Opinion
Docket No. CR-003300-24BX
03-04-2024
The People of the State of New York, v. Rochelle Rivas, Defendant.
Defendant by Matthew S. Bruno, Esq., The Bronx Defenders. People by A.D.A. Tahmel Morton, Esq., Bronx County District Attorney's Office
Defendant by Matthew S. Bruno, Esq., The Bronx Defenders.
People by A.D.A. Tahmel Morton, Esq., Bronx County District Attorney's Office
Anna Mikhaleva, J.
On February 6, 2024, the defendant, Rochelle Rivas, was arraigned in Bronx Criminal Court on charges of NY Penal Law 120.14(1), 265.01(2), 110/120.00(1), 120.15, and 240.26(1), and a full "stay away" temporary order of protection ("TOP") was issued in favor of the complaining witness, who is the defendant's mother. The complaining witness and the defendant have resided in the same apartment since February of last year, together with the defendant's minor daughter and the defendant's sister. Because the defendant was forced to leave the home that she shares with her mother when the full TOP was issued, she requested a hearing pursuant to Crawford v Ally, 197 A.D.3d 27 (1st Dept 2021) to determine the appropriateness and scope of that order. A hearing was held on February 9, 2024, on notice to all parties. Having now heard the evidence presented, and after considering the arguments raised by both sides, the Court modifies the "full" TOP to a "limited" TOP for reasons that are explained below.
Pursuant to Crawford v Ally, there must be an "articulated reasonable basis for [the] issuance" of a TOP that deprives a defendant of "significant liberty and property interests" (197 A.D.3d at 33). In determining whether a TOP should be issued, the court must consider not simply whether the defendant poses a "danger of intimidation or injury" to the complainant (id., citing People v Forman, 145 Misc.2d 115, 125 [Crim Ct NY County 1989]), but must also consider the non-exhaustive list of factors set forth in CPL 530.12[1][a], Protection for Victims of Family Offenses. That section provides that in a pending criminal action between family members such as, e.g. here, a parent and a child, the court "shall consider but shall not be limited to consideration of, 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" (CPL 530.12[1][a]).
As an initial matter, the court finds that the defendant has met her burden of demonstrating at the Crawford hearing that the full "stay away" TOP deprived her of a significant property interest by establishing that she has lived in the same apartment as her mother, sister and daughter since February of the prior year, that she has paid $419/month towards the rent of that apartment, and that her minor daughter attends school near this apartment. An apartment rental application produced by the People lists the defendant, her daughter, and her sister as joint occupants of the subject apartment with the complaining witness.
Although the defendant was unable to produce a copy of her lease to demonstrate that she is on that lease with the complaining witness, the People likewise failed to produce a copy of the lease to demonstrate that defendant was not on the lease, as they contend.
Having established a relevant significant property interest, the burden shifts to the People to establish an articulated reasonable basis for the continued issuance of a full TOP in this matter (People v Riley, 78 Misc.3d 327, 328-29, 2023 NY Slip Op 23012 [Crim Court Bronx Cnty January 17, 2023], citing Crawford, supra). The People contend that the complaining witness is in fear for her safety and that a full TOP is necessary to ensure her safety. At the hearing, the People provided the complaining witness's supporting deposition, attesting to the facts alleged in the complaint, a New York City Housing Authority Voucher issued to the complaining witness, and the aforementioned rental application. The People did not produce any witnesses or any other relevant evidence such as, for example, any prior Domestic Incident Reports (DIRs) despite their claim that the DIRs would support their position and demonstrate that the defendant poses a threat to the complaining witness. The People maintain that modifying the full TOP is unnecessary because defendant has been able to stay with an aunt who rents rooms in her apartment, and that, therefore, it is not a burden on the defendant to continue to do so.
The court provided the parties with an opportunity to submit additional papers following the hearing, which both sides did. However, rather than submit the DIRs that were not produced at the hearing, the People only made reference to them without actually producing a single DIR as proof. Having twice failed to produce what the People claim is relevant documentary evidence, the Court declines to further delay this proceeding by extending the time for the People to do so.
According to defense counsel, however, defendant and her minor daughter were only permitted to temporarily stay with the aunt, on her couch, and are no longer able to do so. In addition, as a result of the defendant being barred from her home, the defendant and her minor daughter have been commuting to the minor daughter's school an hour and ten minutes by bus each day from the aunt's house whereas the child was previously able to walk to school approximately six minutes from the parties' apartment. Changing schools in the middle of an academic year would be disruptive for the minor child.
Defendant's sister, Kathleen Rivas, also testified on defendant's behalf. According to Ms. Rivas, the complaining witness - their mother - has experienced mental health issues and previously made similar allegations against her and the defendant in 2021, when Ms. Rivas and her siblings attempted to have the complaining witness obtain treatment. Although an order of protection was generated against the defendant at that time, that case was ultimately dismissed and sealed. Ms. Rivas testified that she and the defendant have both resided in the apartment with their mother from the beginning of its lease, that they each pay $419/month towards the monthly rent, and that it was her belief that the defendant is on the lease with the complaining witness. Ms. Rivas acknowledged that she was not present to witness the incident in question and that the complaining witness had recently also asked her to move out of the apartment.
Based on the foregoing, defense argues that modification of the full TOP is necessary as defendant does not pose an actual danger to the complaining witness.
Under the facts presented in this case, the Court finds that the People fail to establish an articulated reasonable basis for the continued issuance of a full TOP, and finds, after careful consideration of the factors enumerated in CPL 530.12, that a limited TOP would achieve its purpose. In reaching this conclusion, the court takes into account that defendant currently has no known drug or alcohol abuse, no access to weapons, and that the only prior order of protection issued against the defendant ultimately ended in an order of dismissal and sealing. There are no prior convictions or arrests listed in the defendant's New York fingerprint response summary, and while the defendant has had prior contacts with the criminal justice system in the state of New Jersey, those contacts date back to 2009 to 2015, when she was between 14 and 20 years old. In the nine years since then, the defendant has had a child, obtained stable employment and has had no known convictions in New Jersey or elsewhere. The defendant's New York 2021 case involving the complaining witness resulted in dismissal, and although the People argue that the court should take the existence of that dismissed matter as proof that the defendant poses a risk to the complaining witness, they submit nothing by way of proof to substantiate their allegations (such as, e.g., any DIRs). Based on all the foregoing, the Court finds that the People have failed to establish an articulated basis for the issuance of a full "stay away" TOP, and having considered the factors enumerated in CPLR 530.12, finds that a limited TOP would achieve its purpose.
Accordingly, it is ORDERED that the previously issued Temporary Order of Protection is modified to a limited Temporary Order of Protection.