*1PROCEDURAL HISTORYOn June 24, 2015, Simone W. (hereinafter “Petitioner”) filed a family offense petition againsther sister, Deborah W. (hereinafter “Respondent”). In her petition, she alleged that the Respondentengaged in a course of conduct which included repeated threats towards her, her six year olddaughter, and her elderly mother. On October 22, 2015, the Respondent failed to appear, and thematter proceeded to inquest. On that same date, the Honorable Dennis J. Lebwohl (“JudgeLebwohl”) issued a two-year stay away final order of protection on behalf of the Petitioner. By*2motion, the Respondent sought to vacate the default entered against her. On November 17, 2015,Judge Lebwohl denied the Respondent’s motion to vacate, finding that the “Respondent’s mereassertion that the charges against her [were] fabrications [was] insufficient to rise to the level of ameritorious defense.” The Respondent appealed Judge Lebwohl’s denial of her motion to vacate.On February 21, 2017, the Appellate Division, Second Department, reversed Judge Lebwohl’sdenial, and remitted the matter to Queens County Family Court for further proceedings. The SecondDepartment found that the Respondent’s tardiness to the hearing “might have been due, at least inpart, to crowded conditions at the [Queens County Family Court] courthouse” and that she haddemonstrated a potentially meritorious defense to the petition.On March 27, 2017, the matter was restored to the Queens County Family Court calendar.On May 8, 2017, both parties and their counsel were present, and another family court judge issueda temporary order of protection. The matter was adjourned to July 19, 2017. On July 19, 2017, theRespondent failed to appear, but her attorney was present. The Respondent’s attorney informed thatsame family court judge that the Respondent was having health issues, and the Respondent wasdirected to submit medical documentation to establish her inability to appear that day. The matterwas set down for a hearing on October 5, 2017, and was thereafter transferred to this Court.On October 5, 2017, the Respondent again failed to appear. The Respondent provided noprior notice of this absence, nor did she supply any documentation to explain her previous absence.Instead, her attorney made an oral application for an adjournment based on a claim, communicatedto him by text, that the Respondent was again unavailable due to health reasons. Since theexplanation for her absence on October 5th was similar to the as yet undocumented excuse for herabsence on July 19th, the matter proceeded to an immediate inquest. At that inquest, the Petitioner*3established that the Respondent engaged in a course of conduct with intent to harass her and afinding was made that the Respondent had committed the family offense of harassment in the seconddegree.1 See Rosenstock v. Rosenstock, 149 A.D.3d 887, (2d Dep’t 2017) (affirming trial court’scourse of conduct harassment in the second degree finding); see also Acevedo v. Acevedo, 145A.D.3d 773, 774 (2d Dep’t 2016) (upholding family court’s harassment in the second degree finding;respondent repeatedly called petitioner, yelled at her and demanded money even though petitionertold him to stop); Frimer v. Frimer, 143 A.D.3d 895, 896 (2d Dep’t 2016) (affirmed whererespondent consistently threatened to call the police and make false accusations against petitioner,shoved petitioner, and threw his personal belongings). Regarding disposition, the Petitioner’sattorney requested that the Court enter a two year final stay away order of protection. The Courtreserved decision on disposition and adjourned the matter to October 18, 2017. The Court’s decisionfollows:DISCUSSIONNew York State Family Court Act Article 8 establishes a civil proceeding to protect personswithin intimate relationships from violence. See N.Y. F AM. C T. A CT Art. 8 (McKinney’s 2017).Specifically, with regard to families in crisis, family offense proceedings were designed for the“purpose of attempting to stop the violence, end the family disruption and obtain protection.” N.Y.F AM. C T. A CT § 812(2)(b) (McKinney’s 2017). To further that goal, a family court judge may issuean order of protection, see N.Y. F AM. C T. A CT §§ 841(d), 842 (McKinney’s 2017), which must statean expiration date. See N.Y. F AM. C T. A CT § 154-c (McKinney’s 2017). In that regard, familyoffense orders of protection may not exceed a period of two years unless there is a finding of*4aggravating circumstances or a finding that an order of protection was violated. See N.Y. F AM. C T.A CT § 842 (McKinney’s 2017). A family court judge may also extend an order of protection upona showing of good cause or consent of the parties. See id.Family offense dispositions must be based upon material and relevant evidence. See N.Y.F AM. C T. A CT § 834 (McKinney’s 2017) (“[O]nly material and relevant evidence may be admittedin a dispositional hearing.”). At the conclusion of a family offense dispositional hearing, a judgemay, inter alia, enter an order of protection on behalf of a petitioner. See N.Y. F AM. C T. A CT §841(d) (McKinney’s 2017). In New York, due process prohibits a court from penalizing a party whoexercised their right to appeal. See People v. Van Pelt, 76 N.Y.2d 156 (1990); see also People v.Gonzalez, 262 A.D.2d 37, 38 (1st Dep’t 1999). New York has adopted the Federal presumption ofinstitutional vindictiveness, which dictates that a judge may not impose a harsher sentence after asuccessful appeal, whether or not there is a retrial. See People v. Van Pelt, 76 N.Y.2d 156 (1990).The presumption may only be overcome where there is objective proof of conduct or events, whichsurfaced after the imposition of the original disposition, and which require an increased penalty. Seeid.; see also People v. Miller, 103 A.D.2d 808, 809-10 (2d Dep’t 1984) (finding after appeal, greatersentence not based upon vindictiveness, but rather defendant’s own choice to forego plea bargainwhich reduced his sentence); Compare People v. Jenkins, 38 A.D.3d 566, 567-68 (2d Dep’t 2007)(after vacatur upon habeas corpus review, court erred in enhancing sentence where no objectiveinformation sufficient to rebut vindictiveness presumption). Where a disposition after appeal willbe more severe than the initial disposition, the reasons for the increased penalty must be set forth bythe judge. See People v. Van Pelt, 76 N.Y.2d 156 (1990). Further, New York affords greaterprotection to successful appellants, than its Federal counterpart, by applying the presumption even*5where a different judge imposes a disposition. Id. at 161-63.The two year final stay away order of protection that Judge Lebwohl issued after theRespondent’s first inquest is due to expire on October 21, 2017. After the Respondent’s recentinquest, this Court made a finding of harassment in the second degree. The Petitioner’s attorneyrequests that, at this juncture, this Court enter a new two year final stay away order of protectionagainst the Respondent. Such an entry would extend the order of protection for an additional twoyears beyond the original final order’s end. The parties have had no contact since the issuance of theoriginal final order of protection nor does the Petitioner complain of any violations of that order.The Respondent has had little, if any, contact with her attorney during that time period. TheRespondent has had no contact with the family court, even failing to appear at her retrial afterprevailing on her appeal. There has been no showing of aggravating circumstances or good cause.There has been no offensive conduct or events subsequent to the initial trial that requires a harsherpenalty. The only difference between this trial and the last trial is the Respondent’s successfulappeal.The Court is mindful of the protection of victims from family turmoil and violence.However, in this case, that goal has already been achieved. To enter a new two year final stay awayorder of protection against the Respondent would effectively punish her for having appealed JudgeLebwohl’s denial of her motion to vacate her default. Such an imposition effectively violates theRespondent’s due process, especially in light of the fact that she has complied with the parties’previous final order of protection for the last two years. Due process requires that any sanctionimposed by this Court not be greater than that imposed originally absent conduct or events which*6warrant such.2 Thus, there is no basis in law to justify a new two year final stay away order ofprotection against the Respondent that commences after the original order of protection was due tosunset. Accordingly, the Court declines to enter a new final stay away order of protection against theRespondent who has already been “punished by the issuance of the 2015 OP[sic] and has beensuffering its legal and reputational consequences in effect for [two] year[s].”3This constitutes the decision, opinion, and order of the Court.
