Motion of defendant by his attorney for an order vacating and/or reducing the expiration date of the orders of protection issued by this Court under SCI 292N-17 and SCI 1777N-17 partially on the grounds of the alleged unconstitutionality of CPL 530.12 is determined as hereinafter provided.I BACKGROUNDOn March 23, 2015, a permanent order of protection was issued against defendant on behalf of his grandparents under Docket 2014NA014928. That order directed defendant to refrain from committing any criminal acts against his grandparents, a “Do Not Harass” order of protection.On December 18, 2015, defendant was present at his grandparents house. There, defendant argued with his grandparents over his abuse of alcohol and drugs and was told by his grandparents that he would no longer be allowed to stay at their house. Then, without permission or authority defendant took his grandparents house keys and fled in violation of the order of protection. On June 16, 2016, a permanent stay away order of protection was issued based upon defendant’s conviction to several felonies committed against his grandparents. The order of protection directed that defendant stay away from his grandparents and their home and refrain from communication or any other contact with them.On August 22 and September 11, 2016, defendant unlawfully entered and remained in his grandparents house in violation of the stay away order of protection.On September 29, 2016, defendant once again unlawfully entered and remained in his grandparents house in violation of the stay away order of protection. Defendant was arrested and taken to Nassau County Medical Center before being found fit for confinement. Thereafter, defendant was charged by felony complaint with Aggravated Family Offense and eight counts of Aggravated Criminal Contempt.On February 16, 2017, defendant plead guilty before this Court under SCI 292N-17 to Aggravated Criminal Contempt, a class D felony and Criminal Contempt in the Second Degree, a class A misdemeanor. If defendant successfully completed intensive inpatient and outpatient drug treatment, was not re-arrested, did not warrant from the Court, and did not violate the order of protection the felony would be vacated and he would be convicted of only the class A misdemeanor, If defendant did not successfully complete treatment, warranted from Court, or was re-arrested, the felony charge would not be vacated, defendant would be convicted of both the felony and misdemeanor, and the People would recommend upstate jail time as a prior felony offender. A stay away order of protection for defendant’s grandparents was a condition of the plea. Subsequently, the defendant did not complete the required treatment and failed out of the treatment program. On April 20, 2017, defendant did not appear for Court and a bench warrant was issued.On July 16, 2017, defendant, in violation of outstanding orders of protection, unlawfully entered and remained in his grandparents home while they were away. When the grandparents returned defendant argued with them about being in their home and their refusal to give him twenty dollars. Defendant became enraged, pushed and shoved his grandfather and then retrieved a kitchen knife and turned towards his grandfather in a threatening manner. Defendant then dropped the knife and fled the scene. Defendant was arrested the next day and charged by felony complaint with Burglary in the Second Degree, two counts of Aggravated Criminal Contempt and four counts of Criminal Contempt in the First Degree. That same day defendant was involuntarily returned on the bench warrant issued on SCI 292N-17.On November 16, 2017, defendant plead guilty under SCI 1777N-17 to Aggravated Criminal Contempt, a class D felony. Thereafter, defendant was sentenced, as a second felony offender, to an indeterminate term of imprisonment of two and one-half to five years and a stay away order of protection was issued for defendant’s grandparents. That same day defendant was sentenced under SCI 292N-17, as a second felony offender, to an indeterminate term of imprisonment of two and one-half to five years and a stay away order of protection was issued for defendant’s grandparents. This Court ordered that both orders of protection be in effect for eight years from the end of the maximum term of the indeterminate sentences imposed upon defendant with an expiration date of November 15, 2030. Both sentences were ordered to run concurrently to each other by this Court.The defendant now moves to vacate the order of protection on two (2) specific grounds. The first ground is to reduce the maximum period of the order of protection against each of the grandparents, due to the age of the grandparents and the exceptionally long time period, as well as the allegations that they didn’t consent to the maximum protection dates. Secondly, the defendant argues that CPL 530.12 is unconstituted as it applies to his grandparents in that his grandparents constitutional rights to freedom of intimate association are violated due to the fact they cannot have any contact with the defendant for what may be the rest of their natural lives.II ORDER OF PROTECTION TIME PERIODDefendant seeks to vacate and/or reduce the time period of the stay away orders of protection issued under SCI 292N-17 and SCI 1777N-17. Defendant argues that the Court has the discretion to reduce the time period of the orders of protection pursuant to CPL §530.12(5). Defendant has submitted affidavits from both his grandparents which state that they were the complainants in these cases and were never told that the stay away orders of protection would extend to November 15, 2030, never consented to the stay away orders of protection with the maximum expiration date allowed by the law, that they are both in their late eighties and the stay away orders of protection essentially prevents them from having a relationship with their grandson for the rest of their lives.Contrary to the defendant’s argument, the Court has the authority to issue an order of protection, in the absence of the victim’s consent. People v. Lilley, 81 AD3d 1448 (4th Dept. 2011). Such is the case even where the protected party has actually refrained from consent. People v. Monacelli, 299 AD2d 916 (4th Dept. 2002). Also, the order of protection in the case at bar was prepared and issued as part of a plea bargain duly consented to and authorized by the defendant on the record at the time of both pleas and sentences. People v. Collins, 117 AD3d 1535 (4th Dept. 2014).The Court further notes that where the protected party requests a termination or modification of a protective order, the defendant must still demonstrate that there has been a change in circumstances which leaves the court “firmly convinced that the defendant does not pose a danger to the protected party.” People v. Munger, 53 Misc 3d 791 (City Ct., Glens Falls 2016) citing People v. Lassitter, 50 Misc3d 264, 269 (Crim Ct, NY County 2015); People v. Bohlman, 30 Misc3d 313 (Nassau Dist Ct 2010).Here, other than the request of his aged grandparents, the defendant has failed to provide this Court with any information, such as drug treatment or anger management therapy, that would lead this Court to consider that progress has been made towards a change of circumstances. Therefore, although defendant’s grandparents have petitioned the court for a termination or modification of the stay away orders of protection, defendant has failed to demonstrate that there has been a change in circumstances to convince the Court that defendant does not pose a danger to the protected parties, his grandparents.III CONSTITUTIONALITY OF CPL 530.12In order to establish standing to challenge the constitutionality of a statute, a plaintiff must demonstrate that he or she has suffered some actual or threatened injury to a protected interest by reason of the operation of the unconstitutional feature of the statute. Matter of Daniel C., 99 AD2d 35, 42 (2d Dept. 1984) affd 63 NY2d 927 (1984).Here, defendant’s grandparents have demonstrated actual injury in that their right to intimate association with the defendant has been directly restricted by the stay away orders of protection issued by the Court pursuant to CPL §530.12 under SCI 292N-17 and SCI 1777N-17. Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984). Accordingly, the Court finds that defendant’s grandparents have standing to challenge the constitutionality of CPL §530.12 as applied to them. We will now address the constitutionality of CPL 530.12.It is well settled that there is a strong presumption that a statute duly enacted by the Legislature is constitutional, and before declaring a law unconstitutional, the invalidity of the law must be demonstrated beyond a reasonable doubt. People v. Pagnotta, 25 NY2d 333, 337 (1969). If there is any reasonable basis for sustaining the constitutionality of the statute, the dictates of the law are that the statute must be sustained and not declared unconstitutional. Nettleton Co. v. Diamond, 27 NY2d 182 (1970); Lighthouse Shores v. Town of Islip, 41 NY2d 7 (1976).The right to intimate association guarantees an individual the choice of entering an intimate relationship free from undue intrusion by the state. Roberts. 468 US at 617-18. At a minimum, it extends to relationships that “attend the creation and sustenance of a family — marriage, childbirth, the raising and education of children, and cohabitation with one’s relatives.” Id. At 619.Although a constitutionally protected right, the guarantee of intimate association is not without bounds and can be limited if there is strong exception required under public policy. For example, the state can prohibit a prison inmate and his wife intimate conjugal visits as a valid public policy to prevent the further spread of AIDS, a life threatening disease at the time. Doe v. Coughlin, 71 NY2d 48 (1987). Nor was it a constitutional violation of intimate association, where a surcharge was placed on personal collect phone calls between incarcerated persons and calls to close family members, particularly where other forms of communication were available to the inmate. Watson v. NYS Dept. Of Correctional Services, 13 NY3d 475 (2009).Here, it is clear that the orders of protection issued by the Court pursuant to CPL §530.12 restrict the grandparents’ right to intimate association with defendant. However, the government may impose restrictions reasonably and necessarily related to its continuing interest in a wrongdoer’s rehabilitation, and in protecting the public from further criminal acts. Sanitation & Recycling Indus. V. City of New York, 107 F3d 985, at 998 (2d Cir. 1997) quoting Birzon v. King, 469 F2d 1241, 1243 (2d Cir. 1972).In conclusion, the Court finds that there is no basis upon which to find that CPL §530.12 is unconstitutional as applied to the grandparents. Defendant was arrested numerous times for incidents involving his grandparents. Furthermore, defendant repeatedly violated the multiple orders of protection issued by the Court in favor of his grandparents, failed to complete court ordered drug treatment and failed to appear in Court resulting in a bench warrant. In his last arrest defendant pushed and shoved his grandfather and thereafter threatened him with a kitchen knife. Under these circumstances, the orders of protection issued by this Court under SCI 292N-17 and SCI 1777N-17 pursuant to CPL §530.12 are reasonably related to legitimate public policy interests to ensure defendant’s rehabilitation and protection of the victims, defendant’s grandparents. Sanitation & Recycling Indus, supra.Accordingly, defendant’s motion is denied in its entirety.In reaching the aforementioned determination the Court reviewed and considered defendant’s Notice of Motion, Affirmation in Support with Exhibits, the People’s Affirmation in Opposition with Exhibits, defendant’s Reply Memorandum and the People’s Surreply in Opposition.This determination shall constitute the decision and ORDER of the Court.SO ORDERED.Dated: May 1, 2019Mineola, NY.
