Matter of Albert G. v Sheryl G.
Annotate this CaseDecided on October 3, 2012
Family Court, Queens County
In the Matter of a Family Offense Proceeding under article 8 of the Family Court Act Albert G., Petitioner,
against
Sheryl G., Respondent.
O-1079/12
Counsel: Loran Shlevin. Building Services Legal Services Fund, New York City, for petitioner.
Veronica Escobar, Jamaica, NY for respondent.
John M. Hunt, J.
Respondent has moved for an order vacating the order of fact-finding dated March 7,
2012 which found that she had committed the family offense of Disorderly Conduct (Fam.
Ct. Act §812 [1]; Penal Law §240.20), as well as the order of disposition entered on the same
date which suspended judgment in accordance with Family Court Act §841(b).
By petition filed pursuant to Family Court Act §821 (1) on January 9, 2012 the petitioner,
Albert G., alleged that the respondent, Sheryl G., had committed one or more family offenses
within the meaning of Family Court Act §812 (1). The petition alleged that the parties
are married and residing together in the marital residence, and that their child, Isaiah G.
(born September 14, 1995), resides in the home with the parties. More specifically, the petition
alleged that "on January 7, 2012 at [the] home of both parties, petitioner states respondent cut my
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right arm with a glass . . . petitioner received stitches at Jamaica Hospital. In the past, respondent
smacked petitioner on two separate occasions."
The parties first appeared before the Court on January 9, 2012 and respondent's attorney
advised the Court that a concurrent criminal action had been commenced against the wife based
upon the same incident alleged in the family offense petition (see, Fam. Ct. Act §§812 [1], [2]
[a]; 813 [3]; People v. Wood, 95 NY2d 509, 512-513; Matter of Alfeo v. Alfeo, 306 AD2d 471).
The Court issued a temporary order of protection (Fam. Ct. Act §828), and the case was
adjourned until March 7, 2012 with the expectation that the related criminal case would be
resolved by that date. Both parties and their attorneys appeared before the Court on March 7,
2012 and the Court was advised that the criminal action against Sheryl G. in the Queens County
Criminal Court had concluded. The Court was presented with documentation from the Criminal
Court which established that on January 23, 2012 Mrs. G. had been convicted of the offense of
Disorderly Conduct (Penal Law §240.20), and that on the same date the Criminal Court
(Yavinsky, J.) had sentenced the respondent to a conditional discharge for a period of one year
(Penal Law §65.05). The conditional discharge mandated that respondent attend and complete a
12 session anger management program, and the Criminal Court also issued a one year order of
protection against the respondent directing that she commit no further family offenses against her
husband (Criminal Procedure Law §530.12 [5]).
A fact-finding hearing upon the family offense petition was conducted before this Court
on March 7, 2012. At that hearing the respondent stipulated that she had been convicted of the
offense of Disorderly Conduct by the Criminal Court for the identical incident alleged in this
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family offense petition, and based upon that conviction this Court entered a fact-finding order
determining that respondent had committed a family offense (see, Matter of Juan C. v. Cortines,
89 NY2d 659, 667; Parker v. Blauvelt Volunteer Fire Department, 93 NY2d 343, 349; People v.
Evans, 94 NY2d 499, 502; Matter of Gowrie v. Squires, 71 AD3d 1023, 1024; Matter of Debra
MM. v. Ralph MM., 61 AD3d 1278, 1279). The Court proceeded to an immediate dispositional
hearing (Fam. Ct. Act §833), and pursuant to Family Court Act §841 (b), judgment was
suspended against respondent for a period of six months. In connection with this order of
disposition, the Court directed that respondent comply with the terms of the Criminal Court's
sentence as well as the order of protection issued by that Court (22 NYCRR §205.74 [a]).
In support of the motion to set aside this Court's fact-finding order, respondent contends
that the six month suspended judgment period has expired without further incident or judicial
intervention and that she is entitled to have the order vacated and the family offense petition
dismissed.
While Family Court Act §841 allows for a suspended judgment as a possible order of
disposition, the statute is silent as to the ultimate disposition of the family offense petition and
any intermediate orders, such as the fact-finding order, upon the uneventful expiration of the
suspended judgment period.
Suspended judgments are provided for in various Family Court proceedings such as
Person in Need of Supervision Proceedings (Fam. Ct. Act §§754 [1] [b]; 755; e.g., Matter of
Michael H., 239 AD2d 618; Matter of Naquan J., 284 AD2d 1, 4), child protective proceedings
(Fam. Ct. Act §1052 [a] [i]; 1053; e.g., Matter of Amelia W., 77 AD3d 841, 842; Matter of M.N.,
16 Misc 3d 499), and a proceeding seeking the termination of parental rights (Fam. Ct. Act §633;
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e.g., Matter of Michael B., 80 NY2d 299, 311; Matter of Jonathan J., 47 AD3d 992, 993, lv
denied 10 NY3d 706).[FN1]With the exception of termination of parental rights proceedings for
which specific provisions were enacted in 2005 (L 2005, ch 3 [amending Fam. Ct. Act §633];
see, Matter of Jonathan B., 193 Misc 2d 52, rev'd 5 AD3d 477, lv dismissed 2 NY3d 791), the
articles governing child protective proceedings, family offense proceedings, and PINS
proceedings do not contain provisions governing the disposition of a case in which a suspended
judgment has been granted and the suspension period lapses without further judicial action.
As a general rule, it has been held that "[w]here an order of suspended judgment is silent
as to the legal consequences of the expiration of the period of suspension, the judgment itself
does not expire by operation of law. Rather, the Family Court retains jurisdiction to consider a
motion by any party to enforce, modify, or vacate it at any time, upon a proper factual showing of
compliance or noncompliance with its terms and conditions" (Jonathan B. at 479 [emphasis
added]; see also, Matter of Darren V., 61 AD3d 986, 987, lv denied 12 NY3d 715; Amelia W.,
at 842 [adopting similar rule for suspended judgment in child protective proceeding]).
Thus, while a party's "compliance with the terms of a suspended judgment may, but does
not necessarily, lead to dismissal" of the underlying petition (Darren V. at 987), the party subject
to the suspended judgment is not automatically entitled to have the judgment vacated and the
petition dismissed. Instead, the court retains jurisdiction over the proceeding for the purpose of
enforcing, modifying, or vacating the suspended judgment "upon a proper showing of
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compliance or noncompliance with its terms and conditions" (Jonathan B. at 479), as the interests of justice may require. This rule is entirely consistent with the provisions of Family
Court Act §844 which, although not specifically applicable to suspended judgments, provides
that the Family Court may "for good cause shown . . . reconsider and modify any order issued
under paragraphs (b), (c) and (d) of section eight hundred forty-one" (see, Sobie, Practice
Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Court Act §844 at 336
[West 2009]).
Here the respondent's motion is based solely upon the fact that the six month suspension
period ordered in this Court's order which suspended judgment has lapsed without any further
judicial action. That fact, standing alone, neither extinguishes the Court's fact-finding order, nor
does it entitle the respondent to dismissal of the underlying family offense petition. In fact, the
Family Court order which suspended judgment specifically conditions the suspension of
judgment upon her compliance with all of the terms of the Criminal Court order of protection and
its sentence of a conditional discharge. As of the date of respondent's motion, she clearly has not
fully complied with the conditional discharge and the order of protection inasmuch as the order
of protection and the conditional sentence both do not expire until January 12, 2013.
The conditional discharge to which respondent was sentenced to by the Criminal Court is
a revocable disposition (Criminal Procedure Law §§60.01 [2]; 410.70 [5]), and in the event of a
violation of the conditional discharge, respondent may be subject to a different authorized
sentence upon the violation for which she has been convicted (Criminal Procedure Law §60.01
[3]; People v. Bennett, 269 AD2d 401, lv denied 94 NY2d 916; People v. Charland, 30 AD3d
838, 839; People v. Hope, 32 AD3d 1115, 1116).
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Therefore, at the present time because the respondent remains subject to the sentence
imposed by the Criminal Court as well as the order of protection, there is no basis for this Court
to vacate its own fact-finding order or the suspended judgment, both of which are based entirely
upon the Criminal Court's judgment (Criminal Procedure Law §1.20 [15]) rendered by the
Criminal Court. At such time as respondent has fully complied with the conditional discharge
and she has been granted relief from the judgment of the Criminal Court, she is free to seek relief
from the suspended judgment and fact-finding order issued by this Court.
It is therefore,
ORDERED, that respondent's motion for an order vacating the orders of fact-finding
and disposition entered in this family offense proceeding is denied for the reasons stated.
This constitutes the decision and order of the Court.
E N T E R:
_________________________________
JOHN M. HUNT
Judge of the Family Court
Dated: Jamaica, New York
October 3, 2012
Footnotes
Footnote 1:Suspended sentences were once permissible in criminal actions. However, the present
Penal Law "does not allow the court to suspend sentence, since that type of sentence has been
replaced by the sentences of conditional and unconditional discharge" (People v. Darling, 50
AD2d 1038, 1039; see also, People v. Szymkiewicz, 31 AD3d 754; People v. Roche, 31 Misc 3d
142 (A), 2011 NY Slip Op 50833 [U]).
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