People v Palmer

[*1] People v Palmer 2005 NY Slip Op 51625(U) [9 Misc 3d 1117(A)] Decided on October 4, 2005 Justice Court Of Tuckahoe, Westchester County Fuller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 4, 2005
Justice Court of Tuckahoe, Westchester County

The People of the State of New York, Plaintiff,

against

Anthony Palmer, Defendant.



XXXX



Hazem J. Ennabi, Assistant District Attorney, for plaintiff. Joseph Goubeaud, Jr., for defendant

David Otis Fuller, J.

Defendant has requested that the order of protection in this matter, dated April

26, 2005 and expiring April 26, 2008, be modified to permit him to associate and have

contact with the beneficiary of the protective order.

The beneficiary has also appeared and is seeking the same relief. The order of

protection was issued as a result of a conviction for criminal contempt in the second

degree arising out of assault and related charges filed on December 6, 2004.

The prosecutor, while acknowledging that the court has the ability to modify the order of

protection (see People v. Garris, 159 Misc 2d 586 (Dist. Ct., Nassau 1993), appeal

dismissed, 166 Misc 2d 362, (App. Term 2d Dept), appeal denied, 88 NY2d 1020), has

elected not to participate in the proceedings, but opposes the modification.

The beneficiary, unrelated to the defendant, testified that she is satisfied that the [*2]

defendant will not harm her and stated he has undergone an anger management course to

help correct his behavior. She also stated that she feels that her ten-year old daughter, the

other beneficiary of the protective order, will not in any way be endangered if the

defendant is allowed to visit them.

The defendant testified that he is confident that he will be able to get along with

the beneficiary and promised that he will not act in any way detrimental to her or her

daughter.

Defense counsel has reminded his client in open court that if the defendant violates

the order of protection he will be subject to immediate incarceration.

The court appreciates the People's position and also recognizes that the defendant

has been interviewed by the Domestic Violence Bureau which has advised that the order

of protection remain unchanged.

Based upon the conviction for criminal contempt, there was good cause to issue the

order of protection in April (CPL 530.13). Now, with the changed circumstances testified

to, the court does not find a significant risk of harm if the defendant and beneficiary

are permitted to be with each other. The court is also reluctant to compel two adults to

stay apart when both wish to resume their former relationship.

Accordingly, the court will modify the order of protection to permit the defendant

and beneficiary to be with each other and maintain contact. In all other respects, the order

of protection will remain in full force and effect.

[*3]

Dated: October 4, 2005 _______________________________

DAVID OTIS FULLER, JR.

VILLAGE JUSTICE