People v. Mack

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: TITONE
• Citation: People v. Mack, 426 N.Y.S.2d 792, 75 A.D.2d 586 (N.Y. App. Div. 1980)
• Decision Date: 07 April 1980
• Parties: The PEOPLE, etc., Respondent, v. Willie MACK, Appellant.

Page 792

426 N.Y.S.2d 792

75 A.D.2d 586

The PEOPLE, etc., Respondent, v. Willie MACK, Appellant.

Supreme Court, Appellate Division, Second Department.

April 7, 1980.

Frank M. Blancato, Peekskill, for appellant.

Carl A. Vergari, Dist. Atty., White Plains (Carl J. Rubino, Jr., and Gerald D. Reilly, White Plains, of counsel), for respondent.

Before MOLLEN, P. J., and HOPKINS, TITONE and MANGANO, JJ.

MEMORANDUM BY THE COURT.

Appeal by defendant from a judgment of the Supreme Court, Westchester County, rendered November 3, 1978, convicting him of assault in the second degree, upon his plea of guilty, and imposing sentence.

Judgment affirmed.

At about midnight on December 23, 1977, the defendant came home to find his wife in bed with another man and assaulted her by punching her in the eye. The next morning, December 24, defendant sexually assaulted his wife by forcing a foreign object into her vagina. At about 7:00 A.M. that morning, the police were called and responded to the parties' apartment in White Plains, New York. Mrs. Mack told the responding officers that she did not wish to press any charges against her husband at that time. Sometime later that morning, the defendant and his wife drove to Rye New York. While there, defendant sexually assaulted her again by forcing foreign objects into the intimate parts of her body. The latter assault resulted in a referral of the matter by the Rye Police Department to the Sex Crimes Unit of the Westchester County Sheriff's Department.

As a result of these attacks, the defendant's wife sustained serious physical injury to her eye and injuries to other parts of her body. A criminal action was commenced on December 27, 1977 when an accusatory instrument was filed against defendant in a local criminal court (CPL 1.20, subd. 17). Thereafter, on March 23, 1978, a seven-count indictment was handed up charging the defendant with assault in the first degree, assault in the second degree (three counts) and criminal possession of a weapon in the fourth degree (three counts).

On June 12, 1978 the defendant made an omnibus motion in which he sought, inter alia, dismissal of the indictment for failure to comply with the provisions of former subdivision 2 of section 812 of the Family Court Act. In the alternative, he requested a pretrial hearing to determine whether there had been compliance with the provisions of that statute. On July 24, 1978, the branch of defendant's motion relating to section 812 was denied.

On September 15, 1978 defendant withdrew his previously entered plea of not guilty and pleaded guilty to the crime of assault in the second degree in satisfaction of the indictment. On November 3, 1978 he was sentenced as a prior felony offender to a term of imprisonment with a minimum of two years and a maximum of four years.

The statute in issue is section 812 of the Family Court Act as it read at the time defendant's motion was made (L.1977, ch. 449). ^* In substance, subdivision 1 of that statute gives the Family Court and the criminal courts concurrent jurisdiction over any proceeding involving enumerated acts of an assaultive nature "between spouses".

Subdivision 2 of that section, at the time in issue, provided:

"The presiding justice of each judicial department shall designate by rules of court the appropriate law enforcement official, who may be a probation officer, warrant officer, sheriff, police officer or any other law enforcement official, to advise any petitioner or complainant bringing a proceeding under this section, before such proceeding is commenced, of the procedures available for the institution of family offense proceedings, including but not limited to the following:

"(a) That there is concurrent jurisdiction with respect to family offenses in both family court and the criminal courts;

"(b) That a choice of forum by a complainant or petitioner bars any subsequent proceeding in an alternative court for the same offense;

"(c) The legal, social and practical consequence of an adjudication by the family court and that an adjudication in family court is for the purpose of attempting to keep the family unit intact. Referrals for counseling, or counseling services, are available through probation for this purpose.

"(d) The legal, social and practical consequence of an adjudication by the criminal courts and that an adjudication in the criminal courts is for the purpose of punitive action against the offender."

Defendant's motion to dismiss was based on his contention that, prior to the commencement of the criminal action, none of the designated law enforcement officials had given the complainant the advice set forth in the statute.

CPL 210.45 (subd. 5, par. (b)) provides that the court may deny a motion to dismiss without conducting a hearing if "(t)he motion is based upon the existence or occurrence of facts, and the moving papers do not contain sworn allegations supporting all the essential facts".

In support of the motion, defendant's attorney averred that based upon a conversation he had had with the complainant, counsel had the "impression" that the admonition had not been given to her. There was no sworn allegation by the complainant that she had not been given the statutory instructions. On the other hand, the District Attorney stated that section 812 of the Family Court Act had been complied with. The court denied the motion stating: "The defendant sets forth no facts indicating failure to comply with (the) statute." The motion was properly denied. A mere "impression" is clearly insufficient to support the claim that there was no compliance with the statute. Moreover, the attorney's affirmation was not made sufficient by the allegation that counsel was told by the arresting officer that he had not advised the complainant of her options and the consequences of each. The statute imposes no such duty on the arresting officer particularly where, as here, he turned the complainant over to the Sex Crimes Unit.

We note that, although the right to make the initial selection of the forum of litigation was personal to the complainant, her choice could adversely affect the ultimate consequences to the offender. Thus, the defendant could have raised by way of defense at trial the omission, if any, to advise the complainant of the available procedures. Nevertheless, he chose not to do so, and instead pleaded guilty. By his guilty plea, the defendant waived all nonjurisdictional defects (see People v. La Ruffa, 40 A.D.2d 1022, 338 N.Y.S.2d 957, affd. 34 N.Y.2d 242, 356 N.Y.S.2d 849, 313 N.E.2d 332, remanded 419 U.S. 959, 95 S.Ct. 219, 42 L.Ed.2d 174, affd. on rearg. 37 N.Y.2d 58, 371 N.Y.S.2d 434, 332 N.E.2d 312, cert. den. 423 U.S. 917, 96 S.Ct. 227, 46 L.Ed.2d 147; People v. Cornell, 50 A.D.2d 608, 375 N.Y.S.2d 386; People v. Bogatin, 48 A.D.2d 674, 367 N.Y.S.2d 824; People v. Schiskey, 39 A.D.2d 608, 330 N.Y.S.2d 943).

MOLLEN, P. J., and HOPKINS and MANGANO, JJ., concur.

TITONE, J., dissents and votes to hold the appeal in abeyance and remit the matter for a hearing in accordance with the following memorandum:

The questions raised on appeal by defendant are (1) whether the failure of a designated "appropriate law enforcement official" to advise defendant's wife, pursuant to former subdivision 2 of section 812 of the Family Court Act (see L.1977, ch. 449), as to her available choices of a forum in which she could seek redress of personal injuries sustained at his hands constitutes a jurisdictional defect, and (2) assuming the answer is in the affirmative, does the record before the court present a question of fact requiring a hearing as to whether defendant's wife was properly informed of her options pursuant to such statute as it read at the time of the alleged assault upon her by defendant. Contrary to the position taken by the majority, I believe that the answers to both questions should be in the affirmative.

Since a guilty plea waives all nonjurisdictional defects (People v. La Ruffa, 40 A.D.2d 1022, 338 N.Y.S.2d 957, affd. 34 N.Y.2d 242, 356 N.Y.S.2d 849, 313 N.E.2d 332, remanded 419 U.S. 959, 95 S.Ct. 219, 42 L.Ed.2d 174, affd. on rearg. 37 N.Y.2d 58, 371 N.Y.S.2d 434, 332 N.E.2d 312, cert. den. 423 U.S. 917, 96 S.Ct. 227, 46 L.Ed.2d 147), and defendant pleaded guilty to assault in the second degree, it must be determined at the outset whether the failure of a responsible official or officials to inform a victimized spouse of her right to elect the forum in which all litigation should be conducted vitiates subsequent proceedings in either court on jurisdictional grounds. Generally, factors that should be considered in ascertaining whether a procedural infirmity is so gross that it constitutes a jurisdictional defect, are (1) the purpose of the procedural requirement allegedly breached, and (2) administrative means available to insure compliance with the procedural requirement.

With respect to the procedural requirement, it is significant to note that chapter 449 of the Laws of 1977, enacted with the support of many women's organizations and groups, was designed to afford more effective relief to the "battered spouse". Proponents of the measure believed that the Family Court, which had exclusive jurisdiction of intra-family offenses up to that time, did not possess sufficient sanctions for abusive conduct. Under the prior law, commencement of criminal proceedings based on an intra-family offense was jurisdictionally defective and the matter was transferred to the Family Court pursuant to section 813 of the Family Court Act (People v. Johnson, 20 N.Y.2d 220, 282...