People v. Carrington, 2006 NY Slip Op 51499(U) (N.Y. Crim. Ct. 5/3/2006)

• Decision Date: 03 May 2006
• Docket Number: 2006KN004007.
• Citation: 2006 NY Slip Op 51499(U)
• Parties: THE PEOPLE OF THE STATE OF NEW YORK v. ERIC CARRINGTON, Defendant.
• Court: New York Criminal Court

Page 1

2006 NY Slip Op 51499(U)

THE PEOPLE OF THE STATE OF NEW YORK v. ERIC CARRINGTON, Defendant.

2006KN004007.

Criminal Court of the City of New York.

Kings County.

Decided May 3, 2006.

MICHAEL J. GERSTEIN, J.

The defendant, Eric Carrington, was arraigned in this court on January 19, 2006, on charges of assault in the third degree (PL § 120.00(1)), attempted assault in the third degree (PL § 110/120.00(1)), menacing in the third degree (PL § 120.15), and harassment in the second degree (PL § 240.26(1)). The Complaint alleges that on January 18, 2006, at 263 Sutter Avenue in Brooklyn, New York, Defendant grabbed the arms of his girlfriend, Christine St. Louis ("St. Louis"), and "did squeeze informant's arms tightly." At arraignment, the Assistant District Attorney represented that St. Louis did not receive any medical attention as a result of this alleged incident.

263 Sutter Avenue is Defendant's residence, where he lived with St. Louis at the time of his arraignment. Defendant alleged that he had resided at that address for nine years, and further alleged that St. Louis had resided there with him for only a few months.

At arraignment, this Court, over Defendant's objection, signed a temporary order of protection ("TOP") pursuant to CPL § 530.12 that, in relevant part, ordered Defendant to stay away from St. Louis and her home, effectively excluding the defendant from his home for the duration of the TOP, but permitted Defendant to move for a hearing pursuant to People v. Forman, 145 Misc 2d 115, 546 NYS2d 755 (Crim. Ct. NY Co. 1989). The TOP further permitted the defendant to enter his home at a specified date and time, accompanied by officers of the New York Police Department, in order to obtain documentation regarding his ownership of the premises and to remove personal belongings.

Temporary Orders of Protection

A temporary order of protection is issued as a condition of recognizance or bail. CPL § 530.12(1); CPL § 530.13(1). Although CPL § 510.20 provides that the defendant must be accorded an opportunity to be heard regarding the details of recognizance or bail, an evidentiary hearing is not required, and would be excessively onerous in most cases. See Forman, supra .; People v. Faieta, 109 Misc 2d 841, 440 NYS2d 1007 (Nassau Dist. Ct. 1981). "[T]he State has an interest in the issuance of the TOP at the earliest possible time, since the danger of intimidation and injury to the complainant, if it exists, is an immediate one. In a very real sense the issuance... is an emergency decision." Forman, 145 Misc 2d at 127-8. The defendant is given an opportunity to be heard at arraignment, which in most cases satisfies the requirements of CPL § 510.20.

The standard to be applied in determining whether to issue a temporary order of protection as a condition of bail or recognizance is whether there is a "danger of intimidation or injury" to the complaining witness. People ex rel. Klein v. Kruger, 25 NY2d 497, 255 NE2d 552, 307 NYS2d 207 (1969); People ex rel. Feldman v. Warden, New York Detention Facility, 48 AD2d 789, 369 NYS2d 420 (1st Dept. 1975), rev. on other grounds 37 NY2d 760, 337 NE2d 140, 374 NYS2d 631 (1975); Forman, 145 Misc 2d at 124. The factors the court must consider in determining whether to issue a TOP that excludes Defendant from his residence include, but are not limited to, "whether the temporary order of protection is likely to achieve its purpose in the absence of such a condition, conduct subject to prior orders of protection, prior incidents of abuse, past or present injury, threats, drug or alcohol abuse, and access to weapons." CPL § 530.12(1)(a); see also People v. Schwartz, 12/17/99 N.Y.L.J. 33 (Crim. Ct. Kings Co.).

This is not a balancing test, with the defendant's interest in retaining possession of and residence in his home on one side, and the danger of intimidation or injury to the complaining witness on the other side. The aim of the TOP, protecting the complaining witness, is of paramount importance. See L. 1994, ch. 222, § 1; Reynolds v. Fraser, 5 Misc 3d 758, 761, 781 NYS2d 885, 888 (Sup. Ct. NY Co. 2004); Forman, 145 Misc 2d at 127 ("Domestic violence has come to be recognized as a social scourge of the first order."). The issue is whether that aim can be achieved without the substantial deprivation that results from excluding the defendant from his home, given the circumstances of the case.

The Nature of a Forman Hearing

It is within the Court's discretion to order an evidentiary hearing to be held shortly after arraignment when warranted by the circumstances of the case, in order for the Court to more accurately determine whether it would be appropriate to modify the TOP signed at arraignment so as to permit the defendant to remain in his residence. People v. Koertge, 182 Misc 2d 183, 191, 701 NYS2d 588, 595 (Nassau Dist. Ct. 1998); Faieta, 109 Misc 2d at 848.

The defendant has a property interest in his right to occupy and possess his residence sufficient to invoke due process protection. People v. Garland, 69 NY2d 144, 505 NE2d 239, 512 NYS2d 796 (1987); Barry v. Barchi, 443 U.S. 55, 64, 99 S.Ct. 2642, 2649, 61 L. E. 2d 365, 374 (1979). Depriving the defendant of his residence for the duration of a pending case constitutes a deprivation of property with constitutional due process implications. Where the defendant's opportunity to oppose so much of the TOP as excludes him from his residence is limited to the argument of counsel at arraignment, and where it appears that the opportunity to present further evidence would allow the defendant to prove grounds sufficient to persuade the Court to exercise its discretion in modifying the TOP, defense counsel's opportunity to argue at arraignment may not qualify as the meaningful opportunity to be heard which is required in order to comport with due process. Burns v. United States, 501 U.S. 129, 137-8, 111 S.Ct. 2182, 2187, 115 L. Ed. 2d 123, 133 (1991) ("This Court has readily construed statutes that authorize deprivations of liberty or property to require that the Government give affected individuals both notice and a meaningful opportunity to be heard" (emphasis in original)); Matthews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L. Ed. 2d 18, 32 (1976) ("The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner"); Boddie v. Connecticut, 401 U.S. 371, 377, 91 S.Ct. 780, 785, 28 L. Ed. 2d 113, 118 (1971) ("due process requires... a meaningful opportunity to be heard"); Dobkin v. Chapman, 21 NY2d 490, 501, 236 NE2d 451, 457, 289 NYS2d 161, 170 (1968) ("Notice and an opportunity to be heard are, of course, high among the traditional elements of fair procedure included in the concept of due process.").

Notwithstanding that a hearing may be required, the nature of the required hearing need rarely be testimonial in order to satisfy due process when the defendant seeks modification of a TOP which excludes him from his residence. The United States Supreme Court has recognized that the meaningful opportunity to be heard required in order to provide to due process "tolerates variances in the form of a hearing appropriate to the nature of the case.'" Fuentes v. Shevin, 407 U.S. 67, 82, 92 S.Ct. 1983, 1995, 32 L. Ed. 2d 556, 571 (1972), citing Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313, 70 S.Ct. 652, 657, 94 L. Ed. 865, 873 (1950). The hearing required by due process "is not fixed in form." Boddie, 401 U.S. at 379.

Forman Hearings are Discretionary and Should be Rarely Ordered Given the latitude permitted in the process which is due, combined with the nature of the interests (including those of both the protected party and the defendant) at stake, the Court should also consider the availability of other forums where a defendant aggrieved by a TOP may seek relief. It is significant that the TOP provides, in pertinent part, that the defendant must stay away from the "home" of the protected party; it does not specify any particular location as constituting the protected party's home, nor does it purport to determine the home or residence of any party. Simply put, the TOP's reference to the complainant's home, among other things, is merely to effectuate the purpose of the TOP — to keep the defendant away from the complainant, and not to make findings as to any person's entitlement to any particular residence. Thus, a defendant aggrieved by a TOP is free to commence a proceeding in Housing Court to evict the protected party from any location which the defendant alleges to be his residence. In some cases, the Family Court may also have jurisdiction to decide competing claims to a particular residence. Supreme Court would have jurisdiction over an ejectment action, and other causes of action which could affect the rights of the defendant and the protected party to reside at a particular location.

Of all possible forums, the Criminal Court is the one least able to expeditiously resolve any party's...