In a recent Domestic Violence case being prosecuted in Bronx County, the defendant challenged the issuance of a Temporary Order of Protection during the pendency of his Criminal Obstruction of Breathing or Blood Circulation (Strangulation) prosecution that prevented him from living in the home that he owned. A 2021 decision from an Appellate Court required a hearing any time that the issuance of a temporary order of protection (TOP) would cause both a significant and immediate deprivation of a substantial property or personal interest. Insistent that he could be in the house without even running into his significant other, the defendant asked the court to reverse this order. Ultimately, the court held an informal hearing without witness testimony and decided to keep the Temporary Order in place.
Facts of the Case
According to the opinion, the defendant in this case was charged with criminal obstruction of breathing and harassment after he tried to choke his wife. The State charged the defendant, and the court held a hearing to determine what should happen with the order of protection during the pendency of the case. The hearing was informal, meaning the court did not require witness testimony but rather accepted documents as evidence.
At the end of the hearing, the court ruled that the defendant could no longer enter the home he owned with his wife but set repeated short adjournments to monitor the situation. After the defendant entered a domestic violence program and the wife was offered crime victims services the Court eventually modified the order to allow them to reside together but with no further contact. The Defendant was excluded from the home for approximately 6 weeks.
The Decision
The defendant argued that he was facing housing instability as a result of the court’s order, which was unnecessary because the house was big enough for them to both be inside without ever seeing each other. The defendant was also argued that the court’s hearing was procedurally defective. He argued that several pieces of evidence were admitted unfairly and thus that the court should reconsider the order.
Looking at the record of the case, the court disagreed with the defendant’s arguments. The Court did an analysis of the procedures employed in other areas of law to protect individuals due process rights including when a driver’s license can be suspended for having a blood alcohol level of .08 or more pending prosecution, family court hearings when children are removed from the home and sex offender hearings to determine sex offender levels. The Court concluded that an informal hearing that accepted “reliable” hearsay without any witness testimony was sufficient to protect the defendant’s due process rights.
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