People v Gurnett

[*1] People v Gurnett 2017 NY Slip Op 27423 Decided on December 26, 2017 Justice Court Of The Town Of Webster, Monroe County DiSalvo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on December 26, 2017
Justice Court of the Town of Webster, Monroe County

The People of the State of New York, Plaintiff,

against

Chad A. Gurnett, Defendant.



17110033



John Coniglio, Assistant District Attorney

Brandon Hellwig, Assistant Public Defender
Thomas J. DiSalvo, J.

History of the Case

The defendant was charged with menacing in the second degree, in violation of Penal Law § 120. 14 and harassment in the second degree in violation of Penal Law§ 240.26 (1) stemming from an incident alleged to have occurred on November 5, 2017 about 11: 12 A.M. involving his sister, who was currently residing in the same residence. In her supporting deposition the complainant stated that the parties"... a verbal argument which lead him to chest bumping me. I raised my hands in self-defense. He then pushed me back by my neck with one hand and with the other raised a hammer. He then said 'I'm going to finish you off this time."' The Monroe County Public Defender's Office represented the defendant at an arraignment later that day at approximately 1:25 P.M. At the conclusion of the arraignment he was released on his own recognizance. However as a condition of said release a temporary no contact order of protection pursuant to CPL § 530.12 (1) was issued, which directed the defendant to stay away from the home of, the business of, and the place of employment of his said sister. In addition the order of protection directed the defendant to refrain from any communication with said complainant. However, the order of protection permitted the defendant to enter the common residence of the defendant and his sister, at a time to be determined with an officer of the Webster Police Department to obtain his clothing, personal effects and tools.

Subsequently that same day, November 5, 2017, the defendant was charged with criminal contempt in the second degree, in violation of Penal Law § 215.50 (3). It was alleged in the information that the defendant returned to his residence later that afternoon at approximately 5:30 P.M. His sister, who was the protected party in said order of protection, indicated in a supporting deposition, that she also returned to the said residence only to find her brother, unaccompanied by the police, retrieving his belongings and complaining to her that be was homeless. The sister then contacted the Webster Police. On November 7, 2017 this court issued an arrest warrant for the defendant.With the permission of the court an appearance ticket was issued by Webster Police to the defendant directing him to appear in this court on Novcmber 15, 2017 at 2:00 P.M. He was arraigned on that date and time and was represented by the assistant public defender at the arraignment.

However, the defendant was again arrested by the Webster Police on November 14, 2017, who charged him with criminal contempt in the second degree, in violation of Penal Law § 215 (3). It was alleged in the information by Officer Samuel Coolidge that he observed the defendant "...looking into the front door window where his sister ... was staying and has a stay away order of protection against Chad A. Gurnett." The officer issued the defendant [*2]another appearance ticket to appear in court for an arraignment on the following day.[FN1] At that comi date he was arraigned on said charge along with the criminal contempt second degree charge stemming from the incident alleged to have occurred on November 5, 2017. He was released on his own recognizance on both criminal contempt charges. The original temporary no contact order of protection remained in effect.

On November 15th and at a subsequent disposition calendar defense counsel verbally requested that the court modify the temporary order of protection to allow the defendant to return to his residence. It is uncontroverted that the residence in question is a single family residence owned by the mother of the defendant and his sister. In fact, defense counsel represented that the defendant's mother was prepared to testify that her complainant/daughter did not have permission to reside at her home. As a result, defense counsel on both occasions verbally requested that the temporary order of protection be amended in a way that would permit the defendant to resume residing at his mother's home. In the alternative, defense counsel requested that the court conduct a "Forman Hearing", based on People v. Forman (145 Misc 2d 115, 546 N.Y.S.2d 755 [1989]). The purpose of such a hearing would be to determine if there was substantial evidence to support the continuation of a temporary order of protection excluding the defendant from his residence in his mother's home, because as he alleges the complainant did not have permission to reside in the mother's said residence.[FN2]

Issue Presented.

Is the court required to conduct a hearing to determine if there is substantial evidence to support the continuation of the temporary order of protection issued at the arraignment of the defendant?

Legal Analysis.

The order of protection issued by the court at the initial arraignment of the defendant did not specify any address in paragraph "[01]", wherein the defendant was directed to stay away from the "home of', "business of' and "place of employment of' the defendant's sister. In addition, the order of protection, under paragraph designated "[14]" directed the defendant to refrain from any "communication or any other contact" with the said complainant. Finally, paragraph designated"[11]"permitted the defendant to enter his residence with a police officer at a time to be determined with the Webster Police Department to obtain certain personal items. However, that latter paragraph was based on the purported presence of the complainant in said residence. It was the complainant that was protected by the order not the residence.If the complainant permanently removed herself from the residence the latter provision would as a matter of practicality be moot.

Nevertheless, the defendant does not maintain that his sister no longer physically resides in his mother's property. The argument is that the sister is not authorized by the defendant's mother and property owner to reside in the property. Thus even if the order of protection was modified to read that the defendant was to stay away from the current home of his sister and/or to stay away from the residence in question as long as it was the current home of the complainant, the defendant would not necessarily be better off. Certainly if the defendant's sister [*3]continued to stay at the mother's residence, despite the mother's desire to the contrary, contact of the defendant with his sister in said residence, would subject the defendant to another charge of criminal contempt in the second degree.

The facts in People v. Carrington (12 Mis.3d ll89[A], 2006 NY Slip Op 51499[U] [2006]) are very similar to the fact pattern in the instant case. In Carrington the court stated that

"At arraignment, this Court, over Defendant's objection, signed a temporary order of protection ("TOP") pursuant to CPL § 530.12 that, in relevant part, ordered Defendant to stay away from [Christine] St. Louis and her home, effectively excluding the defendant from his home for the duration of the TOP, but permitted Defendant to move for a hearing pursuant to People v. Forman, 145 Misc 2d 115, 546 N.Y.S.2d 755 (Crim. Ct. NY Co. 1989). The TOP further permitted the defendant to enter his home at a specified date and time, accompanied by officers of the New York Police Department, in order to obtain documentation regarding his ownership of the premises and to remove personal belongings."[FN3]

It is not contested that this court was justified in issuing a stay away order of protection in favor ofthe complainant."The aim of the TOP [Temporary Order of Protection], protecting the complaining witness, is of paramount importance."[FN4] The initial question becomes what is to be determined as a result of having a "Forman Hearing"? "It is within the Court's discretion to order an evidentiary hearing to be held shortly after arraignment when warranted by the circumstances of the case, in order for the Court to more accurately determine whether it would be appropriate to modify the TOP signed at arraignment so as to permit the defendant to remain in his residence. People v. Koertge, 182 Misc 2d 183, 191,701 N.Y.S.2d 588,595 (Nassau Dist. Ct.1998); Faieta, 109 Misc 2d at 848."[FN5]

The defendant has a due process right to be heard on the issue of being ordered out of what has been his residence. The defendant was given an opportunity to be heard through his attorney at arraignment relative to the issue of the issuance of an order of protection of the type contemplated herein. "Notwithstanding that a hearing may be required, the nature of the required hearing need rarely be testimonial in order to satisfy due process when the defendant seeks modification of a TOP which excludes him from his residence."[FN6]

The facts of this case involve a dispute between a brother and a sister as to who would be pem1itted to live in their mother's residence. Presumably the mother will side with the defendant on this issue. Nevertheless, this court has no authority, after a hearing, to order the sister to remove herself from her mother's residence so her brother can move back in to that residence. Thus a local criminal court is probably the worst place to attempt to settle this issue. If the owner of the residence, namely the mother of the complainant and defendant does not want either or both of her children to live in her residence it is up to her to bring an ejectment action under Article 6 of the Real Property Actions and Proceedings Law in Supreme Court in an attempt to remove either or both of said individuals from her home. A Summary Proceeding pursuant to A1iicle 7 or the Real Property Actions and Proceedings Law would not be an option of the mother, who is the owner of the prope1iy. It has long been the law in this state that "With limited exceptions, a family member may not evict another family member in a summary proceeding." (Ukeiley, Landlord & Tenant Disputes in New York, at 47 [2nd Edition]). The [*4]court at a Forman Hearing would have to determine if exclusion of the defendant"... from his residence would truly be necessary in order to achieve the aims of the TOP [Temporary Order of Protection]."[FN7]

However as long as the complainant reportedly insists on living in the premises it would not seem prudent to modify the temporary order of protection to allow the defendant to return to the premises. "Of all possible forums, the Criminal Court is the one least able to expeditiously resolve any party's claim to a particular location as constituting a residence to which that party is entitled. The Legislature did not intend to have issues as to entitlement to residential property determined by the Criminal Court." [FN8] Nor is it the duty of the criminal court to make a determination as to whether or not the complainant does or should in fact reside in the former residence of the defendant.

Conclusion.

Based on the allegations made in the accusatory instruments, the facts as presented by both counsel, the subsequent charges of criminal contempt in the second degree filed against the defendant and the fact that the property owner is the one who has the standing to restrict who resides in her home, the defendant's request to modify the current temporary order of protection is denied. Finally, since this court is not the appropriate forum to determine the proper living arrangements of the complainant and defendant relative to who is or who should reside in the home of their mother, the request for a Forman Hearing is also denied.

Dated: December 26, 2017

Webster, New York

Hon. Thomas J. DiSalvo

Webster Town Justice Footnotes

Footnote 1: CPL § 140.20 (2) (a) states that: "If the arrest is for an offense other than a class A, B, C or D felony or a violation of section 130.25, 130.40, 205.10, 205.17,205.19 or 215.56 of the penal law, the arrested person need not be brought before a local criminal court as provided in subdivision one, and the procedure may instead be as follows: (a) A police officer may issue and serve an appearance ticket upon the arrested person and release him from custody, as prescribed in subdivision two of section 150.20."

Footnote 2: Id. at 120, 759.

Footnote 3:Id. at *1.

Footnote 4:ld. at *2.

Footnote 5: ld. at *2.

Footnote 6: Id. at *3.

Footnote 7:Id. at *4.

Footnote 8:Id. at *3.