People v Carrington

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[*1] People v Carrington 2006 NY Slip Op 51499(U) [12 Misc 3d 1189(A)] Decided on May 3, 2006 Criminal Court Of The City Of New York, Kings County Gerstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2006
Criminal Court of the City of New York, Kings County

The People of the State of New York


Eric Carrington, Defendant.


Michael J. Gerstein, J.

The defendant, Eric Carrington, was arraigned in this court on January 19, 2006, on charges of assault in the third degree (PL § 120.00(1)), attempted assault in the third degree (PL § 110/120.00(1)), menacing in the third degree (PL § 120.15), and harassment in the second degree (PL § 240.26(1)). The Complaint alleges that on January 18, 2006, at 263 Sutter Avenue in Brooklyn, New York, Defendant grabbed the arms of his girlfriend, Christine St. Louis ("St. Louis"), and "did squeeze informant's arms tightly." At arraignment, the Assistant District Attorney represented that St. Louis did not receive any medical attention as a result of this alleged incident.

263 Sutter Avenue is Defendant's residence, where he lived with St. Louis at the time of his arraignment. Defendant alleged that he had resided at that address for nine years, and further alleged that St. Louis had resided there with him for only a few months.

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 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 NYS2d 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.

Temporary Orders of Protection

A temporary order of protection is issued as a condition of recognizance or bail. CPL § 530.12(1); CPL § 530.13(1). Although CPL § 510.20 provides that the defendant must be accorded an opportunity to be heard regarding the details of recognizance or bail, an evidentiary hearing is not required, and would be excessively onerous in most cases. See Forman, supra .; People v. Faieta, 109 Misc 2d 841, 440 NYS2d 1007 (Nassau Dist. Ct. 1981). "[T]he State has an interest in the issuance of the TOP at the earliest possible time, since the danger of intimidation and injury to the complainant, if it exists, is an immediate one. In a very real sense, [*2]the issuance... is an emergency decision." Forman, 145 Misc 2d at 127-8. The defendant is given an opportunity to be heard at arraignment, which in most cases satisfies the requirements of CPL § 510.20.

The standard to be applied in determining whether to issue a temporary order of protection as a condition of bail or recognizance is whether there is a "danger of intimidation or injury" to the complaining witness. People ex rel. Klein v. Kruger, 25 NY2d 497, 255 NE2d 552, 307 NYS2d 207 (1969); People ex rel. Feldman v. Warden, New York Detention Facility, 48 AD2d 789, 369 NYS2d 420 (1st Dept. 1975), rev. on other grounds 37 NY2d 760, 337 NE2d 140, 374 NYS2d 631 (1975); Forman, 145 Misc 2d at 124. The factors the court must consider in determining whether to issue a TOP that excludes Defendant from his residence include, but are not limited to, "whether the temporary order of protection is likely to achieve its purpose in the absence of such a condition, conduct subject to prior orders of protection, prior incidents of abuse, past or present injury, threats, drug or alcohol abuse, and access to weapons." CPL § 530.12(1)(a); see also People v. Schwartz, 12/17/99 N.Y.L.J. 33 (Crim. Ct. Kings Co.).

This is not a balancing test, with the defendant's interest in retaining possession of and residence in his home on one side, and the danger of intimidation or injury to the complaining witness on the other side. The aim of the TOP, protecting the complaining witness, is of paramount importance. See L. 1994, ch. 222, § 1; Reynolds v. Fraser, 5 Misc 3d 758, 761, 781 NYS2d 885, 888 (Sup. Ct. NY Co. 2004); Forman, 145 Misc 2d at 127 ("Domestic violence has come to be recognized as a social scourge of the first order."). The issue is whether that aim can be achieved without the substantial deprivation that results from excluding the defendant from his home, given the circumstances of the case.

The Nature of 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 NYS2d 588, 595 (Nassau Dist. Ct. 1998); Faieta, 109 Misc 2d at 848.

The defendant has a property interest in his right to occupy and possess his residence sufficient to invoke due process protection. People v. Garland, 69 NY2d 144, 505 NE2d 239, 512 NYS2d 796 (1987); Barry v. Barchi, 443 U.S. 55, 64, 99 S. Ct. 2642, 2649, 61 L. E. 2d 365, 374 (1979). Depriving the defendant of his residence for the duration of a pending case constitutes a deprivation of property with constitutional due process implications. Where the defendant's opportunity to oppose so much of the TOP as excludes him from his residence is limited to the argument of counsel at arraignment, and where it appears that the opportunity to present further evidence would allow the defendant to prove grounds sufficient to persuade the Court to exercise its discretion in modifying the TOP, defense counsel's opportunity to argue at arraignment may not qualify as the meaningful opportunity to be heard which is required in order to comport with due process. Burns v. United States, 501 U.S. 129, 137-8, 111 S. Ct. 2182, 2187, 115 L. Ed. 2d 123, 133 (1991) ("This Court has readily construed statutes that authorize [*3]deprivations of liberty or property to require that the Government give affected individuals both notice and a meaningful opportunity to be heard" (emphasis in original)); Matthews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18, 32 (1976) ("The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner"); Boddie v. Connecticut, 401 U.S. 371, 377, 91 S. Ct. 780, 785, 28 L. Ed. 2d 113, 118 (1971) ("due process requires... a meaningful opportunity to be heard"); Dobkin v. Chapman, 21 NY2d 490, 501, 236 NE2d 451, 457, 289 NYS2d 161, 170 (1968) ("Notice and an opportunity to be heard are, of course, high among the traditional elements of fair procedure included in the concept of due process.").

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. The United States Supreme Court has recognized that the meaningful opportunity to be heard required in order to provide to due process "tolerates variances in the form of a hearing appropriate to the nature of the case.'" Fuentes v. Shevin, 407 U.S. 67, 82, 92 S. Ct. 1983, 1995, 32 L. Ed. 2d 556, 571 (1972), citing Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950). The hearing required by due process "is not fixed in form." Boddie, 401 U.S. at 379.

Forman Hearings are Discretionary and Should be Rarely Ordered

Given the latitude permitted in the process which is due, combined with the nature of the interests (including those of both the protected party and the defendant) at stake, the Court should also consider the availability of other forums where a defendant aggrieved by a TOP may seek relief. It is significant that the TOP provides, in pertinent part, that the defendant must stay away from the "home" of the protected party; it does not specify any particular location as constituting the protected party's home, nor does it purport to determine the home or residence of any party. Simply put, the TOP's reference to the complainant's home, among other things, is merely to effectuate the purpose of the TOP - to keep the defendant away from the complainant, and not to make findings as to any person's entitlement to any particular residence. Thus, a defendant aggrieved by a TOP is free to commence a proceeding in Housing Court to evict the protected party from any location which the defendant alleges to be his residence. In some cases, the Family Court may also have jurisdiction to decide competing claims to a particular residence. Supreme Court would have jurisdiction over an ejectment action, and other causes of action which could affect the rights of the defendant and the protected party to reside at a particular location.

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. See L. 1972, ch. 982, § 1.

Furthermore, the complaining witness, who may be claiming entitlement to reside at a particular location, is not a party to the Criminal Court proceeding. If the Criminal Court were to decide that the defendant should be entitled to remain at the specific premises (e.g. if this Court [*4]were to find in the instant case that Defendant is entitled to reside at the Sutter Avenue location), that holding would not likely be given res judicata or issue preclusion effect in any subsequent proceeding.[FN1]

Perhaps most importantly, it would be a diversion of important judicial resources to require the Criminal Court to determine issues of landlord/tenant and real property law such as those raised by Defendant herein, particularly in view of the Legislature having vested jurisdiction of landlord/tenant matters with the Housing Court and other real property matters with the Supreme Court.

Thus, the Court concludes that Forman hearings should be sparingly ordered, only where the contentions of the defendant regarding entitlement to the residence, if proven, are such as the Court would consider sufficiently compelling to modify so much of the TOP as excludes the defendant from the residence, and where there exists some valid reason why the defendant cannot expeditiously obtain relief in another forum.

Defendant's Motion for a Forman Hearing

This case provides a stark lesson as to the reason Forman hearings are so rarely ordered. Defendant alleged at arraignment that he had lived at the Sutter Avenue address for nine years, whereas St. Louis had only moved in with him several months beforehand, and further alleged that he held the title and paid the expenses of the residence. These allegations, if proven, combined with other factors appearing at arraignment (e.g. no physical injury to St. Louis requiring medical attention), might constitute grounds for modification of the TOP at the discretion of the Court, and might render it unjust to order Defendant to exclude himself from his own property and home of nine years on the basis of unverified allegations [FN2], without granting him the opportunity to present further evidence to help the Court determine whether such exclusion from his residence would truly be necessary in order to achieve the aims of the TOP.

Defendant's papers in support of the motion, however, tell a far different story than that presented at arraignment. Defense counsel's affirmation admits that St. Louis is named on the title to the premises, but alleges that the deed naming her is fraudulent, and that Defendant has been the sole owner of the premises throughout his residence at that address. See Affirmation of [*5]Damien Brown, Esq. at 4-5. Defendant's allegation of fraud as to the deed is not appropriate for resolution by this Court. Jurisdiction to resolve such matters is vested in the Supreme Court, New York's court of general jurisdiction. See NY Const. Art. VI, § 7.

There is a more fundamental reason as to why Defendant's motion must be denied. Defendant has not submitted an affidavit, a copy of the deed, or any other evidence. The only papers submitted on behalf of Defendant were an affirmation from defense counsel and a memorandum of law. Defense counsel's hearsay affirmation lacks probative value and is insufficient as a matter of law to warrant further hearing. See generally People v. Reilly, 136 AD2d 355, 527 NYS2d 234 (2d Dept. 1988).


Under the circumstances of the instant case, the oral argument at arraignment, together with the exchange of affidavits and legal memoranda in the instant motion, gave Defendant the necessary opportunity to be heard required by due process. Accordingly, Defendant's motion for a Forman hearing is denied in its entirety.

Defendant remains free to commence such proceedings as he may be advised to pursue in Housing Court or Supreme Court to recover possession of the Sutter Avenue premises, or to have the deed in issue declared null and void based on the alleged fraud.

The foregoing is the decision and order of the Court.

Dated:May 3, 2006

Brooklyn, New York ______________________________




Footnote 1:While the District Attorney would presumably tend to the interests of the complaining witness at a Forman hearing, in actuality the District Attorney represents the State, and not the complaining witness. There is no provision in the CPL equivalent to CPLR § 1013 allowing the complaining witness to intervene and be represented by her own counsel at such a hearing. Even if that were permitted, there is no basis for requiring intervention or joinder of the complaining witness.

Footnote 2: At the time this Court issued the TOP, the Complaint had yet to be verified, which would be necessary to convert it to an information sufficient to support prosecution. CPL § 100.40(1)(c); People v. Alejandro, 70 NY2d 133, 511 NE2d 71, 517 NYS2d 927 (1987).