BILL NUMBER:S5264

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 her 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 differ-
ent 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, -A.D.3d-, 995 N.Y.S.2d 317, 2014 NY Slip
Op. 07222 (3rd Dept., 2014), "(c)ase law has not been consistent regard-
ing 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)."  This measure would clear up the ambiguity by codify-
ing recent decisions issued by the Supreme Court, Appellate Divisions in
the Second and Third Departments.

Following Matter of Stuart LL v Amy KK, 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 partic-
ular 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 pros-
ecuted 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 reason-
able 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 docu-
ments 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, 575
N.Y.S.2d 679 (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, 318
N.Y.S.2d 360 (rd 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 crim-
inal contempt (and) (t)he standard of proof that must be met to estab-
lish 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 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.

Legislative History:

None. New proposal.