Opinion
O-105-07.
Decided April 28, 2008.
Kelli M. O'Brien, Esq., PC, Goshen, New York, Attorney for Petitioner.
Donald Card, Jr. Esq., The Legal Aid Society of Orange County, Inc., Goshen, New York, Attorney for Respondent.
Marvin Williams, Esq., Children's Rights Society, Inc., Law Guardian, Goshen, New York, Attorney for Children.
The motion filed by petitioner for summary judgment in her favor upon the petition, and respondent's cross-motion seeking to dismiss the petition are disposed of as follows:
The petitioner has filed a motion for summary judgment upon the family offense petition which was filed by her on her own behalf, as well as on behalf of the parties' four minor children. The motion is premised on the fact that the respondent in a criminal proceeding in which respondent was charged and convicted of committing criminal contempt in the second degree, in violation of Penal Law 215.50(3), was posited upon the same events and transactions which underlies the instant family offense proceeding filed in the Family Court. The criminal statute, Penal Law 215.50(3), proscribes intentional disobediance to the mandate of a court. In this case, it was alleged and proved in the criminal proceeding that on March 28, 2007 respondent violated an order of protection issued by the Hon. Stewart A. Rosenwasser in the County Court, Orange County, New York on May 1, 2001. A copy of Judge Rosenwasser's May 1, 2001 order of protection is attached to the respondent's cross-motion papers. The May 1, 2001 order of protection orders the respondent to stay away from the petitioner and enjoins the respondent from, among other things, harassment, intimidation, and threats against the petitioner. The petitioner, in her motion papers through her attorney, states the factual allegations that amounted to a conviction for contempt in the criminal proceeding are identical to those alleged in this Family Court family offense proceeding. In this proceeding, the petition alleges on March 28, 2007 respondent drove his car past petitioner's home, followed her children on a school bus, followed petitioner to a gas station where respondent uttered threats through his car window to kill her, followed petitioner to a police station to where petitioner had fled, and continued to drive his vehicle up and down the street in front of the police station. Respondent was subsequently arrested that evening. In his responding motion papers, the respondent through his attorney's affirmation expressly acknowledges that the events alleged in the criminal proceeding, upon which the conviction is based, are identical to the allegations in this proceeding.
Respondent contends that permitting this proceeding to continue violates respondent's constitutional right to be free of being placed in double jeopardy, a right guaranteed by the Fifth Amendment to the United States Constitution. The Court of Appeals in the case of People v. Woods, 95 NY2d 509, held that where a defendant had been found guilty by Family Court of willfully violating an outstanding order of protection, for which the court sentenced defendant to six months incarceration, it violates the double jeopardy clause to charge and try defendant in a subsequent criminal proceeding for criminal contempt and other criminal charges based on the same offense. This is because, the Court of Appeals stated, the double jeopardy clause protects against the imposition of multiple criminal punishments for the same offense. However, the Court of Appeals, in People v. Woods, Supra, as well as the Appellate Division, Second Department, in Alfeo v. Alfeo, 306 AD2d 471, a cased decided in 2003, in citing to People v. Woods, held that under the overall statutory scheme enacted a domestic violence victim may seek the issuance of multiple orders of protection from criminal as well as Family Court based on the same incident. The court in Alfeo v. Alfeo, 306 AD2d 471, stated at pp 471-472:
While double jeopardy concerns may come into play where a person allegedly wilfully violates an order of protection (citations omitted) those considerations are not relevant where, as here, the petitioner is merely seeking an order of protection, a remedy which is not punitive and does not involve, at this stage, incarceration (citation omitted) (emphasis added).
Thus, the seeking of an order of protection is not, in and of itself, punitive and does not trigger double jeopardy concerns. Respondent alleges he is at risk for double jeopardy because probation is a possible alternative disposition in this family offense proceeding (FCA 841[c]). This court is aware of the Appellate Division, Second Department's subsequent holding in People v. Henriques, 35 AD3d 503, decided in 2006, which holds that probation is an alternate criminal sanction which qualifies as punishment under the double jeopardy clause. However, the Family Court petition in this proceeding in the prayer for relief seeks only the issuance of an order of protection and a finding of aggravated circumstances based on alleged past physical threats by respondent against petitioner and her family members. Probation is not expressly sought in the prayer for relief. Under the circumstances, the Alfeo v. Alfeo, 306 AD2d 471 case is controlling with respect to whether petitioner may seek an order of protection despite the double jeopardy claim until expressly overruled by the appellate court. Therefore, the court finds this proceeding which seeks the issuance of an order of protection is not barred by double jeopardy.
On this summary judgment motion, the petitioner sufficiently met her initial burden of proof of prima facie demonstrating her entitlement to judgment as a matter of law with respect to the fact finding branch of such proceeding (FCA 832; FCA 835[a]; Zuckerman v. City of New York, 49 NY2d 557). The evidence shows respondent committed acts amounting to harassment in the second degree as well as harassment in the first degree (Penal Law 240.26; Penal Law 240.25). The evidence demonstrates respondent followed petitioner in and about various places, engaged in a course of conduct which demonstrated an intent to harass, annoy or alarm petitioner, and even placed her in reasonable fear of physical injury. Respondent's conduct is not shown to have served any legitimate purpose. Although respondent's attorney alleges in his affirmation that at the criminal trial there was no testimony with respect to threats made by respondent at the gas station, petitioner's sworn petition in this proceeding which pleading is before the court and may be considered on this summary judgment motion provides such evidence and requires respondent to come forward with admissible evidentiary proof to demonstrate a triable issue of fact exists.
No sworn statement is submitted by respondent on this motion The attorney's affirmation, alone, is insufficient to raise a triable issue of fact ( Zuckerman v. City of New York, 49 NY2d 557, 563; Jabs v. Jabs, 221 AD2d 704). The evidence submitted by petitioner, including her sworn petition, in conjunction with respondent's admission that the facts alleged in the petition were the basis for the criminal prosecution for which he was found guilty of criminal contempt required respondent to come forward with a showing of evidence which would demonstrate a triable issue of fact, which he has not ( Zuckerman v. City of New York, 49 NY2d 557).
However, the branch of the proceeding with respect to the appropriate disposition to be ordered, including the allegations of the petition that aggravating circumstances exist, requires a hearing (FCA 835).
Accordingly, it is hereby
ORDERED that petitioner is granted summary judgment against respondent with respect to the fact finding branch of the proceeding upon the finding that respondent committed a family offense against petitioner; and it is further
ORDERED that the matter remains scheduled for conference to be held on May 1, 2008 before this court.