People v. Faieta

• Decision Date: 08 July 1981
• Parties: PEOPLE of the State of New York, Plaintiff, v. William FAIETA, Defendant.
• Court: New York District Court

Page 1007

440 N.Y.S.2d 1007

109 Misc.2d 841

PEOPLE of the State of New York, Plaintiff, v. William FAIETA, Defendant.

District Court, Nassau County,

First District.

July 8, 1981.

Denis Dillon, Dist. Atty., Nassau County, Mineola, by Christine L. Adamowicz, New Hyde Park, for plaintiff.

Joseph Canzoneri, Franklin Square, for defendant.

DECISION ON HEARING

ELI MELLAN, Judge.

This matter originated by virtue of an Order to Show Cause, which directed that a hearing be held as to whether a Temporary Order of Protection heretofore entered herein should be vacated or modified. The hearing was held without opposition of the District Attorney on June 24, 1981.

An Accusatory Instrument was filed in this Court on June 4, 1981, wherein a District Court Information subscribed and sworn to on June 3, 1981, alleged that the defendant violated Section 120.00 subdivision 1 of the Penal Law, Assault Third Degree, by having chased the complainant, defendant's wife, in the back yard of their home, throwing her to the ground and causing a cut on her knee and a "broken right foot". By way of background it appeared that a prior complaint by the same complainant resulted in a District Court Information subscribed and sworn to on October 20, 1980, alleging Assault Third Degree, which culminated in an adjournment in contemplation of dismissal under Section 170.55 of the Criminal Procedure Law, granted on January 28, 1981 for a period of six months.

When the defendant appeared before the Court in Arraignment on the current charges, the defendant was, of course, personally present but without an attorney at the time; the Court, apparently on the basis of the background and on application of the Assistant District Attorney, granted a Temporary Order of Protection on June 11, 1981, requiring the defendant to stay away from the home, school, business or place of employment of Concetta Faieta, the complainant herein, in addition to other directions from the Court. The net result of this Temporary Order of Protection was that the defendant, who is indicated to be a victim of multiple sclerosis, had to remove himself from his own home which he had owned for many years and which, in fact, he had shared with his prior wife who died from multiple sclerosis. It appears that the said home has been equipped with handrails both in the hallways and in the bathroom facilities, to accommodate a victim of multiple sclerosis. Yet, on the basis of this order, the defendant had to remove himself from the premises.

The Order to Show Cause secured by defendant's attorney on June 18, 1981, seeks to have the Temporary Order of Protection vacated or modified on the grounds that the provisions of Criminal Procedure Law Section 530.12, pursuant to which the Temporary Order of Protection was issued, is unconstitutional, that the defendant was not represented at the time of the issuance of the order, that the defendant was not afforded an opportunity to be heard prior to the issuance of the order, that there is a lack of due process in the issuance of such an order inasmuch as the statute does not provide for a hearing prior to the issuance thereof.

As stated above, the Order to Show Cause itself provided that a hearing should be held on the aforementioned issues. Such a hearing was directed on the ex parte application of the defendant, without the Assistant District Attorney being afforded an opportunity to either agree to or oppose such a hearing. Nevertheless, on the scheduled date of the hearing the Assistant District Attorney indicated a willingness to proceed and participate in such a hearing without any opposition thereto.

Thus, the hearing was conducted on June 24, 1981, wherein the complainant, Concetta Faieta, testified that she works part-time as a piano teacher, has a limited income, that she began to know and reside with the defendant some time during May of 1980, and that they were married during July, 1980. The defendant prior thereto was the sole owner of the premises, having previously resided therein with his former wife, who died approximately two years earlier. After the marriage of the complainant and the defendant on July 9, 1980, there were repeated disputes and arguments between the two parties. The complainant's version establishes that there are repeated spells of arguing and fighting. She, herself, admitted and related in her own version of the facts that on the date of the most recent occurrence, she had grabbed his cane, on which the defendant is dependent for balance and ambulation, and that she threw it around in various places, banging it to such an extent that she broke the cane. The defendant stated that the cane had a plastic handle which the complainant broke, requiring him to go to the drug store immediately after the occurrence to buy himself another cane. He also stated that the complainant was so violent that she appeared to be threatening to utilize it to crash certain mirrors within the premises of their home and a glass table; that he attempted to prevent her from doing so by grabbing the broken cane and taking it away from her. He denies having struck her or causing her any of the injuries which she sustained, claiming not only that she inflicted the injuries on herself but, also, that even after the complaint was filed against him he was the one who took her to the doctor, nursed her and ministered to her inflicted injuries; that he prepared the meals for the household. In fact, for the period of time from June 3rd, when the complainant claims the injuries were inflicted upon her, to June 11th, the date that he appeared for arraignment when the Temporary Order of Protection was issued, both parties continued to share one bedroom, slept together and even on one occasion had sex. This testimony, incidentally, remained uncontradicted and undisputed during the hearing.

While the defendant does not appear to have financial difficulty in complying with the Temporary Order of Protection, it is obvious that the requirement that he stay out of his home imposes upon the defendant, to say the very least, a tremendous amount of inconvenience by virtue of the fact that the specified special facilities constructed in his home, pursuant to his physical incapacity, are not available to him in the form of the handrails, etc.

As an interesting aside which was revealed during the course of the testimony, the defendant stated that approximately a month earlier he had transferred title to his house in such a manner that both the complainant and the defendant are now co-owners of the residence. Furthermore, his total life's savings at the time were approximately $40,000, consisting of Time Certificates, of which he took 50 percent, or approximately $20,000, and transferred it to the complainant, wife of the defendant. When the Court, out of curiosity, inquired as to why he would do such a thing when there had been such turbulence and difficulties in their short marriage, his answer was that he did it for the purpose of hoping to improve the circumstances of the marriage and to encourage a better relationship between them, to buy peace so to speak, stating that there have been such "periods of ecstacy" during the time of their marriage that the ecstacies exceeded the miseries or agonies.

The defendant also related that...