New York Family Law Blog
The case involves a repetitive issue concerning domestic violence. A New York Family Lawyer said the complaining witness/victim of domestic violence wishes to recant her testimony. The recantations are the product of many imperatives, not all of which serve the interests of the victim or justice.
Defendant moved for an order, pursuant to CPL § 410.20(1), modifying the condition of probation as to participation in continued therapy and treatment for domestic violence and for an order vacating and/or modifying the order of protection of the Court dated 3 February 2010. Defense counsel moved post-conviction and post-sentencing for the aforesaid reliefs on three separate dockets after the defendant in a negotiated plea was convicted and sentenced to forty-five (45) days in jail, three (3) years of probation and a “stay away” order of protection in favor of the complainant. More specifically, the defendant in this case pled guilty to one count of Penal law § 120.45(2), stalking in the fourth degree, another count of Penal law § 215.50(3), criminal contempt in the second degree while the count of Penal law § 240.30(1), aggravated harassment in the second degree was dismissed in satisfaction.
The defendant’s motion was denied in its entirety.
First is the issue for the modification of a condition of probation. A New York Custody Lawyer said that here, the defendant was directed to attend a batterer intervention treatment program. It must be ntoed that the defense counsel offered no support for this relief, no authority and no change of circumstance other than the complaining witness in her affidavit making a conclusory statement that she request the defendant not be required to continue the counseling because she believes he does not need it. Under the circumstances presented, the Court found it proper not to modify the condition of probation requiring therapy and treatment for domestic violence. Such therapy was an appropriate part of the sentence and/or condition of probation. Thus, this branch of the motion was denied.
Second is the issue on vacating and/or modifying the order of protection. Defendant’s counsel, in support of the motion, presented the affidavit of the complainant.
According to the complainant, a Nassau County Family Lawyer said in her affidavit: on or about 8 February 2010, an order of protection was issued in her favor and against the defendant; at that time, she had not been contacted by the District Attorney’s office and if she had been contacted, she would have told them that she did not require such order of protection; she had previously informed the District Attorney’s Office that she did not want to pursue the case; she have since attempted to have said order of protection removed; she went to the District Attorney’s office at 99 Main Street, 3rd floor, Hempstead, NY, and was told that the case had to be brought before the Court; she did not want an order of protection in her favor and against the defendant; she was the complaining witness against the defendant because he was her prior boyfriend and he would not stop contacting her and telling her how much he loved her; the defendant did not physically threaten her; at that time, she just wanted the defendant to stop contacting her; at this time, the defendant did not present as a threat to her; she and the defendant want to be able to converse, and communicate with each other; having an order of protection prevents their ability to associate with each other; for that reason, she requests that the order of protection be vacated; she also requests that he need not be required to continue with the domestic violence counseling that he has been ordered to attend to by his probation officer; she does not believe that he is a physical threat to her and she also does not believe that he requires such counseling; she would be happy to appear before the Court regarding the issues she mentioned.
A Nassau County Custody Lawyer said the defendant’s attorney cited no cases in support of such a vacatur or modification of the order of protection. As held in the case of People v. Hull which was decided by the 3rd Department in 2008 quoting People v. Nieves which was decided in 2004, recognizing that the issuance of an order of protection incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims and witnesses both prior to and after conviction, and that it is not part of the sentence imposed, the court permitted modification of the order of protection with regard to defendant’s biological children, who were not the subject of his conviction for downloading pornographic videos of children. The Hull court reasoned that since the order of protection was imposed sua sponte, not requested by the People, and was not part of the negotiated plea, it was in the interest of justice to modify the order of protection as to defendant’s 15 and 16 year old biological children so that the order expired on their 18th birthday.
In opposition, the People presented a different picture of the relationship between the defendant and the complainant.
According to the complainant, in her supporting deposition dated 10 April 2009: she and the defendant broke up over a year ago, around March 2008; after they had broken up, the defendant had been calling her, texting her, and sending her letters despite her repeated demands and requests that he stop all contact with her; on 13 October 2008, she filed a police report because the defendant wouldn’t stop contacting her and she was becoming really frightened; the defendant had been physically abusive to her during their on-and-off six year relationship; the defendant used to hit her with a bag of items he had bought her, causing a black eye and requiring two stitches, he broke her car window, he burnt her hand with a lit cigarette, he choked her about three times, putting his hands around her neck and squeezing it causing her to fear for her life, he slammed her head into his car window, and a lot more abuse over the years; when she tried to break up with the defendant, he threatened her with a knife threatening to kill her; when she tried to break up with him again, the defendant threatened to kill himself while holding a razor to his wrist, but was tackled by a friend, the razor was taken away, and she drove him to the hospital; the defendant’s repeated unwanted letters, text messages, and phone calls made her realize he would never stop and she didn’t know what the defendant would do next; on 14 October 2008, she received a call from a detective and was told that her case was being investigated and that the defendant was also going to receive a call; later on, she received a text message from the defendant saying thanks and goodbye; she called the detective and told her about the text message; the detective called her later that night and told her that she spoke to the defendant and told him not to contact her any further in any way and that he was frightening her; after 14 October 2008, she continued to receive numerous letters from the defendant, professing his love and wanting to get back together; she was really afraid and began looking over her shoulder wherever she went, always afraid that the defendant would be there and he would hurt or kill her, as he threatened to do this in the past; on 19 November 2008, she went to Nassau County Family Court and received the Order of Protection against the defendant; she got a few more letters after that, but was told that the order hadn’t been served on the defendant yet; on 26 November 2008, the defendant was served the order and he stopped contacting her for about a month; the letters, text messages, and phone calls started again, sporadically though; she hoped the defendant was going to stop again; she went to Family Court on 11 December 2008 and the defendant was present; the defendant was again served with the Order of Protection, but this time it was in the court; on 15 January 2009, she received a letter from the defendant; she also received another letter on a date she can’t remember; the text messages increased; on Valentine’s Day, the defendant sent her candy and letters, but she tore up the card and threw out the candy; on 2 March 2009, she received another letter from the defendant professing his love; the defendant will not stop and she was afraid for her personal safety and her life; and she did not give the defendant permission to contact her in any way or place her in fear for her life and she wants the defendant arrested.
According to the People, it would be an error to overlook the amount of time the victim has spent trying to get away from a relentless pursuer only to allow them to date again; that the complainant was in fear of the defendant when she originally met with the People and requested a stay away order of protection, and this stay away order of protection was part of the negotiated plea; that there are no new facts which would lead the people to believe that this relationship would be any less toxic or that the defendant would not resume his criminal ways should the victim decide to break up with the defendant; and that there is nothing which the People, the Court, and the defense were not aware of at the time of plea and sentence.
Here, considering the People’s opposition and its factual distinctions with the landmark case of People v. Hull, the Court found it proper not to exercise its discretion in the interest of justice to modify and/or vacate the order of protection. Clearly, the complainant’s attempt to join in the defendant’s application to vacate and/or modify the order of protection through her affidavit appears to fit within what is called the “honeymoon phase” of the “cycle of violence”.
As held in the celebrated case of People v. Byrd which was decided by the First Department in 2008, domestic violence has three phases that comprise the cycle of violence.
First is the tension building phase, second is the violence phase, and third is the honeymoon phase. During the first two phases the victim is reduced to a state of fear and anxiety due to impending or actual violence. In the honeymoon phase, the abuser acts with contrition, begs for forgiveness and makes declarations of love. During the honeymoon phase, the victim is seduced into believing that the abuse will cease and that the family will remain intact. This cycle repeats itself over many years. During the honeymoon phase, victims of domestic abuse often recant their reports of abuse and refuse to testify. During this phase, the batterer has, often in violation of an order of protection, repeatedly contacted the victim, professing apologies and declarations of love to trick the victim into believing that the violence will end. During this reconciliation the batterer is able to convince the victim that recantation would solve their problems.
Accordingly, the defendant’s motion was denied.
For assistance with spousal abuse, contact us at Stephen Bilkis & Associates. Our Nassau County Domestic Violence Attorneys, Nassau County Criminal Attorneys, and the like, are available to assist you with your concerns. We have the best, well trained and highly skilled legal counsels in the country. Legal consultations with us are free of charge.