People v. Hadley

• Decision Date: 07 April 1997
• Citation: 658 N.Y.S.2d 814,172 Misc.2d 697
• Parties: The PEOPLE of the State of New York, Plaintiff, v. Kevin HADLEY, Defendant.
• Court: New York City Court

Page 814

658 N.Y.S.2d 814

172 Misc.2d 697

The PEOPLE of the State of New York, Plaintiff, v. Kevin HADLEY, Defendant.

Criminal Court of the City of New York, Richmond County.

April 7, 1997.

Joseph Lamattina, Staten Island, for defendant.

William L. Murphy, District Attorney of Richmond County (Joseph Bavaro, of counsel), for plaintiff.

WILLIAM GARNETT, Judge.

Can an order of protection issued in another State serve as the predicate for a charge of criminal contempt under the Penal Law of the State of New York?

By a misdemeanor information, the defendant is charged with Harassment in the First Degree, Penal Law Section 240.25, and Criminal Contempt in the Second Degree, a Class "A" misdemeanor pursuant to Penal Law Section 215.50(3).

The information alleges that, in violation of an order of protection issued in the State of New Jersey, the defendant followed his daughter, Jessica Marshall-Hadley, from a train station, onto a train, into the rear car of the train, off the train and onto a street in Staten Island, New York.

The New Jersey decree, which is the predicate for the criminal contempt charge and which was submitted by the prosecution to corroborate the misdemeanor complaint, is a "final" restraining order issued, pursuant to the New Jersey Prevention of Domestic Violence Act by a Judge of the Superior Court, Chancery Division, Family Part, Monmouth County, New Jersey in favor of the complainant's mother. This order was granted in an action entitled: "In the Matter of Dorothy Hadley, Plaintiff and Kevin Hadley, Defendant."

The order was granted on February 16, 1995 and was bottomed on a judicial finding that the defendant, Kevin Hadley, was, and is, a danger to the plaintiff's life, health and well-being. The decree admonished the defendant that any violation of the substantive provisions of the order would result in a criminal prosecution and a possible jail sentence. Explicitly, the order recited that a violation "may constitute criminal contempt pursuant to N.J.S.A. 2C: 29-9(b)." The court's order was filed with the County Clerk's office in Monmouth County. The decree contains no time limit.

The applicable provisions of the New Jersey order preclude the defendant, Kevin Hadley, from "having ... personal contact" with Jessica Marshall-Hadley, the complainant in this case. More specifically and pointedly, the order prohibits the defendant "from stalking, following [emphasis added] or threatening to harm, to stalk, to follow [emphasis added]" Jessica Marshall-Hadley.

The New Jersey order does not indicate, on its face, whether the defendant was afforded due process before the decree issued. Although the order is labeled "final", certain matters of contention between the parties were "reserved for future determination," e.g. "emergent monetary relief", "victim monetary compensation." Moreover, the plaintiff, the complainant's mother, was granted alimony "pendente lite" indicating that all issues germane to the marriage dissolution had not yet been judicially determined at the time that this order was granted. In addition, the criminal complaint does not contain an allegation that the defendant was accorded due process in the New Jersey proceeding.

The final section of the New Jersey order is entitled "Return of Service." Although the sentences which memorialize that the defendant was given a copy of the order by personal service were checked, this section was not completed by the inclusion of the signature, title and department or office of the person who made service and the date of service.

The defendant has, in essence, moved pursuant to CPL Sections 170.30(1)(a) and 170.35(1)(b) to dismiss the second count of the information which charges him with Criminal Contempt in the Second Degree. The defense contends that the New Jersey restraining order, allegedly violated by the defendant's behavior in New York, may only be criminally enforced in a court of the State of New Jersey for New Jersey has exclusive jurisdiction.

In response, the People aver that the New Jersey restraining order is enforceable in New York as the New Jersey order must be "enforced as if it were the order of the enforcing State." 18 U.S.C. Section 2265[a]. The prosecution argues that the cited federal statute compels New York to give full faith and credit to the New Jersey decree.

The information alleges facts which, if true, constitute the crime of Harassment in the First Degree. Thus, the conduct imputed to the defendant in the information would constitute an egregious and plain violation of the New Jersey restraining order. If the order had emanated from a New York State court, there would be no question that the charge of Criminal Contempt in the Second Degree had been established prima facie.

May the State of New York enforce the New Jersey order by

charging the defendant with Criminal Contempt in

the Second Degree?

Article IV, Section 1 of the Constitution of the United States of America provides that "Full Faith and Credit" shall be given to the "public Acts, Records and judicial Proceedings" of the States. However, this constitutional provision is not self-executing. The Congress is enjoined to "prescribe the manner" in which the acts of the States are to be proved and given effect. (U.S. Const., art. I, § 1.)

Congress employed the power bestowed upon it by this constitutional provision by enacting 18 U.S.C. Section 2265. This Section, enacted as part of the Violence Against Women Act of 1994, requires the states to give full faith and credit to "any protection order issued" by the Court of any state.

Congress was concerned that if an abused woman crossed State lines she would lose the protection of an order issued in her former home State. Therefore, 18 U.S.C. Section 2265 was modeled on existing law which had addressed child custody awards in parental kidnapping cases by invoking the full faith and credit section of the Constitution. Senate Report No. 197, 102d Cong., 1st Sess., October 29, 1991. Congresswoman Susan Molinari predicted that the enactment of this section with other provisions "could be sending an important message to women and their potential attackers." 139 Cong.Rec. H8734-01, H8738, November 3, 1993. Thus, it is abundantly clear that Congress intended state protective orders to have interstate consequences to protect women who cross state lines.

Yet, Congress did not indicate how the enforcing State was to give full faith and credit. May the sister state enforce the issuing state's edict by dint of its Penal Law?

In pertinent part, New York Penal Law Section 215.50(3) proscribes the "intentional disobedience or resistance to the lawful process or other mandate of a court ..." The plain language of the statute is inclusive. The statute does not circumscribe the ambit of this prohibition to New York courts only. On its face, the penal statute can be fairly interpreted to sanction the intentional disobedience of the order of any court. Therefore, the applicable New York Penal Law provision does not foreclose the enforcement of an out-of-state court order.

Further, a court of this State would have jurisdiction of a charge of Criminal Contempt in the Second Degree bottomed on an allegation of a violation of an out-of-state order pursuant to C.P.L. Article 20.

Specifically, C.P.L. Section 20.20(1)(a) confers jurisdiction on the criminal courts of this State where conduct, occurring in this State, would constitute an element of a charged crime. In this case, the defendant's alleged stalking of the complainant would be an element of Criminal Contempt in the Second Degree. In order to establish an "intentional disobedience" of the New Jersey State order, the People would have to establish, beyond a reasonable doubt, that the defendant committed acts in New York State which constituted a violation of the out-of-state protection order. Thus, the alleged conduct of the defendant in New York and in Richmond County establishes jurisdiction to try the defendant in New York State. See also, C.P.L. Section 20.40[1][a].

In order to accord an out-of-state protection order full faith and credit in the enforcing state, the party seeking to enforce the order must establish that the defendant was afforded due process before the order issued. A defendant must be given reasonable notice and opportunity to be heard sufficient to protect that person's right to due process. 18 U.S.C. Section 2265[b][2]. Thus, if the out-of-state protection order is to be given full faith and credit, the party seeking enforcement must demonstrate that the person against whom the order was issued was given a reasonable opportunity to be heard in conformity with the law of the issuing state and consistent with due process.

Moreover, in order to establish prima facie a violation of an order of protection, the prosecution must show that the defendant has been told "either orally or in writing, the contents of the order and the conduct it prohibits". People v. McCowan, 85 N.Y.2d 985, 987, 629 N.Y.S.2d 163, 652 N.E.2d 909 [1995]. Therefore, the information must contain facts which indicate that the defendant was apprised by proper service of the contents of the order.

Can the order which was issued principally in favor of the

defendant's estranged wife be enforced to protect

the children mentioned as protected

persons in the order?

Is the provision which makes the primary recipient's rights enforceable in another state also applicable so as to give the children of the spouse the benefit of the full faith and credit mandate of the federal statute?

The answers to these questions lie in an examination of the statutory language of the applicable New Jersey statute and a federal statute.

The governing New Jersey statute is N.J.S.A. § 2C:25-29. This section sets out the parameters of a restraining order issued by the Family Part of the Chancery Division of the Superior Court. A restraining order may preclude a defendant "from...