DECISION AND ORDER Defendant appeared for arraignment on December 27th, 2019 days before the effective date of New York’s new bail reform law codified under Article 510 of the Criminal Procedure Law. As defendant’s custody status will be governed by this new law, the Court applied the factors enumerated in CPL §510.30 for determining the conditions least restrictive for ensuring his return to court. As the new statute requires the Court to explain its choice of release on the record or in writing, the Court is issuing this written decision. CPL §510.10(1). The felony complaint, signed under penalty of perjury by the complainant, defendant’s grandmother, charges defendant with Assault in the Second Degree (PL §120.05(12)), Assault in the Third Degree (PL §120.00(1)), Criminal Obstruction of Breathing or Blood Circulation (PL §120.11(a)) and Harassment in the Second Degree (PL§240.26(1)). At arraignment, the Court was presented with the following factual allegations: that at 7:10 p.m. on December 10th, 2019 in the apartment where the defendant and his grandmother reside, defendant, who is thirty-three years old, placed his hands around his grandmother’s neck and applied pressure causing her to suffer substantial pain, redness and lacerations to her neck. As defendant’s grandmother is seventy-seven years of age and the defendant is more than ten years younger, this alleged assault is charged as a violent felony as defined by CPL §70.02. The People represented that dating back to 2015, there were at least seven prior domestic incident reports filed by the police involving the defendant and his grandmother. Most of these calls involved allegations of violence against the complainant. Defendant also has a documented history of violating orders of protection and criminal contempt involving a member of his same family and household as defined by CPL §530.11, specifically his father. On December 10, 2018, and April 12, 2018, respectively, defendant was convicted of Criminal contempt in the Second Degree (PL §215.50(3)). At the time of his sentence, a final five-year order of protection was issued ordering the defendant to stay away from the home of his father. Prior to arraignment on the present case, the defendant reported to the Criminal Justice Agency (CJA) during his release assessment interview that he lived in the Bronx with his father and grandmother and that he had resided in this home his entire life. The Court notes, that if true, residing at this residence with his father would be an apparent violation of the December 2018 order of protection that requires defendant to stay away from his father’s home, and, therefore, a separate incident of failing to follow an order of protection issued on behalf of a member of the same family or household as defined by CPL §530.11. Defendant’s criminal history includes two or more bench warrants in the last five years for failing to appear in court. His score on a pre-trial risk assessment conducted by CJA was 16 out of 25. Based upon this score and the charge of a violent felony offense, CJA recommended the Court to consider all options in setting terms of release. The CJA score considered the stability of defendant’s housing in reaching its numerical calculation. This calculation did not account for the issuance of a subsequent order of protection. Presumably a court order prohibiting defendant from returning to his residence would increase the statistical risk of returning for all required court appearances. In determining the least restrictive and degree of restriction or control necessary for assuring a defendant’s return the Court must rely on available information (CPL 510.30). CPL §510.10(4) sets out the types of securing orders permitted in a criminal case and the standards for a Court to apply. As defendant is charged with a felony enumerated in PL §70.02 of the penal law, a violent felony offense of Assault in the Second Degree, the Court is authorized to release this defendant on his own recognizance, release under non-monetary conditions or fix bail. Here the People did not seek monetary bail. Neither the People nor counsel for the defendant objected to the Court imposing pretrial supervision as the least restrictive alternative for ensuring defendant’s return to court. The Court rests its decision on defendant’s history of violating orders of protection against his father, his previous record of non-appearance in court evidencing a risk of flight, and his score on the pre-trial risk assessment. Defendant’s demonstrated contempt in violating orders of protection, illustrated a documented failure to abide by court orders which this Court finds directly relevant to defendant’s likely attendance at court mandated appearances. (See, CPL §510.30[g][i]). Upon the Court’s release determination at defendant’s arraignment, the defendant signed an agreement to abide by a supervised release agreement with an approved pretrial services agency, Bronx Community Solutions (BCS). The written agreement, in conformance with CPL §510.40, outlines a defined set of non-monetary conditions particularized by the Court for this defendant, including an obligation to follow instructions from the judge and the supervised release program and to participate in weekly check-ins with BCS each month: two by phone, and two in person. While the bail reform statute fixes the court’s attention on the singular issue of whether a defendant will return to court to reduce pre-trial incarceration and level the playing field for defendants regardless of individual financial circumstances, the vexing question courts must now consider is how other concomitant court orders issued prior to trial should be reconciled with the bail reform statute. Left intact by the legislature are a series of laws involving conditions of release that have no bearing on whether a defendant returns to court and alternatively focus on objectives such as the protection of victims or more generalized public safety. It is evident that the legislature intended that judges retain the authority to issue such orders. For instance, while a police officer is required under the new law to issue a desk appearance ticket for most misdemeanors, CPL §150.20 specifically provides that an officer can bring a defendant before the court for arraignment when a person is charged with a crime where a court may issue an order of protection or suspend a person’s driver’s license. In this case of alleged family violence, specifically elder abuse, the Court must determine whether to issue a temporary order of protection and if so its scope and terms. Informing the Court’s analysis is New York’s long history of protecting victims via orders of protection with the passage of the Family Protection and Domestic Violence Intervention Act in 1994. The legislature has left these vehicles intact. Thus, criminal and family courts retain concurrent jurisdiction over family offenses which involve the issuance of a temporary order of protection. See, FCA §§812. Under the criminal procedure law, CPL §530.11(h), a court is required to inform a complainant in a family offense matter that the case may continue in the criminal court, be heard in family court or proceed in both venues concurrently. The legislature has made clear that in family offense proceedings the party protected by a criminal court order of protection assumes specific rights, including notice should a defendant move to modify or vacate an order. (CPL §530.13(15)). In short, while a criminal court must focus on the rights of a criminal defendant, the legislature makes clear that in these circumstances, criminal courts also play a role in safeguarding victims. The issuance of an order of protection is one such place where criminal courts must consider a victim’s safety. (See also, Executive Law §642-a relating to fair treatment of child victims as witnesses; Executive Law §645 requiring courts to promulgate standards for fair treatment of victims). As the Court of Appeals held in People v. Nieves, “[t]he legislative history of a recent amendment to CPL 530.13 indicates that 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”, (Nieves, 2 NY3d 310, 316 [2004], citing Governor’s Mem. approving L. 1998, ch. 610, 1998 McKinney’s Session Laws of N.Y., at 1485). The Court in Nieves further held that temporary and final orders of protection are intended to serve victims, not to punish the accused.(Id.). Cognizant of legal precedent and the emphasis our state legislature has placed on balancing the rights of defendants with the protection of victims in family offense cases, this Court must determine the appropriate breadth and conditions of the temporary order of protection issued in this matter. CPL §530.12 provides that when an action is pending involving a member of the same family or household, a court may issue a temporary order of protection as a condition of an order of recognizance or release. In addition to any other conditions set forth in the order of protection, the Court may require specific enumerated conditions, such as an order to stay away from the home of the complainant or refrain from communication. As the prefatory language to CPL §530.11(1) makes evident, the enumerated conditions set out in the statute are not exclusive. In promulgating uniform temporary order of protection forms as required by CPL §530.11(12) the chief administrator of the courts has specifically included what is referred to as the “99″ condition, which allows a judge to “[s]pecify other conditions defendant must observe for the purposes of protection.” (People v. Coleman, 11 Misc 3d 1019, 1023 (Sup Ct Kings Cty 2006). As the Court held in People v. Coleman, “any ‘additional’ condition should relate to the protection of the victim.” (Id. at 1022). Here, the Court has determined that a reasonable condition to the temporary order of protection is that defendant participate in his pretrial release program at Bronx Community Solutions. The Court finds this relates to the protection of the complainant as the condition is intended to enhance the likelihood defendant abides by the temporary order’s other conditions, such as the requirement to stay away from his grandmother’s home where he had been residing. BCS will review with the defendant his obligations under the temporary order of protection at each court-ordered check-in, by phone or in-person. Defendant will be provided with access to services relating to employment, counseling, and housing, all of which are intended to have the ameliorative impact of aiding his compliance with the conditions of the order that specifically protect his grandmother. While the court order that releases defendant under pretrial supervision to BCS has the objective of ensuring defendant’s return to court, inclusion of BCS in the terms of the temporary order of protection serves a separate and distinct objective of protecting the complainant. Case law provides further guidance to the Court in reaching this determination. In People v. Bongiovanni, 7 (183 Misc 2d 104 (Sup Ct Kings County 1999), the Court held that including, as a condition of release, the defendant’s attendance at a domestic violence program was reasonable, stating that: “Until there is a determination of guilt or innocence the court is responsible not only to seek justice by safeguarding the rights of the defendant; it must also insure that the complainant is secure and that societal peace is preserved” (Id. at 105-106). Similarly, in People v. Coleman, the Court added a travel restriction to the terms and conditions of the order of protection. The Court reasoned that the restriction was proper as a term of the conditional discharge and the order of protection reasoning that the “order of protection is for the benefit of victim and not a form of punishment for the crime.” (11 Misc 3d 1019, 1022 [Sup Ct Kings Cty 2006], citing Nieves, 2 NY3d at 315). As set forth in these cases, during the pendency of the case, the complainant’s security is a responsibility of the court. (See, generally, People v. Adams, 193 Misc 2d 78 (Sup Ct, Kings Cty 2002) [defendant was barred by federal law from possession of firearm, including hunting rifle while order of protection in effect]; United States v. Emerson, 270 F 3d 203 (5th Circuit 2001) [prosecution for possession of firearm while subject to order entered in a divorce action did not violate the Second Amendment]). Violating an order of protection is a separate offense that may be punishable under the penal law or as a separate contempt proceeding under CPL §530.12(11). Thus, the Court is aware that adding conditions to the order of protection can subject the defendant to forms of punishment for willful violations that are separate and apart from the original criminal action. (CPL§530.12(10) and (11)). This is also the case when a Court suspends a defendant’s driver’s license pre-trial, thereby removing the defendant’s privilege to drive in the state of New York. The risk of additional legal sanction is justified because it protects the public — or in this case another party — during the pendency of a case. Here the Court must consider that defendant has a history of violating orders of protection and that the complainant is an older adult and, thus, perhaps more vulnerable. The Court finds that under these circumstances, adding defendant’s participation with Bronx Community Services as a condition in the temporary order of protection provides reasonable legal protections to the complainant as a protected party under CPL§530.12. Conclusion In view of the foregoing, the defendant is released pending trial under the non-monetary conditions set forth in the previously executed release agreement, which is incorporated hereto by reference and made a part hereof. This constitutes the decision and Order of the Court. Dated: January 8, 2020 Bronx, New York
