Areas of Practice

Orders of Protection

What constitutes a Family Offense?

by: Mace H. Greenfield

In addition to reviewing the applicable statutes in both the Family Court Act and the Penal Laws, one should also consult the Criminal Jury Instructions, and the case law to fully understand and apply each and every element of each family offense alleged. The allegations in a family offense petition must fulfill all the elements of each offense alleged, or it must be dismissed.

In People v. Deignan, the criminal court held that disorderly conduct requires proof of the element of intent to cause public inconvenience, annoyance or alarm or recklessly creating a risk thereof, which is not required to establish harassment. However, for the purposes of a family offense, the law specifically states that:

For purposes of this article, “disorderly conduct” includes disorderly conduct not in a public place.

In People v. O’Niel and Jonas, the criminal court found that a necessary element of disorderly conduct is that a breach of the peace must be imminent or might be expected or intended to flow from the conduct alleged. How can this occur other than in a public place? It is important to note that in People v. Tichenor, the court of appeals held that disorderly conduct does not prohibit constitutionally protected speech, it prohibits words and utterances that are coupled with an intent to create a risk of public disorder. In People v. Deignan, the criminal court found that the statutory difference between disorderly conduct, and harassment, is that disorderly conduct requires an intent to cause public inconvenience, annoyance, or alarm or a reckless risk thereof, and harassment requires that the conduct occur in a “public place” but does not require a substantial risk of public inconvenience, annoyance, or alarm.

In People v. Concannon, the court of appeals found that a necessary element of the crime of harassment is that the party must have intended to harass the victim. Further, in People v. Moyer, the court of appeals held that the violation of harassment requires proof of an intent to harass, annoy or alarm. Intent is defined as a conscious objective or purpose. Additionally, the criminal court in People v. Morgenstern, found that it is not enough that the petitioner found the abusive language communicated by the respondent annoying, especially where, as in People v. Dietze, the court of appeals held that communications are protected as free speech which are not fighting words to constitute a breach of the peace, or where as in People v. Zullo, respondent is merely stating her opinion, the respondent had to have intended to annoy the petitioner. Additionally, as in Hayes v. Hayes, the family court has held that when a respondent makes threats concerning the petitioner to a third party, but not to the petitioner, and there is no proof that respondent authorized or understood that the threats would be repeated to the petitioner, no family offense has been committed. However, in People v. Loria, the threats communicated to a third party by either petitioner or respondent help to prove the respondent’s “state of mind.”

In People v. Reynolds, the criminal court determined that it is respondent’s burden to prove that his or her communications, alleged to be harassment, involved constitutionally protected speech. In People v. Amalfi, the criminal court held that when a petitioner telephones the respondent and receives a threatening response from the respondent, no action is had, because respondent did not initiate the telephone call. However, in People v. Miguez, the criminal court held that although public speech which is vulgar, abusive, derisive and provocative may be constitutionally protected, leaving such a message on someone’s answering machine in his or her home is a trespass by telephone and is a violation of privacy actionable as aggravated harassment in the second degree. Further, in People v. Zullo, the criminal court found that a person can expect to enjoy privacy in his own home, and a respondent can expect to be held liable if his or her electronic intrusion crosses the objective threshold.

Additionally, in People v. Miguez, the criminal court held that a person’s intent can be deduced from prior acts. A petitioner can introduce uncharged acts by respondent, which establish that respondent has, in the past, made other telephone calls to the petitioner and or has followed him or her by car on prior occasions. Such evidence is probative of the respondent’s intent.

An interesting hypothetical, is if a respondent is accused of harassing a petitioner by telephone, having called that person’s home three times in two weeks, leaving messages such as: “I want to speak with my children. What kind of parent are you? I know you are home and you just don’t want me to speak with them?” Well, the respondent’s intent may seem obvious that all he intended was to talk to his child, but, some custodial parents will still seek an order of protection based on this alone. Here, whether or not he made these calls should not be the primary and sole issue, especially if he did make them. The primary issue is whether or not he “intended to harass, annoy, threaten or alarm” that person.

Another interesting hypothetical is when the custodial parent and the children continue to reside in the marital home and the non-custodial parent maintains his friendship with the neighbors. The non-custodial parent arrives in the neighborhood an hour or so early for his scheduled visitation to visit with his former neighbors, and asks them questions about his estranged spouse. The custodial parent objects to this and seeks an order of protection and stay away alleging this in her petition, and the court issues a temporary “stay away” order. Not only does the custodial parent not have standing on behalf of her neighbors who do not complain about these visits, but this does not violate any of the enumerated offenses. Where is the intent to harass, especially if it is not alleged in the petition. Problematically, this would seem to violate the non custodial parent’s constitutional rights to freely associate as has been set forth in Roberts v. US Jaycees, and to speak freely, so long as no laws are being violated, and no civil liberty is being enjoined by his speech, i.e., slander or libel as was been set forth in both Frisby v. Schultz and Martin v. Struthers.

This same concept of intent would hold true if a respondent went to go to petitioner’s home at the time of her visitation and no one answers the door, yet she hears a TV through the door and the car is in the driveway. She then returns ten times in two hours, ringing the doorbell and banging on the door, leaving phone messages in between each return trip. Obviously her intent was to pick up her child for visitation, but again, the custodial parent may seek an order of protection based upon this. Intent is crucial, and yet, a Judge may still issue an order of protection if this action is not properly defended. In Di Donna v. Di Donna, the family court held that an attempt to maintain a relationship with one’s children is not harassment.

Further, the appellate courts in both Merchant v. Merchant and Entwistle v. Entwistle, found that when a custodial parent refuses to answer the door when it is the designated time for visitation, such interference by the custodial parent with the non custodial parent’s right to visitation with the child is an act so inconsistent with the best interests of the child as to per se raise a strong probability that the offending party is unfit to act as custodial parent.

In both People v. Garbarino and People v. Leonardo, the appellate courts in held that to sustain a finding of recklessness, that a necessary element, to support charges of assault in the second and third degrees and or reckless endangerment, to allege that the respondent was aware of and consciously disregarded a risk that injury would occur, that the risk was substantial and unjustifiable and that the disregard constituted a gross deviation from the standard of conduct that a reasonable person would observe.

In contrast, the appellate court in People v. Bouyea, held that an assault must be without justification and must cause physical injury or pain. Further, in People v. Reed, the appellate court found that the physical injury must be the impairment of a physical condition. Penal Law ß 10.00(9), defines a physical injury is an impairment of someone’s physical condition or an injury causing substantial pain. Additionally, Penal Law 10.00 (10) defines serious physical injury as “an impairment of a person’s physical condition which creates a substantial risk of death or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” Controlling is the court of appeals determination in Re A., that the concept of pain in the law is not a subjective one to the victim, even a black eye may be insufficient. In that same light, in People ex rel. Fanelli v. Doe, the criminal court held that harmlessly nudging someone on the shoulder does not constitute the offense of assault in the third degree. However, in People v. Farnworth, the appellate court held that the striking of a person several times without justification, resulting in bruises to petitioner’s face and a fractured nose does constitute third degree assault.

The court of appeals in People v. Trappier, determined that an essential element of attempted assault is that the respondent intends to cause either physical injury or serious physical injury. The court of appeals further refined this in People v. Bracey and Tyrell Foster-Bey, when it held that it is not enough that the respondent intends to commit an assault, he must act to carry out an assault, and for whatever reason, not be successful. The act must be more than preparation and must be an act that would tend to affect the assault and come dangerously close to the completion of the intended crime. Notably, the court of appeals has also held that the respondent must intend to cause a specific injury, it is not possible to intend to cause an unintended injury. In some instances an attempted assault and reckless endangerment are not inconsistent with one another. Further, the court of appeals, in People v. Trappier, found that it is possible to have intended to cause a physical injury, but not have caused a serious physical injury, but have caused a risk of serious physical injury. There are also other relevant legal definitions that apply to the family offense of assault in the second and third degrees, as defined in the penal laws.

In criminal court, as opposed to family court, the court of appeals, in People v. Bornholdt, held that the complainant would have to prove the elements of the offense alleged beyond the shadow of a doubt, or the charge would be dismissed. Additionally, in criminal court, the prosecution must be ready for trial within specified times or the charges must, according to the penal law, be dismissed. For example: in People v. P., a motion to dismiss the charge of violating Penal Law ß 240.25(1), harassment, was granted pursuant to Criminal Procedure Law ß 170.30(1)(e) on the ground that the prosecution was not ready for trial within 30 days of the date of commencement of the action as required by Criminal Procedure Law ß 30.30(1)(d). No such restrictions appear to apply to a family court proceeding.

It is important to be aware that the family court can issue a warrant, pursuant to FCA ß 827 (a) for a respondent’s arrest, upon presentation of the family offense petition, under certain circumstances.

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