Relates to determinations of willful violations of orders of protection

Section 846-a of the Family Court Act provides that a willful violation of an order of protection must be proven by "competent evidence," but the statute is silent regarding the quantum of proof required. This gap in the law has resulted in disparate standards being applied in differ- ent parts of the State, that is, in "justice by geography." As the Supreme Court, Appellate Division, Third Department, recognized, in Matter of Stuart LL v. Amy KK, -A.D.3d-, 995 N.Y.S.2d 317, 2014 NY Slip Op. 07222 (3rd Dept., 2014), "(c)ase law has not been consistent regard- ing the level of proof when considering an alleged willful violation of a protective order (see e.g. Matter of Rubackin v. Rubackin, 62 A.D 3d 11, 20-21 (2009)." This measure would clear up the ambiguity by codify- ing recent decisions issued by the Supreme Court, Appellate Divisions in the Second and Third Departments.

Following Matter of Stuart LL v Amy KK, and Matter of Rubackin v. Rubackin, supra, this measure requires that if a respondent is brought before Family Court for a willful violation that is in the nature of a criminal contempt and that results in a definite sentence including incarceration, the willful violation must be proven beyond a reasonable doubt. This requirement would apply to sentences actually imposed, as well as to sentences that are suspended or that may be served on partic- ular days, rather than continuously. This measure also would clarify the provision authorizing Family Court to suspend sentences or direct the days on which sentences must be served.

Some willful violations of orders of protection under Family Court Act 846-a may be characterized as civil in nature, that is, those that may be remediated through use of a nonincarcerative sanction or through an indefinite jail sentence lasting until the contemnor has purged the contempt. However, many willful violations of orders of protection pros- ecuted in Family Court are more accurately characterized as criminal contempts, aimed at punishing the contemnor for a past act. In holding that such contempts may thus preclude a criminal prosecution for the same act as a violation of the constitutional protection against double jeopardy, the Court of Appeals, in People v. Wood, 95 N.Y.2d 509 (2000), stated:

We have recognized that despite the "civil" legislative label (see, Family Court Act 812(2)(b)), section 846-a, which provides for a penalty of incarceration for violation of Family Court orders, is punitive in nature (cites omitted) An adjudication for contempt under Article 8 is

properly characterized as punitive because it does not seek to coerce compliance with any pending court mandate, but imposes a definite term of imprisonment and punishes the contemnor for disobeying a prior court order (cites omitted) (95 N.Y.2d 513).

Applying this characterization, the Appellate Division, in Matter of Rubackin v. Rubackin, supra, looked to long-established decisions of the United States Supreme Court for its holding that proof beyond a reason- able doubt is required in criminal contempt cases. Both Gompers v. Bucks Stove & Range Co., 221 U.S. 418 (1911) and Michaelson v. United States ex rel Chicago St.P., M & 0. R. Co , 266 U.S. 42 (1924) required proof beyond a reasonable doubt where the purpose of the incarceration was to punish a past violation. Similarly, the New York Court of Appeals required this quantum of proof in labor cases (County of Rockland v. Civil Service Employees Association, 62 N.Y.2d 11 (1984)), and the Appellate Division, Second Department, applied the standard in cases involving violations of judgments, grand jury subpoenas to produce docu- ments and temporary injunctions. See Muraca v. Meyerowitz, 49 A.D.3d 697 (2nd Dept., 2008); Matter of Kuriansky v Azam, 176 A.D.2d 943, 575 N.Y.S.2d 679 (2nd Dept., 1991 Matter of Jones (McKanic), 160 A.D.2d 870 (2nd Dept., 1990); Matter of Gold v. Valentine, 35 A.D.2d 958, 318 N.Y.S.2d 360 (rd Dept., 1970).

No reason exists to distinguish willful violations of orders of protection in Family Court cases from the contexts in which these settled principles of law evolved. As the Appellate Division held, in Matter of Stuart LL v. Amy KK,

Where, as here, a person who has violated an order of protection is incarcerated as a punitive remedy for a definite period--with no avenue to shorten the term by acts that extinguish the contempt-then that aspect of the Family Ct Act article 8 proceeding "is one involving crim- inal contempt (and) (t)he standard of proof that must be met to estab- lish that the individual willfully violated the court's order is beyond a reasonable doubt" (Matter of Rubackin v. Rubackin, 62 A.D.3d at 21, 875 N.Y.S.2d 90; see Merril Sobie, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 29A, Family Ct Act § 846-a, at 346).

In codifying Stuart L L and Rubackin, this measure will bring uniformity to the prosecution of violations of orders of protection in Family Court consistent with well-established constitutional precepts.

This measure, which would have no fiscal impact upon the State, would take effect immediately.

Legislative History:

None. New proposal.