing — at defendant's request — before a temporary order of protection is issued or continued deprives defendant and other similarly situated of due process guarantees of the Fifth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 6 of the state Constitution.
This Court finds that CPL §§ 530.12 and 530.13 are constitutional as written and violate neither Constitution. Defendant has offered nothing to show that CPL § 530.13 as applied to him is unconstitutional. He rather argues that the statute itself and by implication, § 530.12, are unconstitutional on their face, citing People v. Forman, 145 Misc. 115[145 MISC.2d 115, 545 N.Y.S.2d 755 (N.Y.C. Cr. Ct. 1989), People v. Faieta, 109 Misc.2d 841, 440 N.Y.S.2d 1007 (Dist.Ct. Nass. Cty. 1981); People v. Derisi, 110 Misc.2d 718, 442 N.Y.S.2d 908 (Dist.Ct. Suf. Cty. 1981).
FACTS
When defendant was arraigned in this court on August 25, 1998, on a single count of aggravated harassment in the second degree, two separate non-family offense orders of protection were issued pursuant to CPL § 530.13. Both were full stay-away orders protecting four named individuals. The matter was marked for conference and adjourned for two days, at which time the defendant requested a hearing to test the legality of the orders. When the matter was adjourned to this Court, the People withdrew their prior consent and objected to holding the hearing, arguing that defendant did not have a right to an evidentiary hearing solely at his request. The matter was thereupon adjourned for submission of memoranda of law.
STANDING
Before a determination can be made that a statute violates the Due Process Clause, the moving party must establish standing: does there exist a sufficient "life, liberty or property" interest affected by the statute or government action which would trigger due process protection? See generally, Daniels v. Williams, 474 U.S. 327 (1986); Davidson v. Cannon, 474 U.S. 344 (1986). Orders of protection impact upon the right to use and enjoy a domicile and can impact upon relations with persons neither witnesses nor victims of the crimes alleged. Both CPL sections can impact on a license to carry, possess, repair or sell firearms, potentially having a significant impact on a defendant's legitimate professional or business pursuits.
The Court finds that CPL §§ 530.12 and 530.13 do sufficiently impact liberty or property interests so as to trigger due process protection and analysis. Chrisley v. Morin, 126 A.D.2d 977, 511 N.Y.S.2d 753 (4th Dept. 1987), app. dism. without opp. 69 N.Y.2d 1037; Suffolk Sanitary Corp. v. Town Board of Brookhaven, 84 Misc.2d 373, 375 N.Y.S.2d 740 (Dist.Ct. Suf. Cty. 1975); Brown v. Murphy, 34 Misc.2d 151, 224 N.Y.S.2d 423 (1962).
While the orders of protection in this case were issued under CPL § 530.13, cases cited by defendant were all decided under the provision for family offenses, CPL § 530.12. The liberty and property interests, however, are identical for both CPL sections. Considering the similarity in the intent of the legislature enacting the statutes, the constitutionality of both statutes are considered in this opinion.
WHICH PROCESS IS DUE?
In determining the applicability of the Due Process Clause, the US Supreme Court first asks whether the asserted individual interests are encompassed within the Fourteenth Amendment's protection of life, liberty or property. If protected interests are implicated, the court then decides what procedures constitute due process of law: substantive or procedural. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401 (1977).
Under substantive due process analysis, courts will strictly scrutinize a statute or other government action and requires that a showing of compelling interests in its deliberate acts — whether legislative, executive or judicial — that purposely affect fundamental rights of individuals. See, generally, Bowers v. Hardwick, 487 U.S. 186, 106 S.Ct. 2841 (1986).
Even government actions that survive this scrutiny must still withstand procedural due process analysis. Matthews v. Eldrige, 424 U.S. 319, 96 S.Ct. 893 (1976). Here, if government action or statute impacts citizens as a function of the way that government is expected to act, then only the manner in which the government is exercising its lawful duty will be analyzed. To satisfy constitutional requirements, the statute or government action must have a real and substantial relation to the subject to be obtained and the methods to obtain that subject must not be unreasonable, arbitrary nor capricious. Nebbia v. New York, 291 U.S. 502, 54 S.Ct. 505 (1934).
The legislative intent of the statutes in question must be determined in deciding which analysis is required. US v. Salerno, 481 U.S. 739, 107 S.Ct. 2095 (1987).
The statutory authorization for a local criminal court's issuance of a family offense temporary order of protection pursuant to CPL § 530.12 arose from Assembly Bill 8842 of 1977, which became law on July 19 of that year. The bill amended the Domestic Relations Law by adding § 252, provided for the authority of the Supreme Court to issue temporary orders of protection in matrimonial proceedings and extensively revised Article 8 of the Family Court Act to provide for the issuance of temporary orders of protection in the Family and Criminal Courts.
This came about because complaining witnesses in family courts were withdrawing complaints and giving up because they had to return to court "endlessly" to obtain relief from abusers. Domestic violence tends to escalate over time and a victim's frustration with Family Court procedures was encouraging abusers. The temporary order of protection was necessary in all three courts so that the abused victim would not have to forego the protection by choice of forum. The bill gave the family court and the criminal court concurrent jurisdiction over any proceeding concerning acts which would constitute disorderly conduct, harassment, menacing, reckless endangerment, assault or attempted assault between spouses, parents and child or between members of the same family or household.
In 1981, the Legislature added CPL § 530.13 amending the Criminal Procedure Law to allow for orders of protection to be issued by local criminal courts to the victims of crimes other than those committed upon family members. The order would be issued upon good cause shown. In 1986, the Legislature amended CPL § 530.13 to add witnesses to the list of those who could seek the protection of a temporary order of protection. The memoranda in support of this legislation indicate that the legislation was necessary in response to legislative findings that victim and witness intimidation by defendants released on bail or on their own recognizance was a significant problem for prosecutors.
The right of a local criminal court to issue temporary orders of protection was again revisited by the Legislature in 1994 with the passage of the Family Protection and Domestic Violence Intervention Act. According to its' committee reports, the purpose of the statute was to further "integrate the purposes of the family and criminal laws to assure clear and certain standards of protection for New York's families consistent with the interest of fairness and substantial justice." The act provided that the victims of domestic violence no longer must choose between the family and criminal courts to seek redress and relief from their abusers. The act was strongly supported in the Senate and Assembly and was passed in response to, among other things, research that indicated that one of the major problems contributing to the recurrence of domestic violence was the lack of aggressive enforcement by law enforcement officials. N.Y.L.J. 11/6/98 at 2. The Act also amended the Family Court Act and Domestic Relations Law by allowing a local criminal court to issue a temporary order of protection on matters that would be returned to Family Court or Supreme Court when those courts were not in session. This act also strengthened the temporary order of protection by providing for mandatory arrests for a violation thereof. In 1997, CPL § 530.12 and § 530.13 were again amended by the Legislature, this time to provide for the issuance of a temporary order of protection where the defendant charged in a criminal court had failed to appear and a bench warrant had to be issued for his arrest.
Here, generally, procedural due process analysis is all that is required. A statute enacted under the state's police power whose effect — but not purpose — is to curtail the liberty of individuals to live their lives must bear a reasonable relationship, and some proportion to, the alleged public good which justifies the restriction of individual liberty. Fenster v. Leary, 20 N.Y.2d 309, 282 N.Y.S.2d 739 (1969). Protection of the health and safety of the public is a paramount government interest which justifies summary administrative action. Hodel v. Virginia Surface Mining and Reclimation Associates, 452 U.S. 264, 101 S.Ct. 2352 (1981).
Even statutes that take away individuals' right to freedom and subject them to pre-trial incarceration have been found to be regulatory and not penal in nature, requiring only a procedural, rather than substantive, due process analysis. United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095 (1987).
CPL §§ 530.12 and 530.13 and their sister statutes governing temporary orders of protection in Supreme Court and Family Court involve no finding of wrong-doing and, as indicated above, are not meant to punish but rather to protect.
BURDEN OF PROOF AND SCOPE OF INQUIRY
Regardless of whether the court proceeds under a procedural or a substantive due process analysis, the party challenging the facial constitutionality of a state statute bears a heavy burden of proof. Wood v. Irving, 85 N.Y.2d 238, 623 N.Y.S.2d 824 (1995). The challenger must establish the unconstitutionality of the statute beyond a reasonable doubt. McKinney's Statutes § 150(a); Schultz Management et al. v. Board of Standards and Appeals of the City of New York, 64 N.Y.2d 1057, 489 N.Y.S.2d 902 (1985).
In determining the constitutionality of a local law, it must be presumed by the Court of first instance that the legislative body had investigated and found the existence of a situation or situations showing or indicating the need or desirability of the law in question. A statute will only be struck down as unconstitutional as a last unavoidable resort. Estate of Smith, 118 Misc.2d 165, 416 N.Y.S.2d 441 (1983).
Legislative enactments are imbued with a strong presumption of constitutionality and will not be held unconstitutional unless the party asserting such argument meets its heavy burden of proving the infirmity beyond a reasonable doubt. People v. Pagnotta, 25 N.Y.2d 333, 305 N.Y.S.2d 484 (1969); People v. Portnoy, 140 Misc.2d 945, 535 N.Y.S.2d 305 (1988); McKinney's Constitution, Rules of Interpretation, pp. 43, 46. It is well settled that a court of first impression should not ordinarily set aside a legislative enactment unless such conclusion in inescapable. People v. Portnoy, supra, at 947.
A court, in interpreting a statute, should attempt to effectuate the attempt of the legislature and is not free to legislate. Matter of Raritan Development Corp. v. Silva, 91 N.Y.2d 98, 667 N.Y.S.2d 98, 667 N.Y.S.2d 327 (1997). See also Pajak v. Pajak, 56 N.Y.2d 394, 452 N.Y.S.2d 381 (1982), wherein the Court of Appeals held that the right to a divorce is statutorily created and since § 170 of the Domestic Relations Law did not provide for a defense to an action for divorce except upon the grounds of adultery, no defense could be offered to prevent plaintiffs claims of a right to a divorce on the grounds of cruel and inhuman treatment. "The failure of the legislature to provide that mental illness is a valid defense and an action for a divorce based on the grounds of cruel and inhuman treatment must be viewed as a matter of legislative design. Any other construction of the statute would amount to judicial legislation."
THE PROCESS THAT IS DUE
The essence of due process is notice and a meaningful opportunity to be heard. A full evidentiary hearing is not automatically required to satisfy constitutional due process. Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976). Gross v. Lopez, 419 U.S. 565, 95 S.Ct. 729 (1975); Parham v. J.R., et al., 442 U.S. 584, 99 S.Ct. 2493 (1979); Lenihan v. City of New York, 636 F. Supp. 998 (SDNY 1985). A hearing is not required in every conceivable case of government impairment of a private interest. Economico v. Village of Pelham, 50 N.Y.2d 120, 428 N.Y.S.2d 213 (1980); Knutsen v. Bolas, 114 Misc.2d 130, 452 N.Y.S.2d 134 (S.Ct. N Y County 1982).
It is also settled that the defendant does not have a statutory nor constitutional right to confront his accuser prior to trial. People v. Hayday, 144 A.D.2d 107, 534 N.Y.S.2d 521 (3d Dept. 1988); McKinney's Const. Art. 1, Section 6, USC.A. Const. Amend. 6. Clearly the legislature's intent was not to punish the subject of the temporary order of protection, but rather to protect the victims of domestic violence and victims and witnesses of crimes and their families. The state has a legitimate and significant interest in doing so and the statutes in question are reasonably related to these lawful and proper objectives. Just as importantly, the procedures available to a defendant who is the subject of the temporary orders of protection issued pursuant to these statutes are more than adequate to protect against an erroneous temporary deprivation of a liberty or property interest.
The temporary order of protection is issued in coordination with the bail hearing held pursuant to CPL § 530.10 wherein the defendant is present and represented by counsel. A defendant held on bail or remanded has a statutory right to review the legality of that bail and necessarily the issuance of the temporary order of protection which is a condition of that bail in a superior court pursuant to CPL § 530.30. At such bail hearings, defendant has a right to present evidence and the court in its discretion can order an evidentiary hearing if one is required. CPLR § 2218; Korn v. Korn, supra.
It is worthy of note that New York's bail statutes here have already withstood constitutional attack. Bellamy v. The Judges and Justices of New York, 41 A.D.2d 196, 342 N.Y.S.2d 137 (1st Dept. 1973), aff's without opn. 32 N.Y.2d 886, 346 N.Y.S.2d 812. The order can be vacated or modified by way of motion or order to show cause, both of which include the court's inherent right to order an evidentiary hearing if required. The statutes themselves provide flexibility to limit their impact upon those who are subject to the order.
The orders can be modified to allow for the defendant, with supervision, to return to the household to obtain personal or business belongings. The statutes provide for a modification to lessen the impact of the effect of the deprivation on familial relationships by allowing courts of competent jurisdiction to provide for visitation with children by one who is subject to a temporary order of protection issued in a local criminal court.
The temporary order of protection is automatically limited by the speedy trial limitations provided for the underlying penal law charge. Specifically, for a felony, six months; for an A Misdemeanor 90 days; for a B Misdemeanor 60 days; and for a violation 30 days. CPL § 30.30(a)(b)(c)(d).
PROCESS IN OTHER COURTS
As part of its determination that the statutes in question comply with due process mandates, this court has considered the procedures in other courts. Specifically, § 828 Fam. Ct. Act of the Family Court Act provides for the issuance of a temporary order of protection upon good cause shown. While the court should make a full inquiry, no evidentiary hearing is required for the asking. FCA §§ 821(a), 822, 828, Practice Commentary by Douglas J. Besharov; Owre v. Owre, 60 A.D.2d 604, 400 N.Y.S.2d 131 (2d Dept. 1977). Respondent in a family offense petition has no automatic right to subject the petitioner to an examination before trial. Kunz v. Kunz, 119 Misc.2d 80, 462 N.Y.S.2d 559 (Fam.Ct. Nass. Cty., J. Diamond 1983). Further, the Appellate Division has the discretionary right to review a temporary order of protection issued in Family Court. FCA § 1112, Firestone v. Firestone, 44 A.D.2d 671, 354 N.Y.S.2d 645 (1st Dept. 1974).
The Supreme Court may issue a temporary order or protection pursuant to Domestic Relations Law § 252 in the adjudication of matrimonial actions. "Despite the absence of explicit language covering the standards to be employed in granting orders of protection and the terms of such orders, it would appear that the substantive law to be applied is that supplied by Article 8 of the Family Court Act." DRL § 252, Practice Commentaries by Alan D. Scheinkman. The Appellate Division, Second Division, has determined that in order to issue a temporary order of protection, the Supreme Court does not automatically have to provide an evidentiary hearing. Peters v. Peters, 100 A.D.2d 900, 474 N.Y.S.2d 785 (2d Dept. 1984). When the woman's allegations of abuse are corroborated by affidavits, medical or documentary proof, the court does not need a hearing to grant an order of protection.
Victims of domestic violence should expect to be treated equally in the Supreme, Family or District Courts. Those who are the subject of the temporary order of protection should also expect equal protection of the laws in all three courts. The similarity in procedures afforded in these courts further support the court's finding of constitutionality of the statutes in question. Similarity in treatment of litigants in the different courts is also required in addressing the societal problem of domestic violence considering the concurrent jurisdiction of the courts. CPL § 530 subd. 11, 12, 13, FCA § 812; DRL § 240, 252.
DEFENDANT'S LEGAL ARGUMENT
The three cases offered by defendant are unpersuasive. In People v. Derisi, 110 Misc.2d 718, 442 N.Y.S.2d 908 (D.Ct. Suff. Cty. 1981), the court found, relying on CPL § 510.20, that a continuance of a temporary order of protection issued pursuant to CPL § 530.12 is not valid unless the defendant is given an opportunity to be heard, which is the equivalent of a hearing. As indicated above, a defendant's right to be heard is not a right to an evidentiary hearing.
The defendant also offers People v. Faieta, 109 Misc.2d 841, 440 N.Y.S.2d 1007 (Dist.Ct. Nass. Cty. 1981) which finds CPL § 530.12 to be constitutional and denied that portion of defendant's motion seeking a declaration that the statute was unconstitutional for not providing an evidentiary hearing upon request. The court in Faieta, however, did provide an evidentiary hearing after motion by way of order to show cause. The Faieta court found that because the defendant can challenge the continuance of the temporary order of protection by way of motion or order to show cause, and because both these procedures contained the "inherent judicial" right to order a hearing, that the procedures available sufficiently protected the defendant's right to due process. This Court agrees.
The case which is most often cited as a basis for the right to an evidentiary hearing before a temporary order of protection can be continued, at least herein the District Court of Nassau County, is People v. Foreman, 145 Misc.2d 115, 546 N.Y.S.2d 755 (N.Y.C. Crim. Ct. 1989). Foreman appears to find CPL § 530.12 unconstitutional for its failure to provide a prompt evidentiary hearing. The case is not good law for a number of reasons. First, the court ignored the defendant's burden of proof and the limitation on the court's ability to strike a statute as unconstitutional. "There is a simple, but well-founded, presumption that an act of a legislature is constitutional and that this presumption can be only upset by proof persuasive beyond a reasonable doubt." (Citations omitted). There is no indication in the Foreman decision that this presumption of validity was given any effect or even recognized. See generally, Hotel Dorset Company v. Trust for Cultural Resources of New York City, et al., 46 N.Y.2d 358, 413 N.Y.S.2d 357 (1978).
Second, the Foreman court also found that once a temporary order of protection is issued in a criminal court, "there is no opportunity to litigate a challenge to any one such order while it is still in effect." People v. Foreman, supra, at 761. This assertion is patently false and particularly puzzling considering the Foreman court acknowledges (at pg. 761) that the temporary order of protection was reissued on each adjourned date, thereby giving defendant an opportunity to be heard in opposition each and every time the case was on the court's calendar.
Third, Foreman found that Derisi and Faieta "both specifically held that defendant had the right to a post-arraignment evidentiary hearing to contest the continuance of a previously issued temporary order of protection." (at page 762). The Foreman court plainly misread Faieta. Without explaining the obvious contradiction, the Foreman court recognizes that an individual charged with a misdemeanor can be incarcerated and held on bail from 60 to 90 days without an evidentiary hearing without violating his rights to due process. Yet the same court comes to the conclusion that keeping the defendant from his home for the same speedy trial time periods does violate due process.
Fourth, the Foreman court makes no mention of the procedures followed in the Family Court or the Supreme Court for the issuance or continuance of temporary orders of protection.
Fifth, Foreman argues that CPL § 510.20 provides for a defendant's right to an evidentiary hearing upon his request to review the application for recognizance or bail. This is false. CPL § 510.20 provides for such hearing, if necessary, in the courts discretion and the constitutionality of New York state's bail statutes has already been established.
What is most disturbing about Foreman was the emphasis the court placed on a defendant's "special interest in his/her home as an enclave as personal security and privacy. . . ." People v. Foreman, supra, at 764. What the Legislature has said over the past 21 years is that the defendant's "enclave of personal security and privacy" is all too often a torture chamber for the victim of domestic violence.
Foreman determined that "being suddenly deprived of one's home, even temporarily, is a traumatic experience." (At page 764). On the date of the incident that lead to the issuing of the order of protection, defendant had punched his wife in the mouth, knocking out a tooth. A year earlier he had pushed her to the floor, breaking her ankle and then caused her to walk on her ankle while he threw books at her. After the order of protection was issued, he called her on the phone advising her that he was coming to see her with a gun.
The Foreman decision substituted that Court's personal view of fairness for established law. It avoided constitutional analysis of the statute yet indirectly called the statute unconstitutional. The injustice of such decision making to Mrs. Foreman, and to society generally, is obvious.
Defendant's motion for an evidentiary hearing to contest the continuance of the temporary order of protection based on the unconstitutionality of § 530.12 and § 530.13 is denied.
The statutes are constitutional as written.