Matter of KD v SH

[*1] Matter of KD v SH 2009 NY Slip Op 52240(U) [25 Misc 3d 1222(A)] Decided on October 27, 2009 Family Court, Bronx County Masley, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2009
Family Court, Bronx County

In the Matter of a Family Offense Proceeding under Article 8 of the Family Court Act KD, Petitioner,

against

SH, Respondent.



O-14143-09



Steven E. Brill represented respondent.

Sergio Villaverde represented petitioner.

Andrea Masley, J.

On June 8, 2009, petitioner KD, a resident of the Bronx, filed a petition for an order of protection, alleging, among other things, that respondent SH, a detective in the New York Police Department, Bronx Transit District 12, could use his firearm against her.

Ms. KD alleges in the petition that the most recent family offense occurred on September 17, 2008, nine months before she filed her petition, when an unidentified person telephoned Ms. KD, accusing her of making false accusations against respondent. She further alleges that Mr. H insulted Ms. KD and used profanity, threatening her life "during confrontations." At a time unspecified in the petition, Ms. KD alleges that Mr. H pushed her, "threw her across a room," brought her to the floor by applying "a painful hold" to her wrist, and jabbed his thumb in her eye.

A temporary order of protection, granted on June 8, 2009, directed that Mr. H surrender any and all firearms to the NYPD, stay away from Ms. KD, and refrain from all communication. The identical order was continued until November 6, 2009, by which date the court promised to issue this decision and order. On the return date of June 18, 2009, Mr. H appeared with counsel, denied the allegations, and pursuant to FCA §842-a (see endnote A) requested that Detective H be allowed to carry his weapon for work only.

It is not in dispute that the parties had an intimate relationship prior to 2006 and that a physical incident occurred on August 5, 2006. Mr. H initially moved to dismiss this family offense petition for lack of an intimate relationship during the last two years. This motion was denied as the amendment to FCA §812 does not set a time limit during which the parties have or had an intimate relationship.

At issue here is the limited question of whether Mr. H should have the use of his NYPD firearm suspended pending a full fact finding on the allegations in the petition. For reasons set forth below, the court finds that Ms. KD failed to satisfy her burden of proof. [*2]

The hearing was scheduled to begin on July 9, 2009, but petitioner was ill. The hearing began on July 10, 2009, at which Sergeant Susan Downing, Detective H's supervisor, testified. The hearing continued on July 16 and 29, 2009, at which petitioner testified. The hearing did not continue as scheduled on September 2, 2009, as petitioner was allegedly hospitalized.[FN1] The hearing could not continue on September 24, 2009 due to counsel's emergency. Ms. Bertha Masey, a custodian of records for the NYPD, testified on October 21, 2009 and counsel made closing arguments. The matter was adjourned for a trial on the underlying family offense petition to begin on February 1, 2010.

Sergeant Downing testified that she was present in court pursuant to a subpoena served 3 or 4 days prior by fax. Sergeant Downing described the procedures followed when a police officer carried a weapon for work only. When she is present, she would voucher respondent's gun. If she is not present, the desk officer would voucher the gun. Sergeant Downing testified that as a detective, Mr. H's jurisdiction includes the Bronx, where petitioner resides.

Ms. KD testified that she has had no direct contact with Mr. H since the incident on August 5, 2006. She stated that she fears for her life because he has a history of committing acts of violence against her which she never reported for fear that such a report might have negative consequences for respondent's career at the NYPD. She also testified that her car was damaged and a window in her home smashed, but conceded that she had no evidence connecting respondent to the damage.

At trial, Ms. KD submitted into evidence a certified notice of motion to amend the complaint brought in Bronx Supreme Court by Mr. H against Ms. KD seeking, among other things, damages for malicious prosecution and tortious misconduct, in addition to delivery of his alleged interest in a condominium the parties reportedly purchased together, in Ms. KD's name only, in November of 2005.

At trial, Ms. KD submitted into evidence a letter from her psychiatrist dated July 22, 2009, stating that since June of 2006 he has treated Ms. KD for depression and post-traumatic stress disorder. In the correspondence, the psychiatrist denies that Ms. KD has ever exhibited psychotic symptoms.[FN2] Ms. KD also submitted correspondence from a clinical psychologist dated July 24, 2009, verifying that Ms. KD has undergone group counseling since June, 2006 for the foregoing symptoms, and denying that she suffers from any psychosis. Ms. KD testified to being hospitalized for psychiatric illnesses three times since May 2006 and that she was on sick leave for over two years from the NYPD where she worked in internal affairs. She claims that her PTSD was caused by respondent's abuse during their romantic relationship.

Ms. KD states that Mr. H is obsessed with her and will not let her go. Her theory is based on the undisputed fact that Mr. H filed a partition action against her in Bronx Civil Supreme Court. She testified to her belief that a constructive trust, alleged in the complaint against her, [*3]means that Mr. H wishes to reside with her in their former home, where she currently resides.

In support of her theory that if Mr. H is allowed to carry a weapon during his tour, he will use his gun against her, she testified that he came to their home when they were living together while he was on duty. Once Ms. KD called Mr. H and asked him to come home to help her father unload furniture from a truck and carry it into their house, which he did while on duty. On other occasions, while they were living together in the Bronx and Mr. H was on duty, he stopped by to use the bathroom, eat a snack, and once to deliver a birthday cake to her. Once, in 2007, Ms. KD saw an unmarked police car parked on her street which she attributed to Mr. H, though she did not see who was in the car.

In opposition, on the testimony of Ms. Massey, the custodian of NYPD records, Mr. H submitted a certified NYPD Legal Bureau trial transcript of a negotiated settlement dated February 19, 2008 before a commissioner of the NYPD in a disciplinary proceeding against him, arising from a domestic incident between the parties on August 5, 2006. At the outset of that proceeding, counsel for the NYPD noted that Mr. H was found not guilty after a bench trial in Bronx Criminal Court based on allegations of assault brought by Ms. KD. Counsel for the NYPD also stated, according to transcript in evidence, that as the result of an internal investigation, it became clear to the NYPD that while a "physical argument" between the parties resulted in injuries, the NYPD "could not, with any degree of certainty, attribute those injuries to the Respondent . . ." According to the transcript, as part of the negotiated settlement, Mr. H pled guilty to engaging in an argument on or around August 5, 2006 with "an individual, identity known to this Department, which resulted in injury to said individual." As a result of this plea, the commissioner recommended that Mr. H be suspended for thirty days, which he had already served.

The purpose of a temporary order of protection is simply to provide interim protection until a hearing may be held. The standard for issuance of a temporary order of protection is whether the condition is "reasonably necessary to provide meaningful protection to the [person seeking an order of protection] and to eradicate the root of the family disturbances." Merola v Merola, 146 AD2d 611, 612 (2d Dept 1989). Alternatively, since temporary orders of protection are analogous to preliminary injunctions, the court could apply the standard for a preliminary injunction under CPLR 6301: "(1) likelihood of ultimate success on merits, (2) prospect of irreparable injury if provisional relief is withheld, and (3) balance of equities tipping in moving party's favor." Doe v Axelrod, 73 NY2d 748, 750 (1988), later proceeding, 44 Misc 2d 777 (Sup Ct, NY County, 1989). The burden of establishing all three elements necessary for a preliminary injunction rests upon the proponent, here Ms. KD. Camardo v Board of Education, 50 AD2d 1073 (4th Dept 1975).

Since the trial is scheduled for February 2010, Mr. H complained that his livelihood was at risk unless the court ruled on the surrender issue immediately. Regardless of his profession or the financial impact of the weapon surrender, Mr. H is entitled to a hearing under FCA §842-a. Effectively, the court has held a partial dispositional hearing as to one potential disposition: directing respondent, a police detective, to surrender all weapons. At trial, a petitioner must prove a family offense by a preponderance of the evidence. FCA § 832. However, the standard for a dispositonal hearing is different. "Evidence need only be material and relevant to be admissible" under FCA §834, and "hearsay evidence and other incompetent evidence is [*4]admissible." Douglas J. Besharov, Practice Commentaries, McKinney's Cons laws of NY, Book 29A, §833. Under FCA §842-a, the court must find a "substantial risk that respondent may use or threaten to use a firearm unlawfully." Should the court ultimately determine that no family offense was committed, then this hearing is irrelevant.

Ms. KD credibly testified that she continues to fear Mr. H. However, there is no evidence, thus far, that the condition of weapon surrender is necessary or that there is a likelihood of success on the merits as to weapon surrender. There is no allegation and no testimony that Mr. H has ever threatened Ms. KD with a weapon. Although stopping at his home to use the bathroom, have a snack, move a piece of furniture, and deliver a birthday cake while he was on duty may be a violation of police protocol, it is not necessarily an indication that he will go to Ms. KD's home, where he no longer resides, and where the temporary order of protection directs him to stay away and use his weapon against her.[FN3] Likewise, that Mr. H filed a civil action against Ms. KD seeking a partition of property does not mean he wishes to reconcile or live together again. Indeed, it demonstrates the opposite; he wishes to legally sever all ties to Ms. KD.

In his closing, petitioner's counsel argued that it was somehow bias for Sergeant Downing to appear pursuant to a subpoena. There was no evidence before the court that there was anything irregular about her appearance. Counsel also complained about admission of the certified and complete transcript entered on the testimony of the custodian of NYPD records as incomplete. The court invited petitioner to supplement the transcript. This issue was originally raised in June, but the NYPD file was not subpoenaed. The court rejects these arguments as a basis for the court to continue the temporary order of protection including a weapon surrender provision.

Therefore, petitioner has failed to establish by a preponderance of the evidence that there is a substantial risk that Mr. H will use his weapon against her while he is on duty or threaten to do so.

Accordingly, it is

ORDERED that the provision in the temporary order of protection directing respondent to surrender all weapons is stricken from the TOP. Respondent may carry his weapon during work hours only and must otherwise voucher his weapon at work consistent with NYPD procedures; and it is further

ORDERED, that the temporary order of protection shall otherwise continue until February 1, 2010.

ENTER:

________________________________

DATED:BRONX, NEW YORK

October, 2009

[*5]NOTICE: Pursuant to section 1113 of the family court act, an appeal must be taken within thirty days of receipt of this order by appellant in court, thirty-five days from the mailing of the order to the appellant by the clerk of the court, or thirty days after service by a party or law guardian upon the appellant, whichever is earliest.

Endnote A:

FCA § 842-a. Suspension and revocation of a license to carry, possess, repair or dispose of a firearm or firearms pursuant to section 400.00 of the penal law and ineligibility for such a license; order to surrender firearms 1. Mandatory and permissive suspension of firearms license and ineligibility for such a license upon the issuance of a temporary order of protection. Whenever a temporary order of protection is issued pursuant to section eight hundred twenty-eight of this article: (a) the court shall suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed where the court receives information that gives the court good cause to believe that: (I) the respondent has a prior conviction of any violent felony offense as defined in section 70.02 of the penal law; (ii) the respondent has previously been found to have willfully failed to obey a prior order of protection and such willful failure involved (A) the infliction of serious physical injury, as defined in subdivision ten of section 10.00 of the penal law, (B) the use or threatened use of a deadly weapon or dangerous instrument as those terms are defined in subdivisions twelve and thirteen of section 10.00 of the penal law, or (c)) behavior constituting any violent felony offense as defined in section 70.02 of the penal law; or (iii) the respondent has a prior conviction for stalking in the first degree as defined in section 120.60 of the penal law, stalking in the second degree as defined in section 120.55 of the penal law, stalking in the third degree as defined in section 120.50 of the penal law or stalking in the fourth degree as defined in section 120.45 of such law; and

(b) the court may where the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the temporary order of protection is issued, suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed.

2. Mandatory and permissive revocation or suspension of firearms license and ineligibility for such a license upon the issuance of an order of protection. Whenever an order of protection is issued pursuant to section eight hundred forty-one of this part: (a) the court shall revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed where the court finds that the conduct which resulted in the issuance of the order of protection involved (I) the infliction of serious physical injury, as defined in subdivision [*6]ten of section 10.00 of the penal law, (ii) the use or threatened use of a deadly weapon or dangerous instrument as those terms are defined in subdivisions twelve and thirteen of section 10.00 of the penal law, or (iii) behavior constituting any violent felony offense as defined in section 70.02 of the penal law; and (b) the court may, where the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the order of protection is issued, (I) revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license and order the immediate surrender of any or all firearms owned or possessed or (ii) suspend or continue to suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed. 3. Mandatory and permissive revocation or suspension of firearms license and ineligibility for such a license upon a finding of a willful failure to obey an order of protection. Whenever a respondent has been found, pursuant to section eight hundred forty-six-a of this part to have willfully failed to obey an order of protection issued by this court or an order of protection issued by a court of competent jurisdiction in another state, territorial or tribal jurisdiction, in addition to any other remedies available pursuant to section eight hundred forty-six-a of this part: (a) the court shall revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed where the willful failure to obey such order involves (I) the infliction of serious physical injury, as defined in subdivision ten of section 10.00 of the penal law, (ii) the use or threatened use of a deadly weapon or dangerous instrument as those terms are defined in subdivisions twelve and thirteen of section 10.00 of the penal law, or (iii) behavior constituting any violent felony offense as defined in section 70.02 of the penal law; or (iv) behavior constituting stalking in the first degree as defined in section 120.60 of the penal law, stalking in the second degree as defined in section 120.55 of the penal law, stalking in the third degree as defined in section 120.50 of the penal law or stalking in the fourth degree as defined in section 120.45 of such law; and (b) the court may where the court finds a substantial risk that the respondent may use or threaten to use a firearm unlawfully against the person or persons for whose protection the order of protection was issued, (I) revoke any such existing license possessed by the respondent, order the respondent ineligible for such a license, whether or not the respondent possesses such a license, and order the immediate surrender of any or all firearms owned or possessed or (ii) suspend any such existing license possessed by the respondent, order the respondent ineligible for such a license, and order the immediate surrender of any or all firearms owned or possessed. 4. Suspension. Any suspension order issued pursuant to this section shall remain in effect for the duration of the temporary order of protection or order of protection, unless modified or vacated by the court. 5. Surrender. [*7] (a) Where an order to surrender one or more firearms has been issued, the temporary order of protection or order of protection shall specify the place where such firearms shall be surrendered, shall specify a date and time by which the surrender shall be completed and, to the extent possible, shall describe such firearms to be surrendered and shall direct the authority receiving such surrendered firearms to immediately notify the court of such surrender. (b) The prompt surrender of one or more firearms pursuant to a court order issued pursuant [to] [n1] this section shall be considered a voluntary surrender for purposes of subparagraph (f) of paragraph one of subdivision a of section 265.20 of the penal law. The disposition of any such firearms shall be in accordance with the provisions of subdivision six of section 400.05 of the penal law. (c)) The provisions of this section shall not be deemed to limit, restrict or otherwise impair the authority of the court to order and direct the surrender of any or all pistols, revolvers, rifles, shotguns or other firearms owned or possessed by a respondent pursuant to this act. 6. Notice. (a) Where an order of revocation, suspension or ineligibility has been issued pursuant to this section, any temporary order of protection or order of protection issued shall state that such firearm license has been suspended or revoked or that the respondent is ineligible for such license, as the case may be. (b) The court revoking or suspending the license, ordering the respondent ineligible for such license, or ordering the surrender of any firearm shall immediately notify the statewide registry of orders of protection and the duly constituted police authorities of the locality of such action. (c)) The court revoking or suspending the license or ordering the defendant ineligible for such license shall give written notice thereof without unnecessary delay to the division of state police at its office in the city of Albany. (d) Where an order of revocation, suspension, ineligibility, or surrender is modified or vacated, the court shall immediately notify the statewide registry of orders of protection and the duly constituted police authorities of the locality concerning such action and shall give written notice thereof without unnecessary delay to the division of state police at its office in the city of Albany. 7. Hearing. The respondent shall have the right to a hearing before the court regarding any revocation, suspension, ineligibility or surrender order issued pursuant to this section, provided that nothing in this subdivision shall preclude the court from issuing any such order prior to a hearing. Where the court has issued such an order prior to a hearing, it shall commence such hearing within fourteen days of the date such order was issued. Footnotes

Footnote 1:The court awaits a doctor's note explaining this absence.

Footnote 2:The court admitted into evidence letters from the psychiatrist and psychologist only with respect to the professional diagnosis and treatment rendered. The court ruled inadmissible any hearsay statements contained in the correspondence. The parties rejected the court's offer to redact the documents before submitting them into evidence.

Footnote 3:While the court would prefer that Mr. H be assigned to any borough other than the Bronx, that issue is not before this court.