Domestic Violence

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 23, 2012

Court Decides Whether to Evict Domestic Violence Offender from Subsidized Housing

by Stephen Bilkis

A woman from New York filed an action against the Chairman of the Housing Authority that owns and operates her apartment. The woman challenge certain policies, proceedings and practices of the Housing Authority and to compel them to establish specific criteria and definitions of non-desirability and clear guidelines and criteria for deciding to terminate, transfer or continue the tenancies of certain tenants. A New York Criminal Lawyer the petition filed by the woman also seeks to dismiss the charges pending against her in a Housing Authority hearing that terminated her tenancy.

Following a disturbance in the woman’s apartment allegedly caused by her onetime and allegedly current boyfriend, the Housing Authority gave a notice to the woman that it would commence a proceeding to terminate her public housing tenancy because she never obtained permission for her boyfriend to live in her apartment. The Housing Authority also said that the woman’s boyfriend had committed domestic violence in the apartment and the woman refused to exclude his boyfriend from the building. Prior to the adjourned date for the hearing on the charges, the woman commenced a proceeding to prevent the Housing Authority from proceeding and asserting various lawful grounds. The Court initially stayed the Housing Authority hearing for a fixed period to consider the woman’s assertions but after subsequently considering the submissions of the parties, the Court did not extend the stay after such period and the stay has expired.

The Housing Authority claims in their petition that multiple dwellings such as the project in which the Apartment is located are densely populated, unacceptable behavior of tenants can have a serious impact on the ability of other tenants to be secure in and enjoy their homes. To prevent disruptive tenants from adversely affecting the other tenants in its projects, the Housing Authority has developed a series of criteria relating to tenant behavior and conditions the continuation of a tenant’s tenancy on adherence to these rules. Serious violence and material criminal activity by a tenant or a member of a tenant’s household in a tenant’s apartment are generally proscribed and their occurrence will support a tenancy termination.

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.

Published on: April 21, 2012

Couple Try to Back Out of Giving Child Up for Adoption

by Stephen Bilkis

A 22-year old black woman became pregnant by her 23-year old boyfriend. At that time, the mother was teaching at a Christian school by day and she was studying at a community college to earn a degree as a medical assistant. Her boyfriend was working for a large retail company but he was working toward a degree in automotive mechanics.

A New York Criminal Lawyer said both the woman and the man lived with their families. The woman had a two-year old daughter who lived with her and the man had a three year old son who lived with his ex-girlfriend but the man enjoys joint custody and regularly paid child support for his son.

While the woman was pregnant, she responded to a personal advertisement in a newspaper placed by a single woman who wanted to adopt a baby. The woman and the pregnant lady spoke to each other over the phone and they met several times. Both the pregnant woman and her boyfriend liked the woman and were willing have their baby adopted by the single woman.

Published on: April 21, 2012

Court Discusses Jurisdiction of Integrated Domestic Violence Court

by Stephen Bilkis

A man was charged on one count of harassment in the second degree alleging an act of domestic violence against the complainant. Consequently, the man served an action on the district attorney while the court action was pending. The three petitions were concurrently pending in the family court between the man, the complainant and a third family member concerning the custody of the man and complainant’s child. The pending decision of the criminal and family court matters with the underlying issue prompted a screening by the Supreme Court and its integrated domestic violence (IDV) part in the county. After the screening, the court determined that the transfer of the family’s cases to the IDV was appropriate by finding that it would promote the administration of justice.

The man moved for dismissal of the charged on one count of harassment in the second degree alleging an act of domestic cruelty against him and asserts that Supreme Court lacks an essential subject matter authority citing criminal procedure law. A New York Criminal Lawyer said the man also argued that irrelevant offenses charged as a sole count in a legal document may not be tried in the Supreme Court unless the offense is charged in an allegation that also charges a crime. The man further relies on the recent Court of Appeal’s decision that supports his dismissal request.

The man also claims that to understand the provisions of the constitution to grant the transfer of authority to the Supreme Court IDV part and to transfer a sole count of a violation level offense would support an improper use of the court’s resources and gives the court’s unarguable subject matter authority over more serious offenses.

Published on: April 20, 2012

Court Decides Custody Arrangement in Light of Domestic Violence Incidents

by Stephen Bilkis

A man and a woman lived together and had a child who was born on February 17, 1990. They were married five months later on May 7, 1990. They resided at an apartment on Fifth Avenue. During their stay at the apartment, the woman met and cultivated a friendship with another woman who resided on another floor of the same apartment building.

The friend saw the woman everyday and noticed bruises on her face and arms. She saw her with a split lip. One evening the woman came to her friend’s apartment asking for help. She was bleeding from a cut above her right eye. She was crying and shaking. The friend called the police and after that, the friend went up to the woman’s apartment on the 19th floor to get her baby. The friend recalls that the woman invariably told her that it was her husband who hurt her. She also confided in her that they were fighting all the time.

The woman applied for and was able to obtain a temporary order of protection against her husband from the Criminal court for domestic violence. Six months after the issuance of the order of protection, her husband was arrested for violating the order of protection. He pleaded guilty and was imprisoned for six months. A final order of protection was issued to the wife for a period of three years.