Opinion
No. O-/08.
2012-04-13
In the Matter of a Proceeding for an Order of Protection pursuant to Article VIII of the Family Court Act, ERIN R., Petitioner, v. RONALD R., Respondent.
Yisroel Schulman, Esq., by Amy R. Hoser & Christina Brandt–Young, Esqs., of Counsel, New York Legal Assistance Group, New York City, for the Petitioner. Melanie M. Marmer & Lynne Sztulwark, Esqs., Brooklyn, for the Respondent.
Yisroel Schulman, Esq., by Amy R. Hoser & Christina Brandt–Young, Esqs., of Counsel, New York Legal Assistance Group, New York City, for the Petitioner. Melanie M. Marmer & Lynne Sztulwark, Esqs., Brooklyn, for the Respondent.
Saira Khan, Esq., The Children's Law Center, Brooklyn, for the Children.
PAULA J. HEPNER, J.
Erin R. filed a family offense petition on October 21, 2008 seeking an order of protection against the Respondent followed by an amended petition on November 10, 2008. In all, the petition contained sixteen incidents constituting family offenses alleged to have been committed by the Respondent against the Petitioner. On November 16, 2010, the Petitioner withdrew two of these allegations. After trial, findings were made, by a preponderance of the evidence, in connection with eleven of the incidents. The Court dismissed three allegations for insufficient proof. In addition, the Court granted the Petitioner's application for a finding of aggravating circumstances, pursuant to Section 827(a)(vii) of the Family Court Act. The matter was adjourned for a dispositional hearing. The Court directed the Department of Probation and the Family Court Mental Health Clinic to prepare reports for the dispositional hearing. During the Petitioner's direct testimony at the dispositional hearing, counsel attempted to elicit testimony regarding incidents that were alleged and withdrawn pretrial, allegations that were dismissed after trial, and incidents that predate the filing of the family offense petition that were not pled initially. In an oral ruling from the bench on February 21, 2012, the Court precluded this testimony.
Before the Court is the Petitioner's motion to reargue the Court's ruling of February 21, 2012, under Rule 2221(a) and (d)(2) of the New York Civil Practice Law & Rules, premised on matters of law allegedly overlooked or misapprehended by the Court. The Petitioner relies on the express language of Section 842(a) of the Family Court Act as support for her position that evidence of incidents of abuse occurring prior to the filing of the family offense petition and evidence of incidents alleged in the family offense petition and/or testified to during the fact-finding hearing are admissible at the dispositional hearing. This statute sets forth a variety of conditions that may be imposed as terms of an order of protection and mandates courts consider ... conduct subject to prior orders of protection, prior incidents of abuse, extent of past or present injury, threats, drug or alcohol abuse, and access to weapons” when assessing if “the order of protection is likely to achieve its purpose in the absence of such a condition.”
In support of the Petitioner's motion, the Attorney for the Children argues that statements of the children regarding the incident of October 2008, which were not admissible at the fact-finding, constitute “material and relevant” evidence that should be admitted at the disposition to assist the court in evaluating the appropriate dispositional alternative and if an order of protection is issued, how long it should be and who should be included. The children's attorney points to the fact that “a broader standard of admissibility of evidence” must be available at the dispositional hearing in order to establish the existence or extent of aggravating circumstances, consider what conditions should be included within the order of protection to “stop the violence, end the family disruption and obtain protection” and what referrals for programs and services should be made.
In opposing this motion, the Respondent raises a procedural objection as a motion to reargue under Rule 2221 of the New York Civil Practice Law & Rules is directed to errors made by the court in determining a “prior motion.” A second procedural irregularity warranting dismissal of the Petitioner's motion asserted by the Respondent is addressed to the use of an Order to Show Cause in lieu of a Notice of Motion as the statute requires. Substantively, the Respondent argues that the Petitioner should be precluded from presenting evidence relating to incidents that were not “initially presented to the Court” during the fact-finding hearing and to permit that “without first trying the issue” would be an abuse of discretion. To the extent that some of these incidents predate the filing of the family offense petition and are over four years old, admitting this testimony at the disposition would be “an injustice.”
The purpose of a dispositional hearing is found in Section 833 of the Family Court Act which defines a “dispositional hearing” as a hearing “to determine what order of disposition should be made.” The dispositional alternatives available to the court to “stop the violence, end the family disruption and obtain protection” are set forth in Section 841 of the Family Court Act: a) dismissing the petition, if the allegations of the petition are not established; (b) suspending judgment for a period not in excess of six months; (c) placing the respondent on probation for a period not exceeding one year, and requiring respondent to participate in rehabilitative programs; (d) making an order of protection; (e) directing payment of restitution. In connection with the issuance of an order of protection, Section 842 sets forth reasonable conditions of behavior to be observed by the petitioner or respondent and prescribes the length of time the order of protection may be in effect depending on whether aggravating circumstances are established or not. Section 842–a permits a court to suspend or revoke existing licenses to carry, possess, repair or dispose of firearms, to order the respondent ineligible for such a license and to direct the immediate surrender of any and all firearms owned or possessed by the respondent.
The only statutory limitations placed on evidence that may be admitted at a dispositional hearing are found in Section 834 of the Family Court Act. Because of the wide-ranging inquiry that courts must engage in to fulfill the purpose of this stage of the family offense proceeding, “a broader standard of admissibility of evidence is available on the dispositional hearing than at the fact-finding hearing, and evidence may be admitted as long as it is material and relevant' including hearsay and other evidence otherwise incompetent” (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 834, at 240). Evidence that is relevant to deciding the term of an order of protection or what reasonable conditions of behavior should be observed will be admissible at the dispositional hearing (Matter of Crane v. Lopez–Arias, 1 AD3d 837 [3rd Dept 2003] ). Evidence that is material to a determination of whether a respondent is an limmediate and ongoing dangerm to the children (Matter of Kristine Z. v. Anthony C., 21 AD3d 1319 [4th Dept 2005] ) or evidence to support a finding of aggravating circumstances (Wright v. Wright, 4 AD3d 683 [3rd Dept 2004] ) will be admissible at a dispositional hearing. Evidence that was not germane to proving the elements of a family offense at fact-finding, such as whether the acts were committed in the presence of the children, will be admissible at a dispositional hearing (Charlene J.R. v. Walter A.M., 307 A.D.2d 1038 [2d Dept 2003] ). Evidence that was barred because of the “competent, material and relevant” standard at fact-finding, such as the hearsay statements of the children pertaining to the acts perpetrated, will be admissible at a dispositional hearing. Testimony regarding the nature and extent of injuries sustained by the victim as a result of the acts committed will be admissible at a dispositional hearing even if the evidence was insufficient to meet the definition of “physical injury” or “serious physical injury” in Sections 10.00(9) or (10) of the Penal Law for purposes of proving assault in the second or third degrees (Matter of Kristine Z. v. Anthony C., 21 AD3d 1319 [4th Dept 2005] ). Testimony from an “expert on battered women's syndrome who can explain a victim's delayed reaction to the abuse inflicted, her inability to leave the marital home on her own, and her ability to function under hostile circumstances” will be relevant and material evidence admissible at fact-finding as well as disposition (Matter of V.C. v. H.C., 257 A.D.2d 27 [1st Dept 1999] ).
Applying these principles to the case at bar, testimony regarding incidents that were alleged and withdrawn pretrial, allegations that were dismissed after trial for reasons other than credibility, and incidents that predate the filing of the family offense petition that were not pled initially are all potentially admissible at a dispositional hearing if they can meet the “material and relevant” evidentiary standard and should not have been summarily precluded. In addition, inasmuch as the question of whether “aggravating circumstances” exist is an issue for disposition [1 N.Y. Law of Domestic Violence § 2:46], the entry of a finding of aggravating circumstances at fact-finding was premature.
“Aggravating circumstances” is defined in Section 827(a)(vii) of the Family Court Act to mean “physical injury or serious physical injury to the petitioner caused by the respondent, the use of a dangerous instrument against the petitioner by the respondent, a history of repeated violations of prior orders of protection by the respondent, prior convictions for crimes against the petitioner by the respondent or the exposure of any family or household member to physical injury by the respondent and like incidents, behaviors and occurrences which to the court constitute an immediate and ongoing danger to the petitioner, or any member of the petitioner's family or household.” The Petitioner may have additional evidence to demonstrate one or more of the elements of aggravating circumstances that, because of their nature, would not have been admissible at the fact-finding hearing (Matter of Kristine Z., 21 AD3d at 1320). Petitioner should not be precluded from offering this evidence at disposition, nor the Respondent precluded from defending against a finding of aggravating circumstances. Accordingly the Petitioner's motion is granted and the Court's oral directive from February 21, 2012 is set aside and the Court's finding of aggravating circumstances in its Decision & Order of August 24, 2011 is vacated. The matter is adjourned for continued disposition.