Criminal Court of the City of New York, Bronx County, February 8, 2023

The Bronx Defenders (Fatima Youssef of counsel) for defendant.

Darcel D. Clark, District Attorney (Jillian Kennedy of counsel), for the People.

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 (TOP) 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." (Matter of Crawford v Ally, 197 AD3d 27, 33-34 [1st Dept 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 15 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{**78 Misc 3d at 713} 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:[*2]

"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." (Tr of Dec. 12, 2022 hearing [hereinafter Tr] at 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 23-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 at 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.{**78 Misc 3d at 714}

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 at 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 at 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 at 15, 29.)

Addressing the CPL 530.12 (1) (a) (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 at 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 at 31.) The court [*3]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{**78 Misc 3d at 715} a precursor to more lethal conduct in the context of intimate partner violence.^[FN1]

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].)^[FN2] Throughout this time, defendant complied with all pretrial 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.

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) (L 1994, ch 222) is the statutory scheme governing the issuance of TOPs in family offenses. Courts have been authorized to issue such TOPs since 1964. Statutory authority for such orders now exists in a myriad of criminal, matrimonial, and family court proceedings, continuing{**78 Misc 3d at 716} to evolve via a "patchwork" of statutes and amendments made virtually every year since.^[FN3]

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 [*4]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 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 pretrial release or securing order issued. (See CPL 170.10 [7]; 530.20-530.40; Peter Preiser, Prac Commentaries, McKinney's Cons Laws of NY, CPL 530.12.)

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 US 471, 481 [1972].) 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 AD3d 27 [1st Dept 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 AD3d at 34.) However, the Appellate Division held that it was not necessary to "articulate the precise form" of evidentiary hearing required. (Id.) 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 {**78 Misc 3d at 717}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 F3d 40 [2d Cir 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 hearing[s]" 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 US 319, 335 [1976].) Balancing these factors, the Court held that the administrative procedures provided were sufficient to satisfy due process. (Mathews v Eldridge, 424 US 319, 349 [1976].) Informal hearings can protect a litigant's due [*5]process rights when facing the deprivation of a substantial right. (See Matter of Berkley v New York City Dept. of Educ., 159 AD3d 525 [1st Dept 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 and 252 incorporate procedural due process protections into determinations of temporary orders of support and custody; Domestic Relations{**78 Misc 3d at 718} Law § 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. (Alan D. Scheinkman, Prac Commentaries, McKinney's Cons Laws of NY, Domestic Relations Law § 252; Minnus v Minnus, 63 AD2d 966 [2d Dept 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 Family Court Act § 1024. The section 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." (Family Ct Act § 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." (Family Ct Act § 1046 [b] [iii].) An expedited section 1028 hearing is less formal than, and not a replacement for, an ultimate fact-finding hearing (Matter of Louie L.V. [Virzhiniya T.V.], 176 AD3d 1081, 1082 [2d Dept 2019]; Merril Sobie, Prac Commentaries, McKinney's Cons Laws of NY, Family Ct Act § 1028), and has been held sufficient to protect a parent's procedural due process rights. (Matter of Elizabeth C. [Omar C.], 156 AD3d 193, 205 [2d Dept 2017].)

The standard of proof for hearings pursuant to Correction Law § 168 et seq. to determine a defendant's sex offender registration levels (SORA hearing) is by clear and convincing evidence. (Correction 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. (Correction 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 [ED NY 2008]; Doe v Cuomo, 755 F3d 105 [2d Cir 2014]; Matter of Bush v New York State Bd. of Examiners of Sex Offenders, 72 AD3d 1078 [2d Dept 2010].)

Vehicle and Traffic Law § 1193 (2) (e) (7) requires courts to temporarily suspend a driver's license where an accusatory{**78 Misc 3d at 719} 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. (Vehicle and Traffic Law § 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 and 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 v Wolfe, 88 NY2d 426, 435 [1996].)[*6]

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.^[FN4]

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 US 471, 487-489{**78 Misc 3d at 720} [1972] [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 AD2d 207, 208 [3d Dept 1988], lv denied 73 NY2d 892 [1989].) Hearsay and documentary evidence are admissible in all manner of criminal hearings. (See CPL 710.60 [4]; Correction Law § 168-n [3].) If other evidence at a pretrial hearing can sufficiently establish the facts, policy considerations militate against requiring witness testimony. (People v Chipp, 75 NY2d 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 [Nassau Dist Ct 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 TOP, the court may not consider unreported incidents of abuse. This argument fails by the express terms of CPL 530.12 (1) (a) (1), which requires [*7]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 NY3d 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. (McKinney's Cons Laws of NY, Statutes § 231; {**78 Misc 3d at 721}People v Simmons, 203 AD3d 106 [1st Dept 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." (Matter of D.L. v S.B., 39 NY3d 81, 87 [2022] [citation 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. (Senate Introducer's Mem in Support, Bill Jacket, L 1994, ch 222 at 13.) 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. (See e.g. Matter of R.C. v A.C., 72 Misc 3d 1014, 1023 [Sup Ct, Kings County 2021].)^[FN5]

As a corollary to the above analysis, the court also finds unpersuasive defendant's challenge to the admissibility of the Domestic Incident Report 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 and drug and alcohol use; and the presence of children in the home^[FN6] (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{**78 Misc 3d at 722} need for authentication by witness testimony to determine the issuance of a TOP under CPL 530.12.

For all the above reasons, the court finds that reliable hearsay, including all DIRs, is [*8]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.