DECISION AND ORDER The defendant, Joseph Cruz, is charged with Assault in the Third Degree (PL §120.00[1]), Attempted Assault in the Third Degree (PL §110/120.00[1]), Menacing in the Third Degree (PL §120.15), and Harassment in the Second Degree (PL §240.20). He is alleged to have grabbed the complainant by the arms and shook her violently; wrapped his hands around her throat and squeezed; and caused her to suffer redness, substantial pain, and fear further injury. At the defendant’s arraignment on May 7, 2023, the People requested a full stayaway order and consented to the defendant’s release on his own recognizance. The defendant did not object to the full stayaway order but requested a modification to permit him to access his personal property. Although the defendant did not object to the issuance of the full stayaway order, he also requested a hearing pursuant to Crawford v. Ally (197 AD3d 27 [1st Dept. 2021]). The court issued a temporary order of protection (TOP) pursuant to CPL §530.12, which orders the defendant to stay away from the complainant, granted the defendant’s request for a modification to access an apartment he shares with the complainant in order to obtain his personal property, and also sua sponte modified the TOP to be subject to subsequent Family Court orders. The application for a Crawford hearing was then denied orally, and this written decision now follows. For the reasons that follow, the application for a Crawford hearing is denied. BACKGROUND The defendant is the sole leaseholder for an apartment located at 1602 East 43rd Street, (the premises). The current lease does not expire until some time in 2024. The defendant resides at the premises with the complainant, and two infant children that they share in common. They have resided at the premises as a family for at least the past four years. The defendant moved for a Crawford hearing on the grounds of loss of property and personal interest. Specifically, he argued that the TOP would result in a loss of access to the premises that he shares with the complainant and their two small children, as well as a loss of access to the children. ANALYSIS When a defendant provides the court with information showing that there may be an immediate and significant deprivation of a substantial personal or property interest resulting from the issuance of a temporary order of protection, the Criminal Court should conduct a prompt evidentiary hearing on notice to all parties in a manner that enables the court to determine the facts necessary to decide what, if any, temporary order should be issued (see Crawford at 34). Thus, a defendant bears a burden of showing that they will suffer an immediate and significant loss of a substantial personal or property interest before the court can order a hearing (id.). However, neither Crawford nor any other trial court has defined the requirements to meet that burden (see generally People v. Winston, 183 N.Y.S.3d 295 [Bronx Co Crim Ct 2023]; People v. Simmons, 78 Misc.3d 711 [Bronx Co Crim Ct 2023]; People v. PD, 78 Misc.3d 352 [Kings Co Crim Ct 2023]; People v. Riley, 78 Misc.3d 327 [Bronx Co Crim Ct 2023]; People v. Anonymous, 76 Misc.3d 1022 [Bronx Co Crim Ct 2022]). To obtain a hearing on the grounds of a loss of property interest, the defendant must establish more than just the suspension of access to the property. The defendant must establish that the suspension of access would result in an imminent loss of property interest. While not an exhaustive list, the court may look to issues such as the loss of possession resulting in a non-renewal of specialized housing, such as NYCHA; or where the defendant is a leaseholder, the loss of a free market or rent stabilized leased premises due to an inability to pay rent at two different locations; loss of housing subsidy by the suspension of possession; or where the defendant is a subtenant or licensee of the complainant and would be rendered homelessness as a result of the order of protection. To obtain a hearing on the grounds of a loss of personal interest, the defendant must establish an imminent loss of that interest. Crawford clearly enumerates the loss of access to a child as a substantial personal interest. CONCLUSION The defendant fails to meet his burden on the ground of a loss of property interest. The defendant argued that he was the sole leaseholder and that the lease did not expire until 2024. There were no other facts set forth in support of his application. There was no showing that the temporary suspension of his access to the premises would result in an immediate loss of the lease that remains in effect until some time in 2024. There was no showing that the terms of the lease required him to be in physical possession of the premise. The defendant set forth no information as to whether the premises is a NYCHA property with imminent recertification; or if the lease is free market or rent stabilized and subject to renewal; or that the cost of alternative lodgings would prevent him from paying the rent at the premises and subject him to a subsequent non-payment proceeding in Housing Court; or the risk of losing housing subsidy. Indeed, there were no facts presented showing that he was in any risk of losing his interest in the premises, only access. Accordingly, the defendant fails to show an immediate or substantial deprivation of a property interest that would trigger a due process hearing to modify the TOP. The defendant correctly argues that the TOP deprives him of access to his children but the application for a Crawford hearing is premature. A local criminal court does not have jurisdiction to modify an order of protection to establish a schedule for custody and visitation of children a defendant has in common with a complainant. The court has no jurisdiction over a complainant at a criminal court arraignment nor does the court have authority to compel the complainant to comply with the terms of an order issued pursuant to CPL §530.12. The local criminal court’s authority is essentially restricted to either issuing a full stayaway order, a limited order to refrain from committing family or criminal offenses, or to not issue an order of protection at all. However, if there is an existing written visitation order, a local criminal court may permit the visitation to continue when issuing a full stayaway order (CPL §530.12[2])1. If there is no existing visitation order, the defendant may seek custody or visitation through Family Court by petition or order to show cause when a Criminal Court order of protection is issued (see FCA §651). This allows a court of competent jurisdiction to obtain personal jurisdiction over the complainant and to determine issues of custody and visitation that are in the best interest of the child with input from both parents. In Crawford, the defendant was improperly deprived of access to the children for approximately three months without a due process hearing. The Crawford court reasoned that the interference with access to parenting triggered a due process right to an expedited evidentiary hearing (Crawford at 33, citing Matter of FW (183 AD3d 276 [1st Dept 2020]). Thus, this court holds that a defendant must show that they are unable to obtain an expedited evidentiary hearing regarding custody and visitation in Family Court in order to establish an imminent and substantial loss of a personal interest where a temporary order of protection suspends their access to a child. Upon such a showing the Criminal Court must consider modifying a full stayaway order issued pursuant to CPL §530.12 (see Crawford, supra). In the instant matter, the defendant did not present an existing written visitation order. The defendant has not had an opportunity to go to Family Court to file a petition or for custody and visitation or file an order to show cause for temporary custody and visitation. Accordingly, the defendant’s application, based on the grounds of deprivation of personal interest, is denied. Finally, unlike Crawford, the defendant did not object to the initial issuance of the full stayaway order. Rather, he requested a modification and a Crawford hearing, which he may seek only after the issuance of the full stayaway order. Inasmuch as the defendant did not object to the issuance of the full stayaway order, knowing it would deprive him of access to both the premises and the children, there is no basis to challenge the order on those same grounds once the order was issued. This constitutes the decision and order of the court. Dated: May 9, 2023
