Opinion
Docket No. CR-021566-22BX
02-08-2023
The People of the State of New York, v. Vernon Simmons, Defendant.
ADA Jillian Kennedy, Office of the Bronx District Attorney, for the People. Fatima Youssef, Esq., The Bronx Defenders, for the Defendant.
ADA Jillian Kennedy, Office of the Bronx District Attorney, for the People.
Fatima Youssef, Esq., The Bronx Defenders, for the Defendant.
AUDREY E. STONE, J.C.C.
Defendant is charged with Criminal Obstruction of Breathing or Blood Circulation and Harassment in the Second Degree after an alleged assault against his wife. At his arraignment on November 29, 2022, a full, temporary order of protection was issued which prohibited Defendant from having any contact with the complainant. Pursuant to Crawford v Ally, Defendant moved for an evidentiary hearing to modify the full temporary order of protection, asserting that because Defendant owns the home from which he was prohibited from residing, issuance of the full order of protection presented "an immediate and significant deprivation of a substantial personal or property interest." (Crawford v Ally, 197 A.D.3d 27, 33 [1st Dep't 2021]). The Court scheduled a prompt hearing.
At the hearing held on December 12, 2022, the prosecutor filed a supporting deposition converting the criminal court complaint to an information. As the People initially had moved for the full temporary order of protection pursuant to CPL § 530.12, the Court proceeded first to hear the People's application to continue the stay-away provision.
Initially, the People conceded the existence of Defendant's property interest in the jointly-owned home in which both he and the complainant have resided for fifteen years. Then, over Defendant's objection, the court permitted the People to introduce into evidence three documents: screenshots of text messages (Exhibit 1); a cell phone call log (Exhibit 2); and a scratch domestic incident report ("DIR") from the charged incident (Exhibit 3).
As set forth in the DIR and supplemented by the prosecutor, the charged incident allegedly began when the complainant asked Defendant for the keys to her car. Defendant then "went crazy," grabbed the complainant and tightened her scarf around her neck, which caused her to have trouble breathing. The complainant got away from Defendant and called 911, while Defendant called his sisters and niece to come to the residence to "kick her out." The DIR documented the complainant's report of pain and swelling to her throat and noted that officers observed that she had red eyes and visible marks.
The text message screenshots introduced in evidence as Exhibit 1 demonstrated that after Defendant was arraigned and the TOP was issued, his adult daughter (from another relationship) contacted his wife concerning the parameters of the TOP, as follows:
His lawyer and judge said he can return to the house. He was just instructed to have no verbal communication, text messages, or phone, and he stays in his space and you --- he was advised to have a third party to reach to speak to a key. That's the part I am doing now...You stay in yours when in the house. Basically staying away from one another. If you are both in the house with one another, because he is the owner, he is allowed to return and those were the stipulations delivered. Is there something else? I can get his lawyer's information if you need to verify or contact DA, then please.(Transcript of December 12, 2022 hearing, hereinafter "Tr," pp. 5-6). The telephone call log displaying Defendant's number introduced into evidence as Exhibit 2 demonstrated that Defendant contacted the parties' son about allowing Defendant back into the home.
Additionally, the People informed the court that during the prosecutor's discussions with her, complainant had disclosed to the prosecutor a history of unreported violence against her by Defendant, throughout their twenty-three-year relationship. The prosecutor stated that Defendant's conduct involved emotional, verbal, and financial abuse with only limited physical altercations including grabbing, shaking, and yelling at the complainant. (Tr, pp. 16-17).
The People argued that because of the charged incident and the history of unreported abuse by Defendant, the complainant felt very fearful of having further contact with him; and as a result of the third party contact after arraignment, she felt confused, intimidated, and afraid that the court would let him return to the home. The prosecutor insisted that the complainant and the People were adamant about maintaining the full temporary order with a stay-away provision.
Defendant opposed the continuation of the full order and moved the court to modify the TOP to permit him to return to the shared home. With no objection, the court permitted counsel to introduce into evidence proof of Defendant's property interest in the marital residence by the deed for the premises and a mortgage, both of which named Defendant and the complainant as co-owners (Defendant's Exhibits B and A, respectively). Counsel maintained that Defendant had fully abided by the TOP without returning to the residence, and that the third-party contact from his family was an attempt to clarify the living arrangements since they believed the complainant did not reside any longer in the residence. (Tr, pp. 25-28).
Defendant contended that the People had not met their burden of proof of the factors under CPL § 530.12 [1][a][1]. In objecting to the admissibility of the People's exhibits, Defendant had argued that the People were required to authenticate Exhibits 1 and 2 - the text message screenshots and the telephone call log - by laying an evidentiary foundation through witness testimony. (Tr, pp. 4-5). Defendant had also objected to the admissibility of Exhibit 3 - the DIR - on the grounds that, pursuant to People v Anonymous, 76 Misc.3d 1022 [Crim Ct Bronx County 2022], DIRs were required to be construed as sealed unless a conviction resulted from the incident. (Tr pp. 15, 29).
Addressing the CPL § 530.12 [1] factors, Defendant argued that the court had no evidence of a history of abuse by Defendant against the complainant because there were no prior police reports; no evidence of drug or alcohol use by Defendant; no access to weapons; and because the court should not consider the DIR in its determination, there was no evidence of present injury from the alleged obstruction of her breathing. (Tr, pp. 19-20). Defendant pointed out that the house was large enough that both parties could live there without having contact. Finally, Defendant argued that Defendant's significant property interest and his likely housing instability caused by a full order compelled modification of the TOP. (Tr, p. 31). The Court found that based upon the present injury, the interference by Defendant and his family with the court's orders, and the complainant's report of past abuse, a full order was warranted. Particularly persuasive to the Court was the allegation of strangulation corroborated by the complainant's sworn deposition. Studies demonstrate that acts of strangulation can be a pre-cursor to more lethal conduct in the context of intimate partner violence.
(Nancy Glass, et al., Non-fatal strangulation is an important risk factor for homicide of women, J Emerg Med. 2008 Oct; 35(3): 329-335 [online version: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2573025/).
Following this initial determination, the Court set repeated short adjournments to monitor whether continuance of a full temporary order of protection would be required to achieve its purpose. (CPL § 530.12 [1][a][1]). This procedure recognizes that throughout the pendency of domestic violence cases - and the relationships therein - the risk of harm to the complainant is dynamic, not fixed or static, and variable depending on the release conditions imposed. (See, Brittany Davis, Compliance Monitoring in Domestic Violence Cases: A Guide for Courts, Center for Court Innovation, 2019; Assessing Risk for Domestic Violence: A Pilot in New York, Center for Court Innovation, 2012). Throughout this time, Defendant complied with all pre-trial conditions set by the court and there were no reported incidents of protective order violations. Defendant voluntarily entered a domestic violence program and the complainant was offered crime victim services. Accounting for the evolving relationship dynamics at play, on February 1, 2023, approximately six weeks after issuing a full order of protection, the Court exercised its authority to modify the TOP and permitted Defendant to reside in the joint marital residence. The amended TOP contained the proviso that Defendant have no contact with the complainant, in person or electronic, or through third parties on his behalf.
https://www.innovatingjustice.org/sites/default/files/media/document/2021/Guide_Compliance_07082021.pdf
As the defense objected to the form and content of the court's initial hearing, the Court now issues the following legal decision in support of its rulings and determinations.
Background: The Family Protection and Domestic Violence Intervention Act of 1994
The Family Protection and Domestic Violence Intervention Act of 1994 (hereinafter "DVIA") is the statutory scheme governing the issuance of TOPs in family offenses. Courts have been authorized to issue such TOPs since passage of the Family Court Act in 1962. Statutory authority for such orders now exists in a myriad of criminal, matrimonial, and family court proceedings, continuing to evolve via a "patchwork" of statutes and amendments made virtually every year since.
See, e.g., FCA § 828 (1962); DRL § 252 (1977); CPL § 530.12 (1977), with continuous amendments since then (Peter Preiser, McKinney's Practice Commentaries, CPL § 30.11 et seq.; People v Koertge, 182 Misc.2d 183, 186-87 [Dist Ct Nassau County 1998]))
As a statute enacted under the legislative police power to secure the health and safety of the public, the paramount public purpose of the DVIA is protection of families from domestic violence. The legislation promoted the immediacy of access to temporary orders of protection across court forums by authorizing concurrent jurisdiction for family offenses in criminal and family courts; and most important, granting to the criminal courts emergency powers to issue temporary family court orders of protection ("TOPs") when family courts are closed. (CPL § 530.11 [1]; People v Koertge, 182 Misc.2d, at 186-187). Consequently, when a defendant first appears in court for arraignment, the DVIA requires courts to consider the immediate need to issue a TOP as a condition of any pre-trial release or securing order issued. (see CPL §§ 170.10 [7], 530.20 - 530.40; Peter Preiser, McKinney's Practice Commentaries, CPL § 530.12 [online version]).
The Procedural Due Process Standard
The principle that an individual is entitled to some procedural protection when a significant liberty or property interest may be curtailed by government action is not a new one. (Morrissey v Brewer, 408 U.S. 471, 481 [1972] [internal citations omitted]). In Crawford v Ally, the First Department acknowledged that issuance of a TOP, like other government actions, can deprive the affected party of significant liberty or property interests, triggering procedural due process protections. (197 A.D.3d 27 [1st Dep't 2021]). Crawford held that notwithstanding the TOP's legitimate purpose of protection and its provisional nature, if a defendant alleges that a substantial personal or property interest will be adversely affected by the issuance of a TOP, a court must promptly conduct some form of an evidentiary hearing. (Crawford v Ally, 197 A.D.3d at 34). However, the Appellate Division held that it was not necessary to "articulate the precise form" of evidentiary hearing required. Instead, consistent with long-standing procedural due process jurisprudence, the First Department entrusted trial courts to protect procedural due process rights when issuing a TOP by conducting a hearing "in a manner that enables the judge to ascertain the facts necessary" to "articulate a reasoned basis" for the deprivation of the defendant's identified property right. (Id.).
While the Appellate Division deferred to trial courts in determining the type of process necessary for future proceedings, the Court gave some insight into its expectations by citing the precedent of Krimstock v Kelly, 306 F.3d 40 [2002] [warrantless seizure and retention of defendants' vehicles as instrumentalities of crime requires prompt hearing to determine probable cause therefor]). Krimstock held that "[t]here is no universal approach to satisfying the requirements of meaningful notice and opportunity to be heard in a situation such as this." (Krimstock, at 69). Declining to "dictate a specific form for prompt retention hearings" because the details relating to cost and implementation were best suited to the experience of the district court, the Second Circuit emphasized that it did "not envision the retention hearing as a forum for exhaustive evidentiary battles." (Id.).
Crawford's emphasis on flexibility in defining due process requirements is reflected throughout long-standing Supreme Court precedent. In Mathews v Eldridge, the Supreme Court analyzed the administrative procedures for termination of social security disability benefits and set out three factors to be weighed: 1) the private interest that will be affected by the official action; 2) the risk of an erroneous deprivation of such interest through the procedures used; and 3) the Government's interest, including the fiscal and administrative burdens that additional or substitute procedural requirement would entail. (424 U.S. 319, 335 [1976]). Balancing these factors, the Court held that the administrative procedures provided were sufficient to satisfy due process. (Mathews v Eldridge, 424 U.S. 319, 349). Informal hearings can protect a litigant's due process rights when facing the deprivation of a substantial right. (see, Berkeley v New York City Department of Education, 159 A.D.3d 525 [1st Dep't 2018] [decision to terminate teacher's employment supported by the record which included partial reliance on hearsay evidence]).
New York Courts have consistently held that informal evidentiary hearings can achieve due process when a litigant faces the deprivation of a significant liberty or property interest. For instance, Domestic Relations Law §§ 240 [6] and 252 incorporate procedural due process protections into determinations of temporary orders of support and custody; DRL § 234 empowers courts to award temporary exclusive possession of a marital residence to one of the parties. However, such applications are made and determined upon papers filed with the court, not witness testimony. (McKinney's Practice Commentaries, Alan D. Scheinkman, DRL § 252 [online version 2020]; Minnus v Minnu s, 63 A.D.2d 966 [2d Dep't 1978]).
Family Court Act §§ 1027 and 1028 mandate prompt hearings where a child has been removed from a parent's custody on an emergency basis for abuse or neglect pursuant to FCA § 1024. The § 1028 hearings (which temporarily deprive a respondent of a significant parental right) provide for temporary, provisional plans for placement of a child pending permanent fact-finding and dispositional hearings, and permit introduction of all evidence that is "material and relevant." (FCA § 1046 [c]). In contrast, fact-finding hearings determining the ultimate issues of child abuse or neglect, are subject to stricter evidentiary rules, limiting admissible evidence to "only competent, material, and relevant evidence." (FCA § 1046 [b][iii]). An expedited § 1028 hearing is less formal than, and not a replacement for, an ultimate fact-finding hearing, (Matter of Louie L.V., 176 A.D.3d 1081, 1082 [2d Dep't 2019]; Prof. Merrill Sobie, McKinney's Practice Commentaries FCA § 1028 [online version 2020]), and has been held sufficient to protect a parent's procedural due process rights. (Matter of Elizabeth C., 156 A.D.3d 193, 205 [2d Dep't 2017]).
The standard of proof for hearings pursuant to Corrections Law § 168 et seq. to determine a defendant's sex offender registration levels ("SORA hearing") is by clear and convincing evidence. (Corr Law § 168-n [3]). Though a SORA risk level may permanently impact an individual's constitutional right of liberty, the statute nonetheless grants defendants notice and the opportunity to be heard, and permits courts to make such determinations upon "reliable hearsay" via paper submissions and oral argument by attorneys. (Corr Law § 168-n [3]). Notably, despite the final nature of the court action under SORA, due process challenges to its procedures repeatedly have failed. (Woe v Spitzer, 571 F.Supp.2d 382 [EDNY 2008]; Doe v Cuomo, 755 F.3d 105 [2d Cir 2014]; Matter of Bush v New York State Board of Examiners of Sex Offenders, 72 A.D.3d 1078 [2d Dep't 2010]).
VTL § 1193 [2][e][7] requires courts to temporarily suspend a driver's license where an accusatory instrument conforms with CPL § 100.40 and the People provide proof of the defendant operating a motor vehicle with a blood alcohol content of.08% or more. The statute also grants to a defendant the opportunity to make a statement regarding these two issues and to present evidence tending to rebut the court's findings. (VTL § 1193 [2][e][7][a], [b]). The Court of Appeals in applying the standards of due process (the private interest at stake, the risk of an erroneous deprivation and the governmental interests) upheld the informal prompt suspension procedure set out in the vehicle traffic law. The Pringle court further observed that due to the temporary duration of the license suspension and the mitigating effects of the conditional license and hardship relief options, more elaborate procedural protections are not constitutionally mandated. (Pringle at 435).
Relying on the above due process jurisprudence, the Court must fashion a constitutionally sound procedure for the issuance of TOPs by assessing and appropriately balancing the right to protection for alleged victims of domestic violence while providing a degree of process that does not erroneously deprive a person of a substantial property right. Achieving this balance also requires the Court to balance the significant fiscal and administrative burdens on the judicial system from the volume and exigency of these applications.
The New York State Office of Court Administration ("OCA") reports that New York City Criminal Courts issued 50,983 temporary orders of protection involving family offenses in 2022. (http://inside-ucs.org/oca/ct_research/Stats%20Reports/OrdersProtection/2022Annual.pdf).
The December 12, 2022 Hearing
The Court now addresses the specific evidentiary objections raised at the instant TOP hearing and how its rulings met the goals of procedural due process protection as outlined above.
First, Defendant objected on hearsay grounds to the People's admission into evidence of copies of text message screenshots and cell phone logs from Defendant's phone, arguing that the People were required to call a witness to authenticate. Defense also objected to the admission into evidence of the DIR. The Court admitted the exhibits into evidence over this objection and for the following reasons finds that consideration thereof comported with Defendant's procedural due process rights.
The use of documentary evidence, including hearsay, has been endorsed by courts holding due process hearings such as the case at bar. (Morrissey v Brewer, 408 U.S. 471, 487-489 [parole revocation hearing should include the right to appear, speak on one's own behalf, and produce documentary evidence and witnesses]). "It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." (Id., at 489). There is no constitutional or statutory right to confront the protected party and accuser prior to trial in determining good cause for a temporary order of protection. (People v Hayday, 144 A.D.2d 207, 208 [3d Dep't 1988], app denied 73 N.Y.2d 89). Hearsay and documentary evidence are admissible in all manner of criminal hearings. (See, CPL § 710.60 [4]; Corr Law § 168-n [3]). If other evidence at a pre-trial hearing can sufficiently establish the facts, policy considerations militate against requiring witness testimony. (People v Chipp, 75 N.Y.2d 327, 338 [1990] [defendant had no right to compel witness testimony at a probable cause hearing]). In the context of TOP hearings, admission of both accusatory instruments and supporting depositions has been held to comport with due process requirements. (People v Meggie, 184 Misc.2d 883, 886 [Dist Ct Nassau County 2000]). The Court concludes that reliable hearsay is admissible without the need for authentication by witness testimony for the court's consideration in Crawford hearings under CPL §§ 530.12 and 530.13.
Defendant next objected to the admission into evidence of information put forth by the People regarding any incidents of his abusive behavior against the complainant which had not been reported to police, and which were not yet the subject of a conviction. Defendant argued that in determining the propriety of a full temporary TOP, the Court may not consider unreported incidents of abuse. This argument fails by the express terms of CPL § 530.12, which requires courts to consider "prior incidents of abuse" to ascertain whether a full temporary order of protection should be issued.
In interpreting statutes, courts must give effect to the legislative intent. (People v Mitchell, 38 N.Y.3d 408, 411 [2022]. In drafting CPL § 530.12 as part of the protective scheme of the DVIA, if the Legislature had intended that "prior incidents of abuse" must be limited to those which were reported and not dismissed, it would have so specified. The legislature's omission of limiting language regarding the court's mandatory consideration of "prior incidents of abuse" is presumed to be intentional. (Statutes § 231; People v Simmons, 203 A.D.3d 106 [1st Dep't 2022]). "[W]here the statutory language is clear and unambiguous, the court should construe it so as to give effect to the plain meaning of the words used." (DL v SB, 39 N.Y.3d 81, 87 [2022] (internal citations omitted). Adopting Defendant's interpretation of the phrase would contravene the DVIA's legislative intent to "effectuate a comprehensive reform of the statutory treatment of domestic violence" by requiring courts to recognize the nature of intimate partner violence. (Sponsor's Mem., Bill Jacket, L. 1994, ch. 222). Consistent with the legislative intent of the DVIA, courts should consider the overall pattern and history of abuse - whether reported to the police or not. (e.g., RC v AC, 72 Misc.3d 1014, 1023 [Sup Ct Kings County 2021]).
see also Hon. Janice M. Rosa, Assessing Lethality and Risk: What Do we Know, How Can We Help, Lawyers Manual on Domestic Violence, 6th ed [2015], at 47, citing Connie Beck and Chitra Raghavan, Intimate Partner Abuse Screening in Custody Mediation: The Importance of Assessing Coercive Control, 48 Fam Ct Rev 555 [2010]).
As a corollary to the above analysis, the Court also finds unpersuasive Defendant's challenge to the admissibility of the Domestic Incident Report ("DIR") which is not connected to a criminal conviction. DIRs contain evidence-based data connected to the risk of lethality for abused intimate partners; they also provide the Court with substantial relevant information about the pending matter; the parties' relationship history; defendant's access to weapons, drug and alcohol use; and presence of children in the home. (Dr. Jacquelyn C. Campbell, Danger Assessment Instrument, dangerassessment.org). This information bears substantially on the Court's evaluation of risk. The Court finds that the DIR is reliable hearsay and is admissible without the need for authentication by witness testimony to determine the issuance of a TOP under CPL § 530.12.
While not strictly related to the case at bar since there are no prior DIRS here, the Court finds persuasive the reasoning in the recent case of People v PD that DIRS from past police incidents are admissible in understanding the parties' past history. DIRs were created not as documents intended to be used for prosecution, but as research, investigation, and data-gathering tools for the State. (People v P.D., 2023 NY Slip Op 23005 [Crim Ct Kings County 2023]). DCJS and law enforcement agencies have not merely a legitimate interest but a statutory mandate to prepare and maintain DIRs regardless of whether an arrest is made for at least four years, (CPL § 140.10 [5]), to allow for training, education, and statistical purposes, to inform the legislative and executive branches of the state of protection of families and provide for improvements in the law. (Exec Law § 837 [15]; see, e.g., Matter of Groves v SUNY Albany, 265 A.D.2d 141 [3d Dep't 2000]).
Conclusion
For all the above reasons, the Court finds that reliable hearsay, including all DIRs, is admissible without authentication at Crawford hearings; the Court also finds that witness testimony is not required for the People to meet their burden of demonstrating the need for a full TOP under CPL § 530.12. Finally, the Court holds that the informal hearing conducted in this matter enabled the Court to ascertain the facts necessary and reach an articulable, reasoned basis for making the type of balanced, informed decision that comports with due process and the standards set out by the Appellate Division in Crawford v Ally.
This constitutes the decision and order of the Court.