MATTER OF HAMM-JONES v. Jones

• Decision Date: 30 December 1999
• Citation: 267 A.D.2d 904,702 N.Y.S.2d 130
• Parties: In the Matter of SUZANNE HAMM-JONES, Appellant,<BR>v.<BR>EARL JONES, Respondent.
• Court: New York Supreme Court — Appellate Division

267 A.D.2d 904

702 N.Y.S.2d 130

In the Matter of SUZANNE HAMM-JONES, Appellant,

v.EARL JONES, Respondent.

Spain, J.

Decided December 30, 1999.

Mercure, J. P., Crew III, Carpinello and Mugglin, JJ., concur.

Spain, J.

Petitioner and respondent have two children, a daughter born in 1994 and a son born in 1992. In August 1998, petitioner filed this family offense petition against respondent in Family Court seeking an order of protection pursuant to Family Court Act article 8. The petition alleges acts of sexual abuse by respondent perpetrated toward their daughter during a period of visitation. Their daughter was, at that time, four years of age. Following a fact-finding hearing at which, inter alia, hospital records and the child's out-of-court statements to petitioner and hospital personnel were received in evidence, without objection, Family Court dismissed the petition, concluding that the evidence was insufficient to support the allegations.^[*] This appeal ensued.

We affirm, but for reasons other than those relied upon by Family Court. Initially, the issue of Family Court's jurisdiction over these serious allegations under Family Court Act article 8 has not been raised by either of the parties or the Law Guardian in this proceeding. We nonetheless conclude that the petition herein should have been dismissed for lack of subject matter jurisdiction since the acts alleged to have been committed by respondent are not the proper subject of a family offense proceeding. Significantly, Family Court Act article 8 governing family offense proceedings only grants jurisdiction to Family Court in proceedings "concerning acts which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault" (Family Ct Act § 812 [1]). Under established rules of statutory construction, criminal acts not specifically enumerated in Family Court Act § 812 are deemed excluded (see, McKinney's Cons Laws of NY, Book 1, Statutes § 240; People v Lewis, 29 NY2d 923, 924).

The allegations in the petition charge respondent with various forms of sexual misconduct, the most serious of which constitutes the class B felony of aggravated sexual abuse in the first degree (see, Penal Law § 130.70 [1] [c]). Clearly, Family Court Act § 812 (1), by its terms, does not confer jurisdiction upon Family Court to entertain a family offense petition containing allegations in the nature of those alleged to have been committed by respondent (see, People v Lewis, supra, at 924; People ex rel. Doty v Krueger, 58 Misc 2d 428, 429-430, affd 32 AD2d 845, appeal dismissed 26 NY2d 881; cf., People v Nuernberger, 25 NY2d 179, 182; People v Webb, 52 AD2d 8; People v Abrams, 73 Misc 2d 534; People v Monsanto, 70 Misc 2d 996). In our view, the fact that the conduct alleged could be generally minimized and characterized as constituting the lesser crimes of assault which are enumerated in Family Court Act §...