Barry Kamins/photo by Rick Kopstein. The New 'Crawford' Hearing: What Will It Look Like?
In his Criminal Law and Procedure column, Barry Kamins discusses how the practice of issuing temporary orders of protection without any judicial examination regarding the deprivation of rights has changed following the decision in 'Crawford v. Ally'.
August 02, 2021 at 12:15 PM
11 minute read
For over 40 years, it has been commonplace for a court to issue a temporary order of protection (TOP) at an arraignment to protect a family offense complainant from abuse by persons closely associated as members of the same family or household. CPL 530.12. Such temporary orders of protection have been granted merely upon the request of the prosecutor and based upon the charges in the accusatory instrument. When a prosecutor requests a temporary order of protection that excludes a defendant from the home, the statute is silent on what, if any, procedure should be followed.
For the first time, an appellate court has held that, when a defendant presents a court with information showing that there may be an "immediate and significant deprivation of a substantial personal or property interest" from the issuance of a temporary order of protection, the court must conduct a prompt evidentiary hearing to ascertain the facts necessary before deciding whether to issue a temporary order of protection. Matter of Crawford v. Ally, 2021 N.Y. Slip Op 04082 (1st Dept., June 24, 2021).
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