Montalvo v. Montalvo

• Decision Date: 19 January 1968
• Citation: 286 N.Y.S.2d 605,55 Misc.2d 699
• Parties: Josephena MONTALVO, Petitioner, v. Santiago MONTALVO, Respondent. -Wide Family Offense Term
• Court: New York City Court

Page 605

286 N.Y.S.2d 605

55 Misc.2d 699

Josephena MONTALVO, Petitioner, v. Santiago MONTALVO, Respondent.

Family Court, City of New York, City-Wide Family Offense Term.

Jan. 19, 1968.

Peter R. DeFilippi, New York City, Isidore Dollinger, Dist. Attys., for petitioner.

Frank A. Ortiz, Brooklyn, for respondent.

NANETTE DEMBITZ, Judge.

Respondent Santiago Montalvo was arrested and arraigned for felonious assault in that he shot his wife, the petitioner, in the left eye and right arm, causing her to suffer gunshot wounds. Petitioner-wife and respondent-husband, who has no criminal record, had been married for 32 years; the shooting occurred during a visit by both at the home of a married son, in the context of the wife's refusal to reunite with the husband after a six-weeks' separation.

The proceeding was transferred from a court of criminal jurisdiction to the Family Court because of the latter's original jurisdiction over all assaults, including felonious assaults, between members of the same family or household. (People v. Johnson, 20 N.Y.2d 220, 282 N.Y.S.2d 481, 229 N.E.2d 180 (1967); New York Family Court Act, sec. 813(a).) ¹ The question now presented is whether the Family Court should transfer this proceeding back to a court of criminal jurisdiction pursuant to section 816(a) of the New York Family Court Act which provides:

'The family court may transfer any proceeding * * * including one transferred to it by a criminal court, to an appropriate criminal court, if it concludes that the processes of the family court are inappropriate.'

The transfer decision has grave import for respondent's liberty of person and for the administration of criminal justice. The maximum sentence within the Family Court's authority is six months for violation of an order of protection (F.C.A. sec. 846), while the crimes with which respondent could be charged in a criminal court are punishable by long sentences. ² And if the Family Court retains jurisdiction, respondent is relieved of the possibility of criminal penalties based on the acts constituting the assault (F.C.A. sec. 845).

Either the petitioner, the People through the District Attorney, or the respondent-defendant can challenge for an abuse of discretion this Court's determination on transfer. ³ The Family Court must state its reasons for a decision that its retention of the proceeding is 'inappropriate' (infra, p. 613, as to this requirement); and its method of deciding this question raises due process issues (2nfra, p. 612). However, when Family Court jurisdiction is 'inappropriate' is not specifically defined in the Act or elsewhere, nor is the procedure for making the determination on transfer prescribed, nor have these matters yet been fully explored. This opinion will therefore first consider the factors bearing on inappropriateness, then the procedural problems, and then the application of the relevant standards to the instant case.

I. Factors Determinative of 'Inappropriateness' of Family Court Jurisdiction.

A. Possibility of Helping the Family

The Family Court's 'family offense' jurisdiction, according to the findings in the Act, was established because the real purpose of wives and others who brought assault and disorderly conduct charges against family members generally 'was not to secure a criminal conviction and punishment, but practical help' (F.C.A., sec. 811). The Family Court is 'to render such help,' primarily through efforts at conciliation; orders for financial support; orders of protection regarding a family or household member's exclusion from the home, visitation, custody of children, or conduct towards other family members; or medical, psychiatric, or case-work treatment (F.C.A. secs. 821, 817, 842, 843; Family Court Rule 8.3). Clearly, the major criterion of the appropriateness of the Family Court's retention of a proceeding, is whether these processes are likely to be helpful to the family from which the charge extrudes as the symptom of turmoil. ⁴

Request by Petitioner for Transfer to Criminal Court

The desire of the wife or other petitioning relative as to whether the matter should be handled civilly in the Family Court or criminally, must be treated as significant. Not only is satisfaction of the relative's felt-need emphasized in the Act's findings, but in converting a criminal to a civil cause, the Act authorizes the family member, as a private petitioner (as distinguished from the district attorney or other state agent), to pray 'for an order of protection or the use of the court's conciliation procedure or, in the alternative * * * that the proceeding be transferred to an appropriate criminal court' (secs. 821, 822). ⁵ And obviously a wife's prayer for transfer would weigh against the prospect for her conciliation with her respondent-husband.

Nevertheless, petitioner's prayer or desire as to transfer to the criminal court, whether Pro or Con, can only be treated as one factor in the appropriateness of Family Court jurisdiction. A failure to make the request may be due to the victim's fear of further attack by the respondent (which is sometimes evidenced by an application to withdraw entirely the Family Court petition), or other motives unrelated to the desirability of transfer. On the other hand, the prayer for transfer may be based on transient vindictiveness; or despite a petitioner-wife's request for transfer, the Family Court's processes might be helpful to the family in the sense that the husband's presence in the community under an order of protection and his continuance in his employment without a criminal record might be important to his children.

In any event, to rest a determination of such tremendous potential consequence to respondent's liberty on a petitioner's personal good or ill will, would raise a substantial question of due process and equal protection. A victim's personal choice as to whether to make a complaint is, it is true, a substantial factor in the enforcement of the criminal law generally. Nevertheless, once the force of the State is invoked, the choice of what form of State power is exercised and of whether criminal processes apply, must depend on a rational and objective basis. Petitioner's individual desire can only be weighed as one factor in the transfer decision, else it would rest on an inherently arbitrary and capricious--and therefore unconstitutional--foundation. ⁶

B. Possibility of Danger and Societal Interest in Criminal Prosecution.

A proceeding involving 'truly criminal conduct' must be transferred from the Family to a criminal court; such conduct should not 'be treated as a 'family offense' rather than a crime and go unpunished' (Johnson, 20 N.Y.2d 220, at p. 223, 282 N.Y.S.2d 481, at p. 484, 229 N.E.2d 180, at p. 182). Johnson thus indicates that the Family Court must consider whether respondent has 'the 'evil mind' which characterizes felonious intent' (People v. Murch, 263 N.Y. 285, 290, 189 N.E. 220, 221 (1934)) and whether he presents a danger either to his family or to the community unamenable to family court processes. While the questions of whether the family can be helped by the Family Court and whether respondent is dangerous frequently dovetail, the lack of danger may be presented as an independent consideration (for example, in the frequent case of a petitioner and a respondent whose relationship in one household, with incidents of mutual assaultiveness, is terminating).

Where respondent's violence appears to have been stimulated by the family or household situation and either controllable or no longer threatening, the civil processes of the Family Court may be appropriate to spare him from engulfment in criminal procedures and a criminal record with its highly detrimental effect on his employment and other opportunities. ⁷ The effects on the offender and on the public safety are customarily considered in determining whether criminal or civil processes are the more appropriate in dealing with a violation of law. ⁸ Like concerns by this Court in the transfer of family offense cases are consistent also with the practice of prosecutors of refraining from prosecution in 'many cases of assault * * * within families'. ⁹ The Family Court's 'family offense' jurisdiction institutionalizes this practice through a constructive middle-way, short of either criminally prosecuting or ignoring the violation of law.

While it is true that the primary purpose of family offense jurisdiction is to help the family rather than the individual, ¹⁰ a grave question of fairness and due process would again be presented if transfer to a criminal court was determined on the sole basis of this concern--with the result that the respondent's fate might depend in large part on the uncooperativeness, ill will, or maladjustment of other individuals (see note 6, above). In fairness to the respondent and to the public interest, his dangerousness as an individual must be weighed in determining whether Family or criminal court jurisdiction is appropriate. ¹¹

An additional factor for this Court's consideration, suggested by Johnson's reference to punishment (see above), is the gravity of the assault as such. This Court must be mindful of the value of criminal prosecution as a deterrent to violence in the community, and of the retributive function of the criminal law in cases of wilful serious injuries.

II. Procedure for Determining Whether Family Court's Retention of Jurisdiction is Inappropriate

The bulk of family offense cases pose no problem with respect to retention of jurisdiction. Rarely do petitions pray for transfer, or do judges on their own motion transfer proceedings; generally the situation bears out the assumption of the draftsmen that non-criminal processes are more appropriate in family conflicts. ¹² Here, however, the jurisdictional issue is sharply presented in that the District Attorney, with the petitioner-wife's support, urges transfer to a criminal court.

The Family...