People v. Arnold
| Decision Date | 08 October 1997 |
| Parties | , 1997 N.Y. Slip Op. 97,568 The PEOPLE of the State of New York, Plaintiff, v. Sebastian ARNOLD, Defendant. The PEOPLE of the State of New York, Plaintiff, v. Patrick TRIUCK, Defendant. |
| Court | New York Supreme Court |
Legal Aid Society (Chris Flohr, of counsel), for Sebastian Arnold, defendant.
Robert J. Boyle, for Patrick Triuck, defendant.
Charles J. Hynes, District Attorney of Kings County (Arlene Markarian and Cynthia Lynch, of counsel), for plaintiff.
The issue in these two unrelated cases is whether, under constitutional and state statutory double jeopardy principles, a criminal prosecution in the Supreme Court is precluded by a prior Family Court disposition imposed for a violation of an order of protection based on the same underlying conduct.
In People v. Arnold, Sebastian Arnold's then wife 1 commenced a Family Court proceeding under Article 8 of the Family Court Act alleging that the defendant argued with her, cursed at her and destroyed her property on April 2, 1995. Arnold's wife also alleged that on prior occasions Arnold had assaulted and threatened her. Arnold's wife requested and received an order of protection from the Family Court effective until May 5, 1995. The protective order directed that Arnold "shall not assault, menace, harass, recklessly endanger or engage in disorderly conduct" toward his wife. On April 17, 1995, Arnold's wife brought a second petition before the Family Court alleging that Arnold violated the temporary order of protection issued on April 4, 1995 by forcing his way into his wife's home and by menacing her with a knife on April 15, 1995 and by calling her on the phone and by continually threatening to kill her on April 16, 1995. On May 23, 1995 after a fact finding hearing, the Family Court, (J. Cordova) found that the petitioner had met her "burden of requisite quantum proof." After a dispositional hearing pursuant to § 841 of the Family Court Act, the Family Court placed Arnold on one year probation and required him to attend a batterer's program. The Family Court, finding the presence of aggravating circumstances under Family Court Act § 827(a)(vii) issued a final three year order of protection. (Family Court Act § 842.)
Arnold, while the Family Court case was pending, had been arrested and charged with various crimes arising out of incidents alleged to have occurred on April 15, 25, and 26, 1995. On May 26, 1995, the defendant was indicted for Burglary in the First and Second Degrees, Assault in the Second Degree, Attempted Assault in the Second Degree, Criminal Possession of a Weapon in the Fourth Degree and Criminal Contempt in the Second Degree, all alleged to have occurred on April 15, 1995; Burglary in the Second Degree, Criminal Contempt in the First and Second Degrees, and Criminal Mischief in the Third Degree, all alleged to have occurred on April 25, 1995; and Burglary in the Second Degree, Criminal Contempt in the Second Degree and Aggravated Harassment in the Second Degree, all alleged to have occurred on April 26, 1995.
In People v. Triuck, defendant Triuck's wife obtained a final order of protection in the Family Court on July 26, 1996 after a finding that Triuck menaced his wife with a knife on June 7, 1996. The final order of protection was for a period of three years and directed that Truick refrain from acts constituting "assault, harassment, menacing, reckless endangerment, disorderly conduct, intimidation or any other offense under the Penal Law" and also provided that he stay away from his wife, her home, and their child. On October 29, 1996, Triuck's wife brought a petition alleging that Triuck violated the July 26, 1996 order of protection on various dates from October 22, through October 28, 1996. 2 After a fact finding hearing, the Family Court (J. Segal) found beyond a reasonable doubt that Truick willfully violated the July 26, 1996 final order of protection as follows:
That on October 22, 1996, the respondent willfully violated the July 26, 1996 final order of protection by repeatedly pushing petitioner, and by forcibly taking custody of the parties' minor child.
That on October 23, 1996, respondent again willfully violated the July 26, 1996 final order of protection by appearing at petitioner's home, by knocking on the door, and otherwise by acting in a disorderly manner.
That on October 26, 1996, respondent again willfully violated the July 26, 1996 final order of protection by appearing at petitioner's home and menacing petitioner with a knife.
On January 30, 1997, the Family Court imposed, as its disposition, consecutive sentences of incarceration for each violation: 90 days each for the violations occurring on October 22, 1996 and October 23, 1996; and 180 days for the October 26, 1996 violation.
On February 24, 1997, the instant indictment was filed against Triuck charging him with the following crimes: Aggravated Criminal Contempt, Criminal Contempt in the First Degree, Endangering the Welfare of a Child, Criminal Mischief in the Fourth Degree and Menacing in the Third Degree, all alleged to have occurred on October 18, 1996; Criminal Contempt in the First Degree (three counts), Endangering the Welfare of a Child and Custodial Interference in the Second Degree, all alleged to have occurred on October 22, 1996; and Menacing in the Third Degree, alleged to have occurred on October 23, 1996.
Defendants Arnold and Triuck in two separate motions contend that their Supreme Court prosecutions are barred by constitutional and state statutory double jeopardy protection. 3 (U.S. Const. 5th, 14th Amends.; N.Y. Const. art. 1, § 6; CPL 40.20 and 40.40). The defendants contend that the Family Court proceeding against each of them was a prosecution for the same conduct or offense as charged in the respective indictment against each of them which is now before this Court. Moreover, each contends that the disposition or sentence imposed by the Family Court constituted criminal punishment.
The Family Court Act and the Criminal Procedure Law both provide the criminal court and family court with concurrent jurisdiction for certain enumerated criminal offenses when committed by one family member against another (Family Court Act §§ 115[e], 812[1]; CPL 100.07, 530.11). That although the Family Court proceeding for certain criminal conduct among family members is deemed to be a civil proceeding (Family Court Act § 812[2][b]; Besharov, Practice Commentaries, McKinney's Cons.Laws of New York, Book 29A, Family Court Act § 812, at 133), the Family Court may, with the consent of the petitioner, transfer a § 812 proceeding to the criminal court in the interest of justice (Family Court Act § 813). Moreover, the Family Court upon its own motion or upon motion of the petitioner transfer a proceeding to the criminal court alleging that the respondent has failed to obey a lawful order of the court. (Family Court Act §§ 846[b][ii][C]; 813[1] ).
The constitutional protection against former jeopardy 4 protects individuals against successive prosecutions for the same offense after an acquittal or conviction. Multiple punishments for the same offense are also proscribed. (North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-2077, 23 L.Ed.2d 656). Double jeopardy protection may be extended to proceedings that are not nominally criminal. (Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917). It is now settled that a sanction in a "civil" or non-criminal proceeding may constitute punishment for double jeopardy purposes. (United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 []; Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 [] ). Not all punishment, however, is a criminal sanction. (See Cordero v. Lalor, 89 N.Y.2d 521, 655 N.Y.S.2d 870, 678 N.E.2d 482 []; United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 [] ).
The Court of Appeals has held that an Article 10 proceeding under the Family Court Act to determine whether a child has been neglected or abused does not bar subsequent criminal prosecution for the same conduct under double jeopardy principles. (People v. Roselle, 84 N.Y.2d 350, 618 N.Y.S.2d 753, 643 N.E.2d 72; Matter of Commissioner of Social Services on Behalf of Michael V. v. James M., 83 N.Y.2d 178, 608 N.Y.S.2d 940, 630 N.E.2d 636; Matter of Commissioner of Social Services on Behalf of Denise R., 219 A.D.2d 715, 631 N.Y.S.2d 431; People v. Daniels, 194 A.D.2d 420, 598 N.Y.S.2d 790; Nelson v. Dufficy, 104 A.D.2d 234, 482 N.Y.S.2d 511). A child protective proceeding can take place in the Family Court while a criminal prosecution goes forward arising out of the same conduct because of the different purposes of these courts, different standards of proof and dispositional alternatives. There is no double jeopardy bar to a criminal prosecution after an Article 10 Family Court proceeding. (People v. Roselle, 84 N.Y.2d at 357, 359, 618 N.Y.S.2d 753, 643 N.E.2d 72, supra.) (People v. Roselle, 84 N.Y.2d at 357, 618 N.Y.S.2d 753, 643 N.E.2d 72, supra, citing Gilberg v. Barbieri, 53 N.Y.2d 285, 293, 441 N.Y.S.2d 49, 423...
To continue reading
Request your trial
-
State v. Bernacki
...v. Dixon, supra, 509 U.S. at 691, 113 S.Ct. 2849. 17. See footnotes 11, 12 and 13 of this dissenting opinion. 18. “In People v. Arnold [174 Misc.2d 585, 592, 664 N.Y.S.2d 1008 (1997) ], Justice Leventhal relied on Chief Justice Rehnquist's concurring in part and dissenting in part plurality......
-
State v. Bernacki, SC18674
...States v. Dixon, supra, 509 U.S. 691. 17. See footnotes 11, 12 and 13 of this dissenting opinion. 18. ''In People v. Arnold [174 Misc. 2d 585, 592, 664 N.Y.S.2d 1068 (1997)], Justice Leventhal relied on Chief Justice Rehnquist's concurring in part and dissenting in part plurality opinion in......
- People v. Triuck
-
People v. Wood
...issue raised on this appeal. The issue is addressed, however, in a well-reasoned opinion by Justice Leventhal in People v Arnold (174 Misc 2d 585), with which we agree, and we accept that court's invitation to establish appellate authority on the Defendant's ex-wife had requested and obtain......