BILL NUMBER:  S4762

 TITLE OF BILL :  An act to amend the family court act, in relation to
determinations of willful violations of orders of protection

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of his Family
Court Advisory and Rules Committee.

Section 846-a of the Family Court Act provides that a willful
violation of an order of protection must be proven by "competent
evidence," but the statute is silent regarding the quantum of proof
required. This gap in the law has resulted in disparate standards
being applied in different parts of the State, that is, in "justice by
geography." As the Supreme Court, Appellate Division, Third
Department, recognized, in Matter of Stuart LL v. Amy KK, 123 A.D.3d
218 (3rd Dept., 2014), "(c)ase law has not been consistent regarding
the level of proof when considering an alleged willful violation of a
protective order (see e.g. Matter of Rubackin v. Rubackin, 62 A.D.3d
11, 20-21 (2009)." See also, Matter of Nicola V., 134 A.D.3d 1131 (2nd
Dept., 2015). This measure would clear up the ambiguity by codifying
recent decisions issued by the Supreme Court, Appellate Divisions in
the Second and Third Departments.

Following Matter of Stuart LL v. Amy KK, Matter of Nicola V and Matter
of Rubackin v. Rubackin, supra, this measure requires that if a
              

respondent is brought before Family Court for a willful violation that
is in the nature of a criminal contempt and that results in a definite
sentence including incarceration, the willful violation must be proven
beyond a reasonable doubt. This requirement would apply to sentences
actually imposed, as well as to sentences that are suspended or that
may be served on particular days, rather than continuously. This
measure also would clarify the provision authorizing Family Court to
suspend sentences or direct the days on which sentences must be
served.

Some willful violations of orders of protection under Family Court Act
§ 846-a may be characterized as civil in nature, that is, those that
may be remediated through use of a nonincarcerative sanction or
through an indefinite jail sentence lasting until the contemnor has
purged the contempt. However, many willful violations of orders of
protection prosecuted in Family Court are more accurately
characterized as criminal contempts, aimed at punishing the contemnor
for a past act. In holding that such contempts may thus preclude a
criminal prosecution for the same act as a violation of the
constitutional protection against double jeopardy, the Court of
Appeals, in People v. Wood, 95 N.Y.2d 509 (2000), stated:

We have recognized that despite the "civil" legislative label (see,
Family Court Act 812(2)(b)), section 846-a, which provides for a
penalty of incarceration for violation of Family Court orders, is
punitive in nature (cites omitted). An adjudication for contempt under
Article 8 is properly characterized as punitive because it does not
seek to coerce compliance with any pending court mandate, but imposes
a definite term of imprisonment and punishes the contemnor for
disobeying a prior court order (cites omitted) (95 N.Y.2d 513).

Applying this characterization, the Appellate Division, in Matter of
Rubackin v. Rubackin, supra, looked to long-established decisions of
the United States Supreme Court for its holding that proof beyond a
reasonable doubt is required in criminal contempt cases. Both Gompers
v.  Bucks Stove & Range Co., 221 U.S. 418 (1911) and Michaelson v.
United States ex rel Chicago St.P., M & 0. R. Co., 266 U.S. 42 (1924)
required proof beyond a reasonable doubt where the purpose of the
incarceration was to punish a past violation. Similarly, the New York
Court of Appeals required this quantum of proof in labor cases (County
of Rockland v. Civil Service Employees Association, 62 N.Y.2d 11
(1984)), and the Appellate Division, Second Department, applied the
standard in cases involving violations of judgments, grand jury
subpoenas to produce documents and temporary injunctions. See Muraca
v. Meyerowitz, 49 A.D.3d 697 (2nd Dept., 2008); Matter of Kuriansky v.
Azam, 176 A.D.2d 943 (2nd Dept., 1991 Matter of Jones (McKanic) , 160
A.D.2d 870 (2nd Dept., 1990); Matter of Gold v. Valentine, 35 A.D.2d
958 (2nd Dept., 1970).

No reason exists to distinguish willful violations of orders of
protection in Family Court cases from the contexts in which these
settled principles of law evolved. As the Appellate Division held, in
Matter of Stuart LL v. Amy KK,

Where, as here, a person who has violated an order of protection is
incarcerated as a punitive remedy for a definite period-with no avenue
to shorten the term by acts that extinguish the contempt-then that
aspect of the Family Ct. Act article 8 proceeding "is one involving
criminal contempt (and) (t)he standard of proof that must be met to
establish that the individual willfully violated the court's order is
beyond a reasonable doubt" (Matter of Rubackin v.  Rubackin, 62 A.D.3d
at 21, 875 N.Y.S.2d 90; see Merril Sobie, Practice Commentaries,
McKinney's Cons. Laws of N.Y., Book 29A, Family Ct. Act § 846-a, at
346).

In codifying Stuart L.L., Nicola V. and Rubackin, this measure will
bring uniformity to the prosecution of violations of orders of
protection in Family Court consistent with well-established
constitutional precepts.

This measure, which would have no fiscal impact upon the State, would
take effect immediately.

 2015-16 LEGISLATIVE HISTORY :

OCA 2015-38
Senate 5264 (Sen. Felder) (ref to Children and Families)