The defendant was charged by an information sworn to by the complainant with a violation of Section 242, subd. 3 of the Penal Law, in other words, with a second degree assault. Upon arraignment, he was represented by counsel, namely the office of the Public Defender of the County of Nassau. His lawyer asked that the matter be transferred to the Family Court of this County to be there treated as a family offense.
In support of his application, counsel states that the complainant, and the defendant, has lived together at 36 Carney Street, Glen Cove, New York, for a period of time, that they have their shared the same apartment and that in general, they have held themselves out to be man and wife. Defendant’s counsel further informed the Court that the complainant and the defendant have never been married to each other by either a ceremonial service or a civil one, nor has a marriage license ever been issued to them.
None the less, it is asserted that the circumstances under which the complainant and defendant live with each other are such as to constitute them a household within the meaning of Section 812 of the Family Court Act. Since the institution of the Family Court Act in 1962, a number of cases have been heard in this County construing the ambit of Section 812 in situations approximately similar to the one outlined above.
The Judges of the Family Court, it was uniformly held that there need not be a valid subsisting marriage relationship at the time of the occurrence in order to permit a transfer to the Family Court as a family offense; but that instead, the entire circumstances were to be looked into in each case and would be decided upon the facts found to exist. This appears to be in keeping with the intent of the framers of the Family Court Act. The committee comment to Sec. 812 shows that they expected the question of whether or not a particular situation constituted a family offense to be determined by ‘the common law method of case by case adjudication to define ‘family’, ‘household’, and ‘disorderly conduct’ for purposes of the civil proceeding provided in this article.’
Further, we would be blind to human experience if we did not realize that the proximity to each other of the complainant and the defendant living as they were in the same household may well have given rise to whatever situation caused the alleged assault in this instance. That being the case, the absence of a marriage contract between these parties does not render less appropriate the conciliation procedures envisioned by the Family Court Act.
It would thus appear that this matter is a family offense as the same is designated by the Family Court Act and one that arose between members of the same household. A further problem is presented however, by reason of the fact that this defendant is charged not with an assault in the third degree, but a second degree assault. A divergence of opinion has appeared in the reported decisions in this State as to [48 Misc.2d 538] whether or not the phrase ‘assault’ used in Sections 812 and 813 of the Family Court Act refer to felonious assaults.
The Court then turned its attention to the interpretation to be given to the word assault as used in Article 8 of the Family Court Act and the unanimous opinion held, ‘We may not presume that the inclusion in the statute of all family assaults rather than merely misdemeanor assaults within the exclusive original jurisdiction of the Family Court was casual or not carefully considered. This law was drafted by the Joint Legislative Committee on Court Reorganization, and we must assume that the language employed was carefully selected. Further, as against the determination in the cases above cited that family assaults, as defined in the act, would encompass only misdemeanors, the Judicial Conference has stated: ‘The jurisdiction of the Family Court is not limited to any particular degree of assault.’
In the absence of a clear, and apparent unconstitutionality of Sec. 813, and in view of the defendant’s demand that the matter be transferred to the Family Court, this Court feels constrained to hold as follows: having found that the criminal complaint charges an assault, whether it be felonious, or not, between members of the same household, then upon request, timely made, by the defendant, the matter must be transferred by the committing magistrate to the Family Court.
It is obvious the magistrate and the Family Court Judge will avail themselves, dependent upon the particular situation presented, of the powers given to them respectively by the addition in 1964 of present Sections 814 and 815 of the Family Court Act, allowing them to hold the defendant, or admit him to bail, or parole him.
It is respectively held that the holding of the Appellate Division of the Second Department, in the matter of Ricapito v. The People, 20 A.D.2d 567, 245 N.Y.S.2d 846, is not a bar to the above finding inasmuch as the decision there would appear to be that the question sought to be raised was not a proper one for review at that time. The memorandum by the Appellate Court went on to say (p. 568, 245 N.Y.S.2d p. 848), ‘At this time, we refrain from passing upon any other questions.’
Therefore, the application of the defendant, through his counsel, is granted and this matter is transferred to the Family Court. He is directed to appear there on October 25, 1965, pursuant to order of even date signed herewith.
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