Court of Appeals Affirms People v. Wood Decision

January 1, 2001

Jennifer DeCarli

On December 21, 2000, the Court of Appeals affirmed the People v. Wood decision issued by the Appellate Division 4th Department, holding that double jeopardy prohibited finding the Respondent guilty of contempt 1st for violating a criminal court order of protection when he had previously been found to have willfully violated a Family Court order of protection based on the same underlying acts.

THE DECISION

The Court of Appeals based its decision on the application of the double jeopardy test, outlined in Blockburger, to the case at bar. The Blockburger test asks whether or not the two offenses require proof of an additional fact which the other does not. If so, double jeopardy is not violated. When comparing the two contempt statutes (PL 215.51(c) vs. FCA 846-a) at issue, the Court found that neither statute contains an additional element that the other does not. Further, the Court held that the contempt statute in the Family Court Act is actually a lesser included offense of criminal contempt 1st. As such, the Respondent's constitutional protection against double jeopardy was violated. The Court found unpersuasive the argument that since the two contempt findings were based on violations of different orders of protection, double jeopardy should not attach. The Court stated,

"Indeed if the separate origin of each court order were alone determinative, thereby removing subsequent prosecutions from double jeopardy protection, the constitutional prohibition would be eviscerated. The Legislature's broad based attack on domestic violence which allowed parallel court proceedings in different venues was a recognition of the difficult task at hand - stemming the tide of domestic abuse between people locked in destructive relationships. The invocation of double jeopardy considerations in this case does not impinge on that goal, it merely recognizes that these orders of protection had one and the same purpose."

The Greater Upstate Law Project and the Legal Aid Society of Rochester were granted leave to intervene as amici curiae in the case. The crux of our argument was that the Appellate Division employed the wrong double jeopardy analysis and that the Legislature intended Family Court Act Section 846-a to be civil and remedial in nature.

With regard to our legislative argument, we argued that the Legislature had clearly intended violation proceedings under Family Court Act §846-a to be civil in nature as evidenced by the language in Family Court Act §812 and by the landmark 1994 Family Protection and Domestic Violence Intervention Act, which established concurrent jurisdiction over family offenses. Further, the two forums have distinctly different purposes. Specifically, with regard to violations, the Family Court provides remedial alternatives under § 846-a with incarceration being just one option. In contrast, when a contempt charge is filed in Criminal Court, the purpose is solely to punish the offender. As such, double jeopardy should not be implicated.

We further argued that if double jeopardy is violated when a victim of domestic violence proceeds in both criminal and family court on an order of protection violation, this would contravene the legislative purpose of the Family Protection and Domestic Violence Intervention Act of 1994. To support our argument, we turned to the legislative findings of the 1994 Act. The Legislature stated, "The legislature further finds and declares that in circumstances where domestic violence continues in violation of lawful court orders, action under the criminal law must remain in place as a necessary and available option..... The victims of family offenses must be entitled to the fullest protections of our civil and criminal laws." Unfortunately, with this ruling, when orders of protection are violated, action under the criminal law will not be an available option if a victim first proceeds with a violation petition in the quicker and less protracted Family Court setting.

In response to the argument that §846-a of the Family Court Act is remedial and not punitive and thus does not result in double jeopardy implications, the Court of Appeals disagreed with the above reasoning. In a footnote, the Court stated, "We have recognized that despite the "civil" legislative label, section 846-a, which provides for a penalty of incarceration for violation of Family Court orders, is punitive in nature. An adjudication for contempt under Article 8 is properly characterized as punitive because it does not seek to coerce compliance with any pending court mandate, but rather imposes a definite term of imprisonment and punishes the contemnor for disobeying a prior court order."

THE EFFECT OF THE DECISION FOR DOMESTIC VIOLENCE ADVOCATES AND SUGGESTIONS FOR PRACTICE

The decision leaves domestic violence advocates with difficult decisions when advising clients on how to proceed if their order of protection has been violated and calls for regular and meaningful contact with District Attorney's offices.

Victims of domestic violence need to be informed of the possible ramifications of proceeding on a violation petition in Family Court when their order of protection has been violated. Advocates need to stress the advantages and disadvantages to proceeding in Family Court, and that a proceeding under §846-a will essentially preclude a subsequent contempt prosecution in Criminal Court. The obvious advantage for proceeding in Family Court is that the process is much quicker and victims will receive more immediate relief. The obvious disadvantage is that sentences of incarceration under §846-a are still rare in Family Court and Respondents can only be given up to six months incarceration per violation. It is important to remember that under the Walker v. Walker decision, 86 NY 2d 624, consecutive sentences of imprisonment are permitted for multiple violations of an order of protection.

One suggestion for practice, which could be used in certain cases is to utilize §847 of the Family Court Act. It has been speculated that this Section was originally drafted in order to avoid the double jeopardy issue.

This section addresses procedures for violations of orders of protection in certain cases. It states that when another family offense has occurred subsequent to the issuance of an order of protection, one can file a new family offense petition alleging a new family offense, file a violation petition and/or seek to have an accusatory instrument filed in a criminal court. Obviously, as a result of the Wood decision, one can not now seek to file an accusatory instrument in criminal court and file a violation petition at the same time without invoking double jeopardy concerns. However, it may be useful in some cases to file a new family offense petition instead of a violation petition. This will preserve a possible contempt charge in criminal court, while at the same time allow a victim to obtain some type of immediate relief in Family Court. By filing a new family offense petition instead of a violation petition, one will avoid the double jeopardy issue. Also, by filing the new family offense petition, the new petition should be able to make the Court aware of the violation that occurred. As a result, the Court may be more likely to issue a stronger disposition under §841 of the Family Court Act for this "new" family offense.

Ultimately, the decision on how to advise a client to proceed if her order of protection is violated should depend on her needs. If the client's main objective is to obtain immediate relief, it may be advisable for her to proceed in Family Court on the violation. Decisions will also be influenced by the probability of your District Attorney's office successfully prosecuting the contempt charge. Obviously, violations of orders of protection which involve physical injury may have a higher likelihood of successful prosecution. All of these factors should be considered when advising a client on how to proceed once her order of protection has been violated.

Unfortunately, many victims of domestic violence do not have access to legal advice prior to coming to Family Court and as a result will not have the luxury of speaking to a lawyer and/or an informed advocate about the ramifications of the Wood decision on their particular case. To complicate matters further, the 1994 Act requires that law enforcement and court personnel inform victims that they have the right to proceed concurrently in both Family Court and Criminal Court when a family offense has been committed against them. However, this advice will be in error when it comes to proceeding on a violation petition. Once a victim initiates a violation petition in Family Court, depending on when one argues that double jeopardy attaches in the Family Court setting, (See Criminal Procedure Law 40.30(1)), it is unlikely the District Attorney's office will be able to successfully charge and prosecute a contempt case.

CONCLUSION

The Court of Appeals decision in People v. Wood will result in confusion and uncertainty for domestic violence legal service attorneys over how to handle violations of orders of protection. Most importantly, advocates need to be aware of the ramifications of the decision in order to properly advise their clients on how to proceed as well as maintain good communication with their respective District Attorney's office.

Unfortunately, for victims of domestic violence that are unrepresented by counsel or who are not working with an informed advocate, their ability to successfully navigate the Family Court and criminal court system when their order of protection has been violated will be severely impaired as a result of the Wood decision.

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