New York Law Review

Tag: Orders of Protection

  • In re Sheena D., 8 N.Y.3d 136 (2006): Duration of Orders of Protection in Child Protective Proceedings

    In re Sheena D., 8 N.Y.3d 136 (2006)

    In child protective proceedings under Article 10 of the Family Court Act, an order of protection against a parent cannot extend indefinitely without periodic court review, even if the underlying dispositional order placing the child in the custody of the other parent has no explicit expiration date.

    Summary

    The New York Court of Appeals addressed whether a Family Court could issue orders of protection against a father, barring contact with his children until they turned 18, when the underlying dispositional order awarding custody to the mother had no expiration date. The Department of Social Services (DSS) filed a petition alleging abuse of a sister-in-law and neglect of his sons. The Family Court found abuse and neglect, awarding custody to the mother and issuing the protective orders. The Court of Appeals modified the Appellate Division’s order, holding that the Family Court lacked the authority to issue such open-ended orders of protection without providing for periodic review, remitting the case to Family Court to establish appropriate expiration dates.

    Facts

    Darwin F. was found by the Family Court to have abused his 16-year-old sister-in-law, Sheena D., by having sexual intercourse with her. Chase F. and Vincent F., Darwin’s sons, were found to be derivatively neglected because Chase was present during the abuse and directly neglected because Darwin kept a loaded shotgun accessible to both children. The Family Court awarded custody of the boys to their mother, Jessica E., and issued orders of protection prohibiting Darwin from contacting his sons until their 18th birthdays.

    Procedural History

    The Family Court made findings of abuse and neglect and issued orders of protection. Darwin appealed to the Appellate Division, arguing the Family Court lacked the authority to issue the orders until his sons turned 18. The Appellate Division affirmed, stating the order of fact-finding and disposition had no expiration date. The New York Court of Appeals granted leave to appeal.

    Issue(s)

    Whether, under Article 10 of the Family Court Act, a Family Court has the authority to issue orders of protection in favor of a father’s children that extend until the children reach the age of 18, when the fact-finding dispositional order incorporating the orders of protection has no expiration date.

    Holding

    No, because Family Court Act § 1056(1) prohibits the issuance of an order of protection that exceeds the duration of any other dispositional order in the case, and because the legislative intent behind the 1989 amendment to the statute was to ensure periodic court review of such orders, which is not possible when the orders extend indefinitely.

    Court’s Reasoning

    The Court of Appeals reasoned that the 1989 amendment to Family Court Act § 1056(1) was intended to place a temporal limitation on orders of protection to ensure periodic court review. The Court noted that prior to the amendment, some Family Courts issued orders of protection lasting until a child’s 18th birthday, citing with disapproval the case of Matter of Erin G. The legislative history clearly indicated a desire to avoid lengthy, unreviewed orders of protection. The Court found the literal reading of the statute by the lower courts had the effect of cutting off the father’s presumptive rights to visitation (Family Ct Act § 1030 [c]) without periodic review as anticipated by the legislation. The court stated, “Since an order of protection may exclude a parent from custody of his or her child, similar to an order of placement, the duration and review procedure should be similar”. The Court found that the Family Court’s actions evinced no effort toward reuniting the children with their father, nor did it recite any mechanism that would allow the father to bring the order of protection back before the court for modification. The Court of Appeals concluded that a dispositional order with no expiration date cannot be accompanied by an order of protection with no time limit, as this would contradict the purpose of the 1989 amendment. The Court emphasized that periodic review is necessary to assess whether circumstances warrant continued protection or reunification of the family, in essence rejecting the Appellate Division’s reliance on Matter of Erin G.

  • People v. Nieves, 2 N.Y.3d 310 (2004): Appealability and Preservation of Challenges to Orders of Protection Issued at Sentencing

    People v. Nieves, 2 N.Y.3d 310 (2004)

    Permanent orders of protection issued at sentencing are appealable as part of the judgment of conviction, but unpreserved challenges to those orders are generally not reviewable by the Court of Appeals unless they fall within the narrow ‘illegal sentence’ exception.

    Summary

    Defendant Nieves was convicted of criminal possession of a weapon. At sentencing, the court issued orders of protection for the two men he shot, ordering him to stay away from them until a date three years after his expected release. Nieves appealed, arguing the orders (1) exceeded the permissible duration under CPL 530.13(4) because jail time credit would result in an earlier release and (2) were improperly issued to the shooting victims because he was acquitted of assault charges. The Court of Appeals held the orders were appealable as part of the judgment but that Nieves’s challenges were unpreserved and did not fall within the illegal sentence exception. Therefore, the Court of Appeals could not review the merits of those challenges.

    Facts

    Nieves shot and injured two men after an altercation outside a nightclub. He was charged with multiple offenses, including assault. At trial, Nieves claimed he acted in self-defense, but he was acquitted of the assault charges and convicted of criminal possession of a weapon in the third degree. During the sentencing proceeding, the trial court issued orders of protection for the two men Nieves shot, directing him to stay away from them until October 12, 2007 – three years from his expected release date. Nieves did not object to the orders at sentencing.

    Procedural History

    At the Appellate Division, Nieves argued the orders of protection were improper in duration and scope. He argued the orders should reflect his jail time credit, which would result in an earlier release date and should not have included the shooting victims as they were not victims, but witnesses, because of the acquittal on the assault charges. The Appellate Division modified the judgment to reflect the jail time credit but rejected Nieves’s other arguments. Both Nieves and the People appealed. The Court of Appeals affirmed the Appellate Division’s order with respect to Nieves’s appeal and dismissed the People’s appeal.

    Issue(s)

    1. Whether orders of protection issued during a sentencing proceeding in a criminal case can be challenged on direct appeal from the judgment of conviction.

    2. Whether the defendant’s arguments on appeal to the Court of Appeals had to be raised before the sentencing court to be preserved for review.

    Holding

    1. Yes, because CPL 530.13(4) authorizes a court to issue permanent orders of protection for victims and witnesses “[u]pon conviction of any offense,” indicating the legislature intended such orders to be part of the final adjudication.

    2. Yes, because the defendant’s claims did not fall within the narrow exception to the preservation requirement for illegal sentences.

    Court’s Reasoning

    The Court reasoned that the appealability of determinations in criminal cases is purely statutory. While CPL 530.13 does not explicitly address the appealability of orders of protection, CPL 450.10 authorizes appeals from a judgment in a criminal case, which brings up for review many preceding orders and rulings.

    Distinguishing from People v. Stevens, where the Court held that post-judgment SORA determinations were not appealable because they were not part of the criminal action, the Court relied on People v. Hernandez, which held that SORA certification at sentencing *was* appealable. The Court stated that, like the SORA certification in Hernandez, CPL 530.13(4) authorizes a court to issue permanent orders of protection for the benefit of victims and witnesses “[u]pon conviction of any offense.” The use of this language indicates the Legislature viewed orders of protection as part of the final adjudication.

    Addressing the preservation issue, the Court acknowledged the “narrow exception to the preservation rule” (People v. Samms, 95 N.Y.2d 52, 56 [2000]) where a court exceeds its powers and imposes a sentence that is illegal. However, the Court found that CPL 530.13(4) does not characterize permanent orders of protection as a component of sentencing, and the statute authorizes temporary orders during the pendency of criminal proceedings, indicating that the Legislature did not intend orders of protection to be punitive.

    The Court noted the primary intent of the statute is to ensure that victims and “witnesses who have the courage and civic responsibility to cooperate with law enforcement officials are afforded the maximum protection possible” (Governor’s Mem approving L 1998, ch 610, 1998 McKinney’s Session Laws of NY, at 1485).

    The Court observed that orders of protection are an “ameliorative measure intended to safeguard the rights of victims and witnesses both prior to and after conviction—it is not a part of the sentence imposed.” Therefore, the Court held defendant’s challenges did not fall within the illegal sentence exception and were unpreserved.

    As a practical matter, the Court noted that seeking adjustment of the order of protection from the issuing court is the most desirable means for resolving an expiration date issue. The Court stated, “Because sentencing courts are in the best position to amend permanent orders of protection, the better practice—and best use of judicial resources—is for a defendant seeking adjustment of such an order to request relief from the issuing court in the first instance, resorting to the appellate courts only if necessary.”