Weiner v State of New York

[*1] Weiner v State of New York 2010 NY Slip Op 50533(U) [27 Misc 3d 1203(A)] Decided on March 26, 2010 Supreme Court, Suffolk County Whelan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 26, 2010
Supreme Court, Suffolk County

Don Weiner, Petitioner,

against

The State of New York, HONORABLE DAVID PATTERSON, Governor of the State of New York, HONORABLE G. ANN SPELMAN, as a Judge of the District Court held in and for the County of Suffolk, and THOMAS SPOTA, ESQ., acting as the duly elected District Attorney of the County of Suffolk, Respondents



33612-09



ROBERT J. DEL COL, ESQ.

Atty. For Petitioner

1038 W. Jericho Tnpk.

Smithtown, NY 11787

ANDREW M. CUOMO, Attorney General

Atty. For State Respondents

300 Motor Pkwy.

Hauppauge, NY 11788

By: Lori Pack, Esq.

Assist. Atty. General

MICHAEL BLAKEY, Assist. Dist. Atty.

Atty. For Resp. Thomas Spota, Esq.

200 Center Dr.

Riverhead, NY 11901

BRIAN CALAHAN Litigation Bureau Chief

Suffolk County Atty.

Atty. For County Respondents

100 Veterans Memorial Hwy.

Hauppauge, NY 11788

Thomas F. Whelan, J.

it is,

ORDERED that the undated Order to Show Cause (Pines, J.) (#

008) seeking various forms of injunctive relief and an order declaring Criminal Procedure Law §530 unconstitutional is denied; and it is further

ORDERED the motion (#

009) to dismiss as against the State Defendants pursuant to CPLR §§ 3211(a)(2), 3211(a)(5), and 3211(a)(7) is granted; and it is further

ORDERED AND ADJUDGED that the filed petition is dismissed in its entirety.

This Order to Show Cause was originally returnable on October 15, 2009, before another Justice of this court. After the recusal of that Justice and seven other Justices, this matter was randomly reassigned to the undersigned on March 24, 2010.

Petitioner is charged with a family offense (a misdemeanor and a violation) involving his two preteen sons. At the arraignment, held at the First District Court on April 3, 2009, the Hon. John J. Toomey issued a temporary stay away order of protection (TOP), pursuant to Criminal Procedure [*2]Law §530.12. The TOP had an expiration date of April 8, 2009. There is no indication in the record that either Judge Toomey directed a TOP hearing or that one was requested by petitioner or his counsel at that time.

On that return date, petitioner and his counsel appeared and while, apparently, certain conversations were held off-the-record, including the presentment of a tape recording of the event to the Assistant District Attorney, the record is devoid of any request by petitioner's counsel for a TOP hearing before the assigned judge, the Hon. G. Ann Spelman. In fact, the transcript reveals that upon the presentment of an amended order of protection by the Assistant District Attorney, an opportunity to spread the matter on the record was offered to petitioner's counsel for 2:30 p.m. but, aside from a general objection, the record fails to disclose that a request for a TOP hearing was formally made.

COURT CLERK: Don Wiener.

MR. BENGIS: People re-handing up an amended order of protection for stay away.

MR. DELCOLE: Bob Delcole for the defendant. I object to the court amending the order of protection in this case for the following reasons.

The People have not come forward with any reason, whatsoever, it should not be extended. This order of protection is keeping him from his children judge, therefore as a matter of fact an order of protection was entered ex parte.

THE COURT: If you want to put this on for a bench conference on the record but I want to make the record clear we will do that at 2:30.

MR. DELCOLE: I am making a formal record.

THE COURT: Let's put this over to 2:30 we can spread it all over the record.

MR. DELCOLE: I am just objecting.

MR. BENGIS: People ready for trial, judge.

THE COURT: Let's step up and pick a trial date.

(Whereupon, an off-the-record discussion was held.)

THE COURT: This matter is on for the 15th, if you wish to have your client's appearance waived.

MR. DELCOLE: Yes, your honor. [*3]

MR. BENGIS: There are photographs.

COURT OFFICER: The defendant is served with the order of protection.

MR. DELCOLE: Acknowledge receipt.

Thereafter, as set forth in the civil minutes of the County Clerk, a notice of petition and petition of an Article 78 proceeding was filed therewith on August 24, 2009. No Request For Judicial Intervention (RJI) was filed for that special proceeding. Subsequently, on August 27, 2009, an application for the instant Order to Show Cause was argued before the Hon. Emily Pines, J.S.C. A transcript of that argument is before the Court. Justice Pines declined to stay the temporary order of protection and struck that provision from the Order to Show Cause. That order was accompanied by an RJI that was specific to the Order to Show Cause. It appears from the record, that the Article 78 petition, with the separate notice of petition, was never initialized for submission to the Supreme Court. What is before the Court is just the undated Order to Show Cause signed by Justice Pines and various motion papers in opposition to that request and in reply thereto.

In essence, petitioner seeks to set aside the order of protection signed by Judge Spelman on April 8, 2009 (which expires on April 8, 2010), and seeks a declaration that CPL §530.12 is unconstitutional. Petitioner argues that he is entitled to a full evidentiary hearing, at his request, before a TOP is issued or continued. To begin, petitioner can not seek in the motion before the Court, as a provisional remedy, the entire relief that he demands in the Article 78 proceeding. Provisional remedies are limited to those set forth in CPLR 6001, which are not applicable to the instant matter. While a stay in an Article 78 proceeding may be sought pursuant to CPLR 7805, this Court declines to do so on its own initiative.

With regard to the relief requested in the Order to Show Cause "[f]or an order granting in its entirety the Petition filed pursuant to CPLR Article 78, together with an order declaring CPL 530 unconstitutional," upon review of the petition annexed as an exhibit to respondents' papers and the papers submitted by all parties that address that issue, the Court finds that petitioner's claims must be dismissed.

The transcript (p. 6) of the argument before Justice Pines highlights petitioner's claim that "first of all, the challenge that we're bringing is an Article 78 challenge." As noted by the respondents, this Article 78 proceeding was filed on August 24, 2009, more than four months from April 8, 2009, the date of the challenged temporary order of protection. There is little doubt that the TOP became final and binding on the petitioner at that time (see CPLR 217). Such, renders the proceeding time-barred.

As for the request to declare CPL §530.12 unconstitutional, there is no showing of compliance with the procedures set forth in Executive Law §71 and CPLR §1012(b). Moreover, aside from respondents' claim that the validity of a legislative act is not subject to review by an Article 78 proceeding (see New York City Health and Hosps. Corp. v McBarnette, 84 NY2d 194, [*4]616 NYS2d 1 [1994]), petitioner has failed to meet his heavy burden of proving the unconstitutionality of the statute beyond a reasonable doubt (see Schultz Mgt. v Board of Stds. and Appeal of City of New York, 103 AD2d 687, 477 NYS2d 351 [1st Dept 1984]; affd 64 NY2d 1057, 489 NYS2d 902 [1985]). As recognized, legislative enactments are imbued with a strong presumption of constitutionality (see Cook v City of Binghamton, 48 NY2d 323, 422 NYS2d 919 [1979]). In the absence of a clear showing of unconstitutionality, trial courts should presume the validity of statutes (see People v Fitzpatrick, 61 Misc 2d 1043, 308 NYS2d 18 [County Ct., Oneida County 1970]).

Petitioner claims, in paragraphs EIGHTEENTH and NINETEENTH of the petition, that he was denied an adequate remedy, that is, a meaningful opportunity to be heard. However, the transcript of the April 8, 2009 proceedings before Judge Spelman fails to disclose that infirmity.

As set forth in the statute at issue, a TOP is issued in a family offense matter as a condition of recognizance or bail (see CPL §530.12). That statute provides that the Court may issue a TOP upon the filing of a facially sufficient accusatory instrument and for good cause. Factual challenges are issues for trial. Here, the record reveals that the two accusatory instruments and the sworn statement of Jake Weiner provided sufficient good cause for the issuance of the TOP. The record further discloses that counsel was given an opportunity to argue to the contrary.

The aim of a TOP, protecting the complaining witness or family member, is of predominant importance. As noted in People v Bongiovanni, 183 Misc 2d 104, 105-6, 701 NYS2d 613 (Sup Ct., Kings County 1999), "[u]ntil there is a determination of guilt or innocence the court is responsible not only to seek justice by safeguarding the rights of the defendant; it must also insure that the complainant is secure and that societal peace is preserved during the pendency of the action." Petitioner's rights as a noncustodial parent are fundamental and are not to be ignored (see In re Jung, 11 NY3d 365, 870 NYS2d 819 [2008]). However, that does not end the inquiry. "While these private interests are deserving of constitutional protection, the state's extraordinary interest in protecting victims of domestic violence from actual or threatened injury and children from the effects of exposure to domestic violence justifies the use of immediate measures to stop violence"(Breger, Elkins and Fosbinder, New York Law of Domestic Violence, at 509 [2d ed. 2007]).

Petitioner's claim that he is entitled to a full evidentiary hearing is unsupported by law or by due process considerations. While an evidentiary hearing may be appropriate, the need for such a hearing and the form thereof, is best left to the discretion of the arraignment judge (see People v Meggie, 184 Misc 2d 883, 712 NYS2d 316 [Dist Ct, Nassau County 2000]; People v Koerige, 182 Misc 2d 183, 701 NYS2d 588 [Dist Ct, Nassau County 1998]; People v Faieta, 109 Misc 2d 841, 440 NYS2d 1007 [Dist Ct, Nassau County 1981]; People v Carrington, 12 Misc 3d 1189(A), 824 NYS2d 764 [Crim Ct, Kings County 2006]; In the Matter of Lopez v Hon. Fischer, NYLJ, 12/15/09, p 26, col. 3, 2009 WL 473590 [Sup Ct, Nassau County 2009]; Nadeau v Sullivan, 204 AD2d 913, 612 NYS2d 501 [3d Dept 1994]; compare People v Forman, 145 Misc 2d 115, 546 NYS2d 755 [Crim Ct, New York County 1989]). [*5]

As long as a meaningful opportunity to be heard is afforded, due process is satisfied. Such does not equate with a full evidentiary hearing, particularly in light of the strong state interest to protect victims of domestic violence. As noted in People v Hayday, 144 AD2d 207, 208, 534 NYS2d 521 (3d Dept 1988), "there is no constitutional or statutory right to confront an a accuser prior to trial." All that is required is that the judge must ascertain sufficient facts, which are discernable from the record, as to whether or not a TOP should be issued or continued. Simply put, is there a continuing danger of injury or intimidation to the complainant.

Moreover, to ameliorate any perceived hardships, the statute expressly provides for a motion to vacate or modify a temporary order of protection, on notice to the non-moving party (see CPL §530.12 [15]). The record reveals that petitioner has sought such relief from the District Court by Order to Show Cause dated July 20, 2009. Additionally, the statute provides for modification of the TOP to lessen the impact on the family relationship by providing for visitation with children by one who is subject to a TOP (see CPL §530.12 [1][b]). Such procedures sufficiently protect petitioner's right to due process and leads to the conclusion that the State Legislature intentionally declined to provide for an evidentiary hearing before a TOP is issued or continued under CPL §530.12 (compare CPL §530.12[11][a] [hearing provided if bail or recognizance is revoked for failure to obey the terms and conditions of the order]).

Therefore, this Court declines petitioner's invitation to declare CPL §530.12 unconstitutional (see People v Koerige, 182 Misc 2d 183, supra ), since he failed to establish same beyond a reasonable doubt (see McKinney's Cons. Laws, Book 1, Statutes §150[b]). For the reasons set forth above, the Court declines to award relief in the nature of prohibition (cf. In the Matter of Lopez v Hon. Fischer, NYLJ, 12/15/09, p 26, col. 3, supra [subsequently assigned judge refused to comply with the bail order for a TOP hearing directed by order of the arraignment judge]). Finally, the Court finds the additional request to view the petition in the context of a writ of Habeas Corpus, pursuant to CPLR §7002, to be without merit (see 64 NY Jur 2d Habeas Corpus §11; see also 22 Carmody-Wait 2d §139:9; People ex rel. Wilder v Markley, 26 NY2d 648 [1970]; People ex rel. Uqdah v New York State Bd. of Parole, 108 AD2d 888 485 NYS2d 974 [2d Dept 1985]; People ex rel. Hampton v Schrader, 34 AD2d 1000, 312 NYS2d 740 [2d Dept 1970]; People ex rel. Palumbo v New York State Div. of Parole, 135 Misc 2d 683, 516 NYS2d 851 [Sup Ct, Bronx County 1987]).

Accordingly, the relief requested in the Order to Show Cause is denied, the motion to dismiss is granted and the proceeding is dismissed. This constitutes the decision, order and short form judgment of the Court.

DATED: ______________________________________________

THOMAS F. WHELAN, J.S.C.