Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 1, #7©

Issue: Whether a finding of contempt in an Article 8 Family Court proceeding bars a criminal proceeding on double jeopardy grounds

WHEN a civil proceeding and a criminal proceeding are both brought against a person for conduct arising old of one incident, double jeopardy usually does not apply. Example: A civil tort suit for assault and an assault indictment The civil proceeding is usually not criminal or punitive in nature such as to cause jeopardy to attach.

Family Court proceedings as well are not punitive in nature, according to People v Roselle, 84 NY2d 350,618 NY2d 753 (1994). Thus, an Article 10 proceeding for child abuse :or neglect, while alleging criminal conduct (e.g., sexual abuse or endangering the welfare of a child), nay be brought along with a criminal charge. Neither statutory nor constitutional double jeopardy is offended.
 
The state legislature repealed the "choice of forums" requirement that previously existed for family offenses Now, a family member may file both an Article 8 proceeding in Family Court as well as institute criminal charges. Both courts may issue orders of protection. With so many orders of protection being issued, contempt has become a burgeoning area of law.
A person who violates a Family Court order of protection is subject to contempt of court under Article 8. Penalties include probation and incarceration. So, then, does a Family Court finding of contempt cause jeopardy to attach, so as to bar a criminal proceeding?

A lower court decision from Onondaga County held that it did. The typical Family Court case, as noted by the Court of Appeals in the Roselle decision above, does not carry with it the possibility of punishment like probation or incarceration. A contempt proceeding does. The possibility of that punishment means that jeopardy attaches People v Arnold, 174 Misc2d 585, 618 NYS2d 753 (1997) An unreported 1997 Monroe County State Supreme Court decision, People v Fulton, similarly holds. See, Handling a Criminal Case In New York (West 1999-2000), secs. 15:117 and 21:88.

Recently, the Fourth Department reached the same result in a 3-2 decision. Orders of protection were issued in both Family Court and City Court against a man to have “no contact whatsoever” with his wife. After several telephone calls to the wife were traced to his residence, he was charged in both Family Court with contempt and in a criminal proceeding with Criminal Contempt 1st a class E felony, along with Aggravated Harassment. In the Family Court proceeding, he was sentenced to 6 months in jail. Defense counsel's motion to dismiss the indictment on double jeopardy grounds was denied the defendant was convicted at trial. On appeal, the Fourth Department reversed the felony convictions. People v Wood, 260 AD2d 102, 698 NYS2d 122 (4th Dept 1999).

The Appellate Division in Wood favorably commented on the reasoning in the Arnold decision. The Fourth Department, though, went further in one respect. The Family Court contempt proceeding was based on violating the O.P. there, while the felony charge was based on violating the City Court O.P. This did not matter for double jeopardy purposes; it was the same conduct of the defendant that resulted in both proceedings. The convictions on the substantive crime, Aggravated Harassment, however, were upheld.

QUOTATION: "Our American professors like their literature clear and cold and pure and very dead." Sinclair Lewis

RECENT statutory change: Family Court Act 812(1) and CPL 530.11 now expressly provide that criminal court's jurisdiction shall not be divested when a complainant proceeds in Family Court. L. 1999, ch. 125.
 
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