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Issues In NY Criminal Law--Vol. 4, #15©

Issue: Forman Hearings

The issuance of an order of protection has become a frequent part of a criminal action. A temporary order of protection may be issued while the case is pending or upon the granting of an ACD; upon a judgment of conviction, the court may issue a permanent order.

A temporary order is issued typically at the time of arraignment. Particularly where defense counsel is not present, the unrepresented defendant may have no opportunity to address either the issuance or scope of the temporary order. Even when a defense attorney is present, the attorney at that point may lack enough information to address the scope of or need for an order.

Some judges will issue a temporary order even though the complainant or prosecutor has made no request for one. In particular with these situations, due process seems to get short shrift and ex parte justice becomes the norm. The proffered rationale for the order seems to be that the issuing magistrate would rather be safe than sorry.

The civil analogue for such orders are the "provisional remedies," e.g., temporary restraining order, preliminary injunction, and the like. Procedural protections are statutorily provided.

Where a defendant is legally turned out of his or her residence, or barred from contact with family members (whether those persons be the complainant or not), the presumption of innocence becomes a legal fiction to be addressed at trial several months later.

Several trial-level decisions hold that a defendant is entitled to a hearing where the temporary order deprives the defendant of a constitutionally protected interest.

As one treatise puts it: "The defendant is entitled to demand a prompt post-arraignment hearing on the need for conditions imposed by the order of protection excluding the defendant from the defendant's home or from contact with the defendant's family members." Elkins and Fosbinder, New York Law of Domestic Violence, § 1:10.

In the leading case on the subject, People v Forman, the court stated: "requirements of due process do entitle a defendant to a prompt evidentiary hearing after the temporary order of protection excluding defendant from the home has been issued. . . . The importance of defendant's interest in his home, the severity of the deprivation imposed through exclusion from the home, and typically, the need to resolve conflicting issues of fact and credibility as to the underlying family conflict, require that a trial type hearing be provided. Presentation of witnesses and cross-examination are the most suitable means for assessment of veracity and credibility." People v Forman, 145 Misc2d 115, 546 NYS2d 755 (City Crim Ct 1989); Handling a Criminal Case in New York, § 4:47.

The appropriate standard for considering a temporary order of protection is danger of intimidation or injury to a complainant. People v Meggie, 184 Misc2d 883, 885, 712 NYS2d 316 (Dist Ct 2000). There must be a reasonable foundation for the court's determination and the reason should be stated on or at least be ascertainable on the record. See also, People v Vanglahn, 189 Misc2d 613, 734 NYS2d 820 (Dist Ct 2001).

A hearing is not required at arraignment, the Forman decision notes, 145 Misc2d at 128. Rather, a prompt hearing includes presentation of witnesses and cross examination to assess veracity and credibility, 145 Misc2d at 129.

"Marry, sir, they have committed false report; moreover, they have spoken untruths; secondarily, they are slanders; sixth and lastly, they have belied a lady; thirdly, they have verified unjust things; and, to conclude, they are lying knaves." Much Ado About Nothing, Act V, sc. 1

Swearability hearing

State. A judicial determination of whether a witness, particularly a child witness, is able to understand the nature of an oath and testify under oath. People v LaSalle, 243 AD2d 490, 663 NYS2d 79 (2d Dept 1997); Handling § 6:23.


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