New York Family Law Blog
In 2001 and Bronx County Criminal Court issued a three-year order of protection in favor of a woman and her child and against her ex-husband. In 2002, the Administration for Children’s Services (ACS) filed a neglect proceeding against the ex-husband. ACS alleged that the ex-husband had not been supporting his child. During the pendency of these neglect proceedings the Bronx County Family Court issued a temporary order of protection, ordering the ex-husband not to have any contact whatsoever with his child or his estranged wife until the neglect proceedings are disposed of by the Family Court.
While the Family Court was hearing the neglect proceedings, ACS filed two petitions for contempt against the ex-husband for having violated the Family Court’s temporary order of protection on May 15, 2003 and November 7, 2003 when he called his child at the apartment of his ex-wife.
According to a New York Criminal Lawyer, on the scheduled date of hearing for the violation petition, the ex-wife failed to appear and so the Family Court found the ex-husband to have willfully violated the temporary order of protection. Later that day, the ex-husband came to court and the Family Court vacated its finding on the violation petition.
The Court scheduled the second violation petition for hearing. A Queens Family Lawyer said the second violation petition alleged that the ex-husband violated the temporary order of protection when he called his son at his ex-wife’s apartment on October 13, 14 and 23, 2003. The Family Court scheduled the inquest for February 2, 2004. Again, the ex-husband failed to appear and the Family Court reinstated its finding of willful violation of the temporary order of protection. The Family Court also resolved and denied three family offense petitions that the ex-husband filed against his wife. So the Family Court issued an order of protection.
The Family Court proceeded to hear testimony of the ex-wife on the violation petitions. The wife testified that the phone in her apartment rang in the morning of October 11, 2003 and her young son picked it up. The ex-wife, her mother and father all picked up extensions of the phone and they all heard her ex-husband tell their son that he was coming to get him. He called again at 7:30 p.m. on the same night and he told his child and addressed his ex-wife, her mother and her father who had all picked up extensions that he was going to get his son and that he was going to burn down the house and kill them. He called 25 more times after that until 9:00 p.m. The ex-wife called the police and reported the harassment. The next day, the police called and told her that they had arrested her ex-husband.
A Nassau County Family Lawyer said his arrest was ordered by the Bronx Criminal Court where he was apparently charged with criminal contempt for a violation of the three-year order of protection issued by the Bronx County Criminal Court itself. This criminal proceeding was for the violation of the Criminal Court’s own Order of Protection: he was not charged with criminal contempt for violating the Family Court Order of Protection. He was also charged with two counts of aggravated harassment in the second degree for repeatedly calling his ex-wife on October 11, 2003.
Thereafter, on March 29, 2003 the Family Court found that the ex-husband had indeed willfully violated the Family Court’s Order of Protection and was found in contempt of the Family Court. He was imprisoned for 6 months, serving two consecutive sentences of three months each.
After his release from prison, he went back to the Family Court and moved that the Family Court vacate his default in the neglect proceedings. And then he moved in the Criminal Court for the dismissal of the charges on the ground that the criminal contempt and the aggravated harassment prosecutions violated his right under the Fifth Amendment of the Constitution against double jeopardy.
The Family Court denied the ex-husband’s motion to vacate order declaring him in default in the neglect proceedings. Later, the People moved to dismiss the criminal contempt charge and so the only remaining charges are the two charges for aggravated harassment. It is this issue that is before the Supreme Court on pure question of law.
The Court found that the civil contempt proceeding before the Family Court, although punitive in nature and can then be counted as a first prosecution will not bar the ex-husband’s prosecution for aggravated harassment. There can be no double jeopardy here because the elements of civil contempt and aggravated harassment are not the same.
In civil contempt the elements are: that there was an order of protection issued, the ex-husband knew of the order of protection, and yet he still violated it. In aggravated harassment, the elements are: that the ex-husband called his child and ex-wife without any legitimate purpose of communicating with them but instead, with those phone calls, threatened, annoyed, alarmed and harassed them.
Even if the husband were prosecuted for both contempt and aggravated harassment for the same phone calls he made on October 11, 2003, there can be no double jeopardy because these are two distinct offenses and their elements are different. What the Constitution bars is the subsequent prosecution of the same crime for the same act. The Court used the Blockburger test to see if there was any double jeopardy. The Blockburger test analyzes the elements of the two crimes, and if they are different then no double jeopardy lies. The Court declared that the prosecution for aggravated harassment is not unconstitutional as it does not suffer from the infirmity of double jeopardy.
The Court also considered the application of the husband for release on the basis of the Clayton doctrine. Under the Clayton doctrine, the accused may ask the Court for the dismissal of the criminal action against him in furtherance of justice and fairness without considering the legal or factual merits of the case or the guilt or innocence of the accused.
The Court denied the ex-husband’s Clayton application. The Court ruled that dismissing the criminal case for aggravated harassment would serve to erode the trust of the population in the courts and in the legal system as the laws and the courts will be perceived as unable to protect its citizens against the evils of domestic violence which is prevalent today. The fairness and justice which will be served by his release from the criminal action must not only benefit the ex-husband who is accused, but the courts must also consider the fairness and justice of the dismissal to the complaining witness (his ex-wife) and the community in general.
Does your ex-husband or ex-boyfriend call you to threaten, annoy and alarm you? You do not have to live in fear. You can obtain an order of protection from a family court or from a criminal court. But you cannot do it alone. The complexities of the legal system demand that you obtain the service of well-trained attorneys who can help you navigate through the courts. At Stephen Bilkis and Associates, our legal counsel can listen to you and they can help build your case and argue it so that you can get the protection against further domestic violence. Do not wait to be a victim, call Stephen Bilkis and Associates at any of their offices in the New York area.