People v. Forman

Decision Date05 September 1989
PartiesPEOPLE of the State of New York v. Milton FORMAN, Defendant.
CourtNew York City Court

Dudley Gaffin, Gaffin & Mayo, P.C., New York City, for defendant Milton Forman.


On June 24, 1988, defendant Milton Forman was excluded from his home by the terms of a Temporary Order of Protection issued pursuant to CPL 530.12(1)(a). He contends that this Temporary Order of Protection was issued without affording him an opportunity to be heard, and that the procedures and lack of standards for the issuance of Temporary Orders of Protection pursuant to CPL 530.12(1), and CPL 530.12(1)(a), violate federal constitutional due process requirements.

CPL 530.12(1) provides that in a criminal action "involving a complaint charging any crime or violation between spouses, parent and child, or between members of the same family or household, as defined in [CPL] section 530.11.... the court may issue a temporary order of protection as a condition of any order of recognizance or bail...." According to CPL 530.12(1), such a temporary order of protection ("TOP") may require the defendant,

"(a) to stay away from the home, school, business or place of employment of the family or household member or of any designated witness;

(b) to permit a parent to visit the child at stated periods;

(c) to abstain from offensive conduct against the child or against the family or household members or against any person to whom custody of the child is awarded;

(d) to refrain from acts of commission or ommission that tend to make the home not a proper place for the family or household member."

The statute, since amended by Chapter 702 Laws of 1988, does not specify a standard or list criteria on the basis of which a Court is to determine whether a Temporary Order of Protection should issue.


Defendant Milton Forman and complainant Barbara Forman are husband and wife. Immediately prior to his arrest, defendant and his wife were staying in separate cooperative apartments, each jointly owned by them, in the same apartment building in Manhattan. The larger of the two apartments was the couple's marital home, while the smaller served as the wife's office. As Defendant was arrested on June 24, 1988 and charged with Assault in the Third Degree (PL 120.00), and with Harrasment (P.L. 240.25), on the complaint of his wife. According to the June 24 complaint of Police Officer Graves, corroborated by Barbara Forman on the same day, defendant, with intent to cause physical injury and to harass and annoy his wife, had punched her in the face and knocked out one of her teeth. The alleged assault and harassment occurred after the wife had returned to sleep in the larger apartment and refused to let the husband in.

                a consequence of severe marital conflict between them, the wife was temporarily sleeping in her office, but had access to the larger apartment during the day.   The defendant husband continued to occupy and sleep in the larger apartment

At his arraignment on June 24, 1988, defendant was represented by counsel, and with the consent of the People was released on his own recognizance. At the arraignment, the People requested, and the court issued, a Temporary Order of Protection, effective until July 17, 1988, unless further extended by the court. No argument was heard, or testimony presented, either in support of or in opposition to the issuance of the TOP. The Temporary Order of Protection, issued on the officially prescribed form used for this purpose in the Criminal Court for the City of New York [Form No. 2 (Family Offense-Temporary Order of Protection) ], directed defendant as follows:

(a) to stay away from the home, school, business or place of employment of Barbara Forman;

(c) to abstain from offensive conduct against Barbara Forman;

(d) to refrain from acts of omission or commission that tend to make the home not a proper place for Barbara Forman.

The effect of this Temporary Order of Protection was to exclude the defendant from both of the couple's apartments, since one was arguably the complainant's home and the other her office.

On June 26, 1988, two days after defendant's arrest, Barbara Forman informed the police that defendant had threatened her with violence over the telephone and that she had a Temporary Order of Protection. The police sought to arrest the defendant for violation of the TOP, but apparently, following negotiations with defendant's counsel, they agreed to desist while defendant litigated the legality of such an arrest and of the underlying order of protection.

On July 13, 1988, defendant and his counsel appeared in Part AP 3 of this court and orally requested that the TOP be modified to allow the defendant access to one of the two apartments. The application was denied with leave to renew in writing. A new TOP was issued, without a hearing, on the same terms as previously, and made effective until August 1, 1988, unless extended by the Court. On July 15, 1988, by order to show cause returnable on July 26, 1988, defendant moved to vacate the TOP as based on insufficient evidence and issued in violation of due process of law. Additionally, and alternatively, defendant moved for a hearing pursuant to CPL 510.20 to vacate the TOP as a condition of his recognizance. While this motion was pending, on July 18, 1988, defendant sought and was denied review of the TOP in the Supreme Court, New York County, on the ground that CPL 530.30 did not authorize such review.

On July 20, 1988, the defendant's written motion was disposed of by stipulation. The People and the defendant agreed in writing that a hearing would be held to determine defendant's claim "that an Order of Protection should not have been issued in this case and that the police do not have probable cause to arrest me [the defendant] for violation of that Order of Protection." On July 26, 1988 the stipulation was approved by the presiding judge and the hearing was scheduled for August 1, 1988.

The hearing was held before this court. Consistent with the stipulation, testimony was limited to the question whether there was sufficient evidence to justify the issuance of a TOP as of June 24, 1988, and whether there was a current basis for its continuation. Although called for by the At the conclusion of the hearing, on August 4, 1988, this court orally ruled that the evidence supported the issuance of the initial TOP on June 24, 1988, and issued a new Temporary Order of Protection excluding defendant from only one of the two apartments owned by him jointly with his wife. Decision was reserved on all issues of law. The parties agreed that defendant's constitutional challenge to CPL 530.12 would also be treated as a motion to dismiss the added charge of Criminal Contempt in the Second Degree, P.L. 215.50(3).

                stipulation, no evidence was taken at the hearing to determine whether there was probable cause to arrest the defendant for violation of the TOP.   Instead, with the defendant's consent, the People filed a "Superseding Amendment" to the information charging the defendant with Criminal Contempt in the Second Degree, P.L. 215.50(3).   The new count alleged that on June 26, in violation of the June 24 Temporary Order of Protection, the [145 Misc.2d 119] defendant telephoned his wife and told her that he had a gun and was coming to see her.   The provision of the Temporary Order of Protection allegedly violated by the defendant was that which required him "to abstain from offensive conduct against Barbara Forman."

By an Order, without opinion, dated April 28, 1989, this Court withdrew its August 4, 1988 oral decision that there was on June 24, 1988 a sufficient basis for the issuance of a TOP; adhered to its decision to issue a new Temporary Order of Protection; denied defendant's motion to vacate the June 24, 1988 Temporary Order of Protection on constitutional grounds; and dismissed the charge of Criminal Contempt in the Second Degree, P.L. 215.50(3). This Amended Order and Decision supplements the Order issued on April 28, 1989.


The Stipulation pursuant to which the hearing before this court was held was based on a fundamental misconception. The TOP of June 24, 1988 was issued as a condition of defendant's release on his own recognizance. CPL 530.12, CPL 510.20, CPL 510.30(2)(a). A fundamental principle of the law governing securing orders is that a judge may not review a determination of bail or recognizance made by a judge of coordinate jurisdiction nunc pro tunc, and may only modify such a determination prospectively on the basis of new facts adduced. People ex rel. Manceri v. Doherty, 192 N.Y.S.2d 140, 142 (1959); People v. Gruttola, 72 Misc.2d 295, 339 N.Y.S.2d 178 (Crim.Ct., N.Y.Co., 1972). To the extent the Stipulation between the People and defendant provided for nunc pro tunc review of the June 24, 1988 determination of the arraigning Judge, it was invalid. This court's decision, pursuant to the stipulation, that there was a sufficient factual basis for issuance of the June 24, 1988 TOP, must therefore be withdrawn.

The issue properly presented at the hearing held before this court pursuant to CPL 510.20 was whether, subject to defendant's constitutional challenge, there was a sufficient evidentiary basis for the continuance of the June 24 TOP. On this issue, there was substantial evidence presented at the hearing to support the continuation of a Temporary Order of Protection excluding the defendant from the marital apartment. 1

The complainant Barbara Forman testified credibly that on June 24, 1988 the defendant punched her in the mouth, knocking out one of her front teeth, that the defendant had a history of violent conduct,...

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