New York

Published on: February 21, 2013

Court Decides Domestic Violence Charges

by Stephen Bilkis

First Case:

On or about 8 July 2008, a Family Court in Bronx County found that respondent mother permanently neglected her children. The judgment was appealed and the court now affirms said order, without costs.

Here, a New York Criminal Lawyer said the court finds that the neglect findings are supported by clear and convincing evidence that petitioner made diligent efforts to assist a meaningful relationship between respondent mother and her children and that, despite these efforts, respondent mother failed to plan for the children’s future. Petitioner’s efforts included providing numerous referrals to programs tailored to respondent mother’s changing needs and consistently following up with respondent mother on such critical goals as completing a mental health evaluation and domestic violence counseling. Petitioner’s focus on the issues of health and domestic violence was the most appropriate course of action. However, respondent mother still refused to complete these critical components of the service plan. The respondent mother’s her argument that petitioner failed to assist her with such other service plan goals as obtaining suitable housing and a source of income is belied by the records of the case. Evidence was presented that petitioner indeed made referrals in these areas and monitored respondent mother’s changing housing and employment circumstances. It was respondent mother’s own lack of meaningful cooperation with petitioner that hindered her accomplishment of these goals.

Published on: February 18, 2013

Police Officer Hurt in Domestic Violence Call

by Stephen Bilkis

First Case:

Sometime in March 1998, petitioner who is a police officer since 1989 was suffering from depression and suicidal ideation and was admitted to a psychiatric hospital. A New York Criminal Lawyer said the petitioner was out of work for several months after which time she returned to light-duty work that did not involve her carrying a weapon. She remained on light duty until September 2001, when she stopped working altogether. In 2003, she applied for performance of duty disability retirement benefits, claiming to be permanently disabled due to posttraumatic stress disorder and depression. The application was initially denied and petitioner requested a hearing and redetermination. Following hearings, the Hearing Officer upheld the denial, finding, among other things, that petitioner had failed to establish that she was incapacitated from the performance of duty as the result of a disability sustained in service. Respondent made supplemental findings of fact, but otherwise adopted the Hearing Officer’s findings. Thus, a CPLR Article 78 Proceeding ensued to review the determination of respondent which denied petitioner’s application for performance of duty disability retirement benefits.

The court finds that the denial was proper and affirms the respondent’s determination. Under the Retirement and Social Security Law, in order to be entitled to performance of duty disability retirement benefits, an applicant must establish that he or she is physically or mentally incapacitated for performance of duty as the natural and proximate result of a disability sustained in such service.

Published on: April 26, 2012

Husand Moves to Violate Order for Protection

by Stephen Bilkis

A couple co-owned two separate apartments in one building in Manhattan. A larger apartment was their family home and the smaller apartment was the office of the wife. A New York Criminal Lawyer said the couple was having marital problems and the wife moved out of their larger apartment and she had been living in the smaller apartment.

In May 1987, the husband slammed the wife into a wall and she injured her elbow. In October 1987, the husband knocked his wife to the floor and caused her to break her ankle. He forced her to walk on her broken ankle and threw books at her. On June 24, 1988, the husband punched the wife in the mouth and knocked one of her teeth out because she locked herself in the larger apartment and would not let the husband in.

The wife finally filed a complaint for domestic violence against her husband. She also filed a complaint for assault plus harassment. During the arraignment the district attorney asked for a temporary order of protection be issued effective until July 17, 1988. No argument was heard and there were no testimonies presented by the wife or the husband. The arraigning judge issued the temporary order of protection. The husband was released on his own recognizance.

Published on: April 25, 2012

Court Discusses Subject Matter Jurisdiction

by Stephen Bilkis

Defendants in three cases challenge the rules promulgated by the Chief Judge and Chief Administrative Judge that created either the Bronx Criminal Division or Integrated Domestic Violence Part in Supreme Court, which resulted in the transfer of their misdemeanor prosecutions from local criminal courts to Supreme Court for trial. A New York Criminal Lawyer said that although they did not object to the transfer procedure in the trial court, they argued on appeal that Supreme Court lacked subject matter jurisdiction over their trials and that the rules violate the New York Constitution and the Criminal Procedure Law.

The first case:

In January 2007, defendant was charged by misdemeanor information filed in New York City Criminal Court, Kings County, with multiple counts of aggravated harassment in the second degree after he contacted his former paramour by telephone 62 times in one evening and repeatedly threatened her with physical harm. Defendant and the complainant had been involved in multiple prior Family Court cases regarding disputes about their two children. After his arraignment in New York City Criminal Court, the case was transferred to the IDV Part in Kings County Supreme Court where a nonjury trial was conducted. Defendant was convicted of three counts of attempted aggravated harassment in the second degree and sentenced to concurrent terms of one year’s probation. He was also directed to participate in a variety of domestic violence accountability and other programs.

Published on: April 24, 2012

Court Discusses Jurisdiction of IDV Courts

by Stephen Bilkis

The Court transferred into the Integrated Domestic Violence (IDV) Part a case alleging criminal contempt of court filed against a woman and a family offense case that the woman filed against the complaining witness. On joint application of the Court and the accused, the Court also transferred a subsequently filed criminal case against the woman into the IDV Part. The Court’s application to consolidate the two cases for trial was granted. The family offense case that the woman filed against the complaining witness was dismissed for lack of proper service on an incapacitated person. The woman moves to send her consolidated cases back to Criminal Court.

A New York Criminal Lawyer said the woman argues that an Indictment or Superior Court Information is needed to allow misdemeanor cases to be prosecuted in the Supreme Court. The State Court of Appeals has recently rejected the argument and has upheld the authority of the IDV Courts to preside over misdemeanor cases such as the cases.

The woman also argues that upon the dismissal of her family offense petition for lack of service, the criminal cases must be transferred back to the Criminal Court. The woman cites no authority for the proposition and the Court is aware of none.

Published on: April 24, 2012

Respondent Violates Order for Protection

by Stephen Bilkis

A New York Criminal Lawyer said that on 15 March 199, petitioner spouse filed a supplemental petition has been, a Family Offense Proceeding, alleging that respondent failed to obey the modified order of protection issued by the court dated 15 November 1993; that respondent on 8 March 1994, upon release from incarceration for prior violation of the order of protection, arrived at petitioner’s residence with police at approximately 1:00 a.m. attempting to gain entry to petitioner’s residence and subsequently on 11 March 1994 that “a car belonging to a friend was towed from petitioner’s driveway, and petitioner thinking the car stolen filed a police report and later learned where the car was towed, and upon inquiring found respondent had filed a complaint and stated to be the owner of the property and claimed that the car was illegally parked and had the car towed where the towing company is demanding payment for towing and storage fees.”

A warrant was issued for respondent’s arrest. Respondent was returned on the warrant on 21 March 1994. In April 1994, a hearing was held and at the conclusion thereof, the court made two findings beyond a reasonable doubt, to wit (1) that on 8 March 1994, respondent willfully violated the final order of protection by attempting to gain entry to petitioner’s residence and (2) that on 11 March 1994, respondent willfully violated the final order of protection by having a vehicle lawfully parked on petitioner’s property towed from that property with false representations by respondent that he was the owner of the property, that the car was unlawfully parked, all to harass and annoy the petitioner. The court’s decision was based on the prior history of family offense activity perpetrated upon petitioner by respondent; the fact that respondent had been committed previously by a court in Nassau County to incarceration for one hundred and eighty days; that respondent apart from that commitment, had been civilly committed by this court for willful violation of the order of protection to incarceration for six months; that respondent upon release from this most recent commitment had almost simultaneously violated the order of protection again on 8 March 1994; that respondent’s behavior indicated an intractable design to continue to annoy and harass petitioner; and considering the welfare not only of petitioner, but of the two children, the court determined to civilly commit the respondent for each of the two willful violation to a term of incarceration of six months for the finding of violation occurring on 8 March 1994 and of four months for the finding of violation occurring on 11 March 1994, to run consecutively.

On 12 April 1994, respondent filed a motion returnable 27 April 1994 seeking re-argument of the dispositional order dated 7 April 1994.

Published on: April 23, 2012

Court Determines Child Custody Where Domestic Violence Present

by Stephen Bilkis

The couple was married in December 1989 and had always resided in New York during their marriage and their only child was born in July 1990. The parties resided in the City of Glens Falls. The husband was employed by an architectural firm and the wife remained at home to care for their son.

A New York Crirminal Lawyer said in June 1991, after the husband was laid off, the couple moved in with the husband’s brother in Rensselaer County. It was uncontested that the brother has suffered mental illness for many years and being treated with tranquilizers and has been hospitalized on numerous occasions. The husband admitted that his brother’s apartment was cramped, dirty, dangerous and had fleas which bit the child. Marital problems by and between the parties were intensified by their living conditions.

In August 1991, the wife left New York and took their son to Puerto Rico with her. She testified that she escaped to Puerto Rico in desperation due to her inability to acquire a safe environment in New York and the necessary medical care for her son. Because her mother and father both resided in Puerto Rico, the wife contended that she needed to live there in order to receive the emotional and financial support of her family.

Published on: April 22, 2012

Court Determines Jurisdiction in Domestic Violence Case

by Stephen Bilkis

Domestic violence cases are not stationary crimes. Frequently, one party will flee to a different state, when that happens it is important that the court orders that are in effect follow them. Prior to 1994, that was not the case. The federal government stepped in and issued the Violence Against Women Act of 1994 which requires that the states give full faith and credit to any order of protection issued by a court in any state. There are some restrictions though. Article IV, Section 1 of the Constitution of the United States of America requires that Full Faith and Credit is given to the public acts, records, and judicial proceedings of all of the states. Congress is required to prescribe the manner in which the orders of the states are to be proved and given effect. With these orders, Congress made their intent to protect women who cross state lines, obvious.

Whenever a situation arises where the New York courts must make a determination regarding a domestic violence order from another state, they must take all of this into consideration. It is not enough to have a protection order in place from a different jurisdiction. The victim must also be able to prove that the person whom the order is against has been given due process under the law. That can be tricky. A New York Criminal Lawyer said when a person obtains an order of protection, it becomes important that they ensure that the court personnel handle all of the paperwork correctly. If the paperwork does not demonstrate that the person was served correctly and given the opportunity to address the order in court, there is not proof of due process and the order may not be valid.

In one case out of Richmond County, in April 7, 1997, a woman was in Staten Island when she noticed that her estranged father was following her. There was a protection order in place in New Jersey stating that her father was not allowed to harass, stalk, or follow her mother or any other member of the family pursuant to a domestic violence problem within the home. Her mother took out the order, but she was named as a secondary party of the protection order.

Published on: April 22, 2012

Court Decides if City is Obligated to Provide Housing Subsidies to the Homeless

by Stephen Bilkis

Plaintiffs are a class of formerly homeless families and individuals for whom the City paid rent through a program called Advantage. The City induced these plaintiffs, many of whom are victims of domestic violence, to leave the relative safety of the shelter system and to enter into leases for apartments they could not afford. The City accomplished this by agreeing to pay all or a portion of plaintiffs’ rent for a year with the promise of a second year if they met the eligibility requirements for the Advantage program. However, a New York Criminal Lawyer said once plaintiffs took the City up on its offer and moved, the City terminated that funding during the lease term.

An action for specific performance, and declaratory and injunctive relief was filed where plaintiffs seek to bar termination of a rent subsidy program (the Advantage Program) run by the NYC Department of Homeless Services even though federal and state funding was withdrawn effective April 2011.

Plaintiffs argue that the various documents appertaining to the subsidy program (Certification Letters, Participation Agreements and Lease Riders) contractually obligate the City to continue the subsidies.

Published on: April 22, 2012

Woman Attacks Husband in Domestic Violence Incident

by Stephen Bilkis

The family court released a decision upon a fact-finding reason that a mother neglected her three children and now released two of the children to the custody of their father with 12 months of supervision by the Administration for Children’s Services (ACS). A New York Criminal Lawyer said the mother ordered by the court to comply with the terms of an order of protection. Based on records, the administration for children’s services protects the children from abuse and abandonment or even neglect. The administration for children’s services also provides neighborhood-based services with the help of the community partners, to ensure the children to grow up in safe, permanent homes with strong families

Majority of the evidence supports the court’s finding that the mother neglected her children below eighteen years of age, by committing acts of domestic violence against the children’s father in the children’s presence. Through such actions, the children’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of the parent to exercise a minimum degree of care.

The out of court statements made by one of the children regarding the mother’s attacks on the father were supported by the father’s testimony, the responding police officer’s testimony, and the out of court statements of the mother’s daughters. A New York Criminal Lawyer said that based on records, no expert or medical testimony is required to show that the violent acts exposed the children to an imminent risk of harm. Evidence also supports the court’s finding of educational neglect as to one of the children. The record shows that, for the 2008–2009 school year, the child missed 64 out of 181 days of school and was late 38 out of 181 days. It shows excessive unexcused absences from school that supports a finding of neglect. The child’s guidance counselor testified that he had contacted the mother on numerous occasions regarding the child’s absenteeism, and there is no basis for disturbing the court’s credibility determinations.