Opinion
XX/10.
Decided May 4, 2010.
Chris Daniele, Assistant District Attorney, for plaintiff.
Thomas Gallivan, Esq. for defendant.
The defendant was charged with Assault in the Third Degree, (PL 120.00(1)) in that, on March 26th 2010, he allegedly repeatedly shoved his fiancée against their apartment wall "by placing his left forearm behind her neck while pushing her head, face first into the wall causing the victim to sustain a bloody lip, abrasions to her chin and above her left eye."
A neighbor stated in her supporting deposition that the victim, who said, "O my God my face" ( sic), was bleeding from inside her mouth with blood dripping from her lips. The victim did not sign a supporting deposition.
The court issued a family offense temporary order of protection pursuant to CPL 530.12 (1) (a) ordering the defendant, among other things, to stay away from his fiancée and from her home, school and place of business or employment.
Defense counsel advised the court on April 27, 2010 that a wedding was set for May 12, 2010, The defendant is therefore seeking to be relieved from the stay-away provision. Counsel represents that his defendant's fiancée also wants the stay-away provision to be removed for the same reason. The People oppose the application.
In determining whether to impose a stay — away provision, the statute mandates that the court consider,
"whether the temporary order of protection is likely to achieve its purpose in the absence of such a condition, conduct subject to prior orders of protection, prior incidents of abuse, past or present injury, threats, drug or alcohol abuse, and access to weapons. ( Ibid).
The only mandated consideration applicable here is whether the temporary order of protection is likely to achieve its purpose in the absence of the stay-away provision. The statements in the information and supporting deposition are serious and certainly warranted issuing an order of protection with a stay-away provision when the defendant was charged.
The question is whether the order of protection will continue to achieve its purpose without the stay-away provision. The purpose of the order of protection is, simply stated, to protect the alleged victim. Will the victim be adequately protected if the stay-away is lifted?
The court is not aware of any remedial program that the defendant is following to address the allegations in the information. The only new element is the disclosure of a weddingdate. But that expectation does not lessen the risk of harm.
The wedding could be postponed, but defense counsel has pointed to the substantial planning, expense and attendance by out-of-town guests. The defendant and his fiancée, though, were aware of the impediment as the wedding day approached and continued with their plans in spite of it without any indication that the stay-away would be lifted.
The defendant and the victim may be upset if their plans to marry are delayed by the stay-away being in place. But the order of protection is intended to protect the victim from potential harm even if she is not averse to the risk.
Absent some countervailing circumstance not present here, removal of the stay-away cannot be justified.
Accordingly, the application is denied.