The People, Respondent,v.Steven Baisley, Appellant.

Brief

N.Y.September 13, 2018

State of New York Court of Appeals BRIEF FOR DEFENDANT-APPELLANT STEVEN BAISLEY DICK BAILEY SERVICE, Inc. · 1‐800‐531‐2028 · dickbailey.com [REPRODUCED ON RECYCLED PAPER] Justice Court, Orange County, Index No. 060109/2014 THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- STEVEN BAISLEY, Defendant-Appellant. TO BE ARGUED BY: COURT OF APPEALS NO. APL RICHARD L. HERZFELD 2017-00187 TIME REQUESTED:15 MINUTES RICHARD L. HERZFELD, P.C. Attorneys for Defendant-Appellant 112 Madison Avenue, 8th Floor New York, New York 10016 (212) 818-9019 Date Completed: December 14, 2017 TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . 1 PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . 2 QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . 2 THE MISDEMEANOR CHARGES.. . . . . . . . . . . . . . . . . . . 2 THE MOTION TO DISMISS.. . . . . . . . . . . . . . . . . . . . 3 DECISION. . . . . . . . . . . . . . . . . . . . . . . . . . . 4 AFFIDAVIT OF ERRORS.. . . . . . . . . . . . . . . . . . . . . 5 APPELLATE TERM DECISION.. . . . . . . . . . . . . . . . . . . 5 LEAVE TO APPEAL.. . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 7 THE CHARGES OF CRIMINAL CONTEMPT IN THE SECOND-DEGREE IN VIOLATION OF PENAL LAW §215.50(3) AND NON-SUPPORT OF A CHILD IN THE SECOND-DEGREE IN VIOLATION OF PENAL LAW §260.05(2) FALL WITHIN THE EXCLUSIVE JURISDICTION OF THE FAMILY COURT CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 13 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT.. . . . . . . . . . . . . . . . . . . . . 1 PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . 1 JURISDICTION. . . . . . . . . . . . . . . . . . . . . . . . . 2 QUESTIONS PRESENTED.. . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . 2 THE MISDEMEANOR CHARGES.. . . . . . . . . . . . . . . . . . . 2 THE MOTION TO DISMISS.. . . . . . . . . . . . . . . . . . . . 3 DECISION. . . . . . . . . . . . . . . . . . . . . . . . . . . 4 AFFIDAVIT OF ERRORS.. . . . . . . . . . . . . . . . . . . . . 5 APPELLATE TERM DECISION.. . . . . . . . . . . . . . . . . . . 5 LEAVE TO APPEAL.. . . . . . . . . . . . . . . . . . . . . . . 6 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 7 THE CHARGES OF CRIMINAL CONTEMPT IN THE SECOND-DEGREE IN VIOLATION OF PENAL LAW §215.50(3) AND NON-SUPPORT OF A CHILD IN THE SECOND-DEGREE IN VIOLATION OF PENAL LAW §260.05(2) FALL WITHIN THE EXCLUSIVE JURISDICTION OF THE FAMILY COURT CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . 13 i TABLE OF AUTHORITIES Cases Page Columbia County Support Collection Unit v. Risley, 27 N.Y.3d 758 (2016). . . . . . . . . . . . . . . . . . 10, 12 Department of Social Services, County of Westchester on Behalf of Angela C.M. v. Douglas D., 226 A.D.2d 633 .. . . . 10 Matter of Damadeo v. Keller, 132 A.D.3d 670 (2d Dept. 2015).. 10 People v Johnson, 20 N.Y.2d 220.. . . . . . . . . . . . . . 8, 12 People v. Jones, 59 A.D.2d 617 (2d Dept. 1977). . . . . . . . . 9 People v. Nuernberger, 25 N.Y.2d 179 (1965).. . . . . . . . . . 8 People v Oliver, 75 A.D.2d 590 (2d Dept. 1980). . . . . . . . . 9 Statutes Family Court Act §114 . . . . . . . . . . . . . . . . . . . 7, 10 Family Court Act §115.. . . . . . . . . . . . . . . . . . . 7, 9 Family Court Act §411.. . . . . . . . . . . 3, 4, 5, 6, 7, 9, 10 Family Court Act §451.. . . . . . . . . . . . . . . . . . . . . 9 Family Court Act §454.. . . . . . . . . . . . . . . . . . . . 11 Family Court Act §455.. . . . . . . . . . . . . . . . . . . . 11 Penal Law §215.50.. . . . . . . . . . . . . . . . . . 1, 2, 7, 11 Penal Law Penal Law §260.05.. . . . . . . . . . . . . 1, 2, 7, 10 New York State Constitution, Article VI, Section 7. . . . . . . 7 ii PRELIMINARY STATEMENT This is an appeal from an order of the Appellate Term, Second Department, dated May 23, 2017 (A3), reversing the order of the Justice Court, Village of Goshen, dated July 15, 2015, which granted appellant’s motion to dismiss the accusatory instrument on grounds of lack of jurisdiction (A5-9). By order of this Court dated September 11, 2017 (Stein, J.), leave to appeal was granted (A2) and by subsequent order of this Court, appellant was granted leave to appeal on the original papers and typewritten briefs. PROCEDURAL HISTORY The procedural history of this proceeding is as follows: (a) The instant action was commenced by a misdemeanor complaint dated June 10, 2014 charging appellant with the offenses of criminal contempt in the second degree (Penal Law §215.50) and non-support of a child in the second degree (Penal Law §260.05)(A20- 26). (b) By order dated July 15, 2015, the Justice Court granted appellant’s motion to dismiss for lack of jurisdiction, holding that FCA section 411 vested Family Court with exclusive jurisdiction over support-related proceedings (A5-9). (c) The People appealed and by order dated May 23, 2017, the Appellate Term, Second Department reversed, for the reasons stated in People v. Moody, 53 Misc.3d 31, and denied the motion to dismiss. (A3). (d) By motion dated and served on or about May 31, 2017, 1 appellant moved for leave to appeal to this Court which motion was granted on September 11, 2017 (Stein, J.)(A2). JURISDICTION This Court has jurisdiction pursuant to CPL §§450.90 and 460.20. QUESTIONS PRESENTED 1. Do the charges of criminal contempt in the second-degree in violation of Penal Law §215.50(3) and non-support of a child in the second-degree in violation of Penal Law §260.05(2) fall within the exclusive jurisdiction of the Family Court for matters of support governed by Family Court Act Article 4? STATEMENT OF FACTS THE MISDEMEANOR CHARGES By misdemeanor complaint dated June 10, 2014, appellant, Stephen Baisley, was charged with multiple counts of criminal contempt in the second-degree in violation of Penal Law §215.50(3) and non-support of a child in the second-degree in violation of Penal Law §260.05(2). The underlying facts alleged were that appellant engaged in the intentional disobedience or resistance of a lawful process or mandate of the court; and, as a parent, guardian or other person obligated to make child support payments by an order of child support, he knowingly failed and refused without lawful excuse to provide such support when he was able to do so, or was unable to do so as the result of voluntary termination of employment or reduction of earning capacity, thereby disobeying orders of child support (A20-26). 2 THE MOTION TO DISMISS By motion dated May 15, 2015, counsel for appellant moved to dismiss the misdemeanor complaint based, inter alia, upon the insufficiency of the allegations and the exclusive jurisdiction of Family Court over support proceedings pursuant to Family Court Act §§411 and 439. Counsel for appellant argued that there could be no finding of a willful violation until there was an evidentiary hearing before a Support Magistrate which was confirmed by the Family Court with the opportunity to submit objections. The misdemeanor complaint failed to allege any Family Court proceeding which would allow for a willful violation finding and was no more than an effort to circumvent the requirements of the Family Court Act (A13-18). In opposition, the prosecution argued that child support had been ordered by the court and the charges covered June through December, 2013 and January, April and June, 2014. Records indicated that appellant failed to pay support in accordance with that order for those months (A27-28). The prosecution argued that the supporting deposition established the fact of the order, which stemmed from the registration of a Virginia Circuit Court order, and certified records from the Orange County Support Collection Unit established a failure to pay (A30). With respect to jurisdiction, the prosecution contended that appellant’s motion to dismiss on jurisdictional grounds was limited to the criminal contempt charges and that the decision not to 3 challenge the court’s jurisdiction with respect to non-payment of support was reasonable given the decision of the Legislature to enact Penal Law §260.05 (A34-35). In any event, the prosecution argued that the court should reject any contention that Family Court had exclusive jurisdiction since Family Court Act § 411 provided for exclusive jurisdiction of the Family Court for support and maintenance only under that article (A35). Similarly, section 156 of the Family Court Act would not bar criminal contempt charges since that section simply related to the applicability of the Judiciary Law in any action seeking civil or criminal contempt and did not convey exclusive jurisdiction on the Family Court (A35-36). DECISION By decision dated July 15, 2015, the court granted the motion to dismiss. It held that pursuant to Family Court Act §411, prior to the imposition of sanctions for an alleged violation of an order of support, a Family Court judge must confirm a support magistrate’s findings (FCA § 454). In the event of a willful violation, Family Court has a variety of options to choose from. It must require respondent to pay petitioner’s attorney’s fees. It may commit respondent to a term of imprisonment not exceeding six months, it can require the respondent participate in a rehabilitation program or can place the respondent on probation. In addition, the court may enter a money judgment, make an income deduction order, or require respondent to post an undertaking, among other options (A6-7). 4 In addition, the Family Court has the authority to punish for contempt where there is a violation of an order of the Family Court pursuant to FCA §156. However, the authority to punish by contempt is limited under section 156 and may not be ordered if other remedies are available under the Family Court Act (A7-8). As the Family Court has exclusive original jurisdiction over support proceedings pursuant to FCA §411, a Justice Court lacked subject matter jurisdiction and necessarily lacked jurisdiction over allegations which seek an order of contempt (A8). With respect to the charges of criminal non-payment of support, the court held that as the charges arose from the same support order and required a finding of a knowing failure or refusal to provide support without lawful excuse, these issues would fall within the exclusive jurisdiction of Family Court as well. Accordingly, the court granted the motion to dismiss (A8-9). AFFIDAVIT OF ERRORS In response to an affidavit of errors (A49-52), the court reiterated that pursuant to FCA §§ 411 and 156, the Family Court had exclusive original jurisdiction over both the criminal contempt and non-payment of support charges (A A53-56). APPELLATE TERM DECISION By order dated May 23, 2017, the Appellate Term reversed and denied the motion to dismiss for the reasons stated in People v. Moody, supra (A3). In Moody, the court held that Justice Courts are local criminal courts which possess “trial jurisdiction of all offenses other than 5 felonies” (CPL 10.30 [1]). As such, it concluded that the Justice Court had jurisdiction over charges of non-support of a child in the second degree and criminal contempt in the second degree. It further held that the exclusive original jurisdiction over proceedings for support or maintenance conferred to the Family Court pursuant to Family Court Act § 411 had “no bearing on the issue of the Justice Court's jurisdiction to prosecute criminal charges” LEAVE TO APPEAL By order dated September 11, 2017 (Hon. Leslie E. Stein), leave to appeal to this Court was granted pursuant to CPL §460.20 (A2). 6 ARGUMENT THE CHARGES OF CRIMINAL CONTEMPT IN THE SECOND-DEGREE IN VIOLATION OF PENAL LAW §215.50(3) AND NON-SUPPORT OF A CHILD IN THE SECOND-DEGREE IN VIOLATION OF PENAL LAW §260.05(2) FALL WITHIN THE EXCLUSIVE JURISDICTION OF THE FAMILY COURT Pursuant to Family Court Act (“FCA”) §§115 and 411, the Family Court has exclusive original jurisdiction over proceedings for support or maintenance under Article 4. FCA §114 provides that “exclusive original jurisdiction” means that the proceedings over which the Family Court is given such jurisdiction must be originated in the family court in the manner prescribed by this act. Section 114 continues that the grant of exclusive jurisdiction would not limit or impair the jurisdiction of the Supreme Court as set forth in section seven of article six of the Constitution of the State of New York. As set forth in the Practice Commentaries thereto, the import of this provision is to ensure that “the Supreme Court maintains constitutionally guaranteed concurrent jurisdiction over any matter within the jurisdiction of the Family Court”. Section 114 has no other inroads into Family Court’s exclusive jurisdiction. FCA §115(a)(ii) provides that Family Court has exclusive original jurisdiction over support proceedings as set forth in Article 4. Subsection (e) provides for concurrent jurisdiction with Criminal Court for family offense proceedings, so the Legislature had no problem distinguishing between matters in which jurisdiction in Family Court is exclusive and matters in which jurisdiction is concurrent with another court. It did not provide for concurrent jurisdiction of the Criminal Courts for matters of support. 7 Thus, Justice Court lacks jurisdiction over “support proceedings as set forth in article four”. Decisions addressing the exclusive jurisdiction of the Family Court have uniformly concluded that any proceeding within the scope of the exclusive jurisdiction must be commenced in Family Court. In People v Johnson, 20 N.Y.2d 220, this Court noted that when Family Court was first created, it was given jurisdiction over family offenses, to allow the court to deal with these issues civilly rather than criminally. It held, In short, then, the Family Court has jurisdiction to deal,in the first instance, with family offenses, including any complaint of assault, felonious or simple, ‘between spouses or between parent and child or between members of the same family’ (N.Y.Const., art. VI, s 13, subd. b). Plainly expressing its design that the Family Court have priority of examination into family offenses, the Legislature has provided a procedure both for enforcement of that priority and for surrender of the court's jurisdiction where appropriate. That procedure was mandatory here. Upon the defendant's motion, the County Court should have transferred the matter to the Family Court to enable that tribunal to determine, initially, whether it should itself deal with the spouses before it or return the case to the criminal court. In People v. Nuernberger, 25 N.Y.2d 179 (1965), this Court reiterated, The statute is explicit in saying that the Family Court ‘has exclusive original jurisdiction’ over ‘any proceeding’ concerning ‘acts which would constitute * * * an assault * * * between parent and child’ (Family Ct. Act, s 812; cf. N.Y.Const., art. VI, s 13, subd. B). *** If there is to be a prosecution for an assault within the enumerated family group of any degree or for any purpose, the prosecution must begin in the Family Court. (See, e.g., People v. Fowlkes, 24 N.Y.2d 274, 300 N.Y.S.2d 89, 248 N.E.2d 8.) In People v. Williams, 24 N.Y.2d 274, 300 N.Y.S.2d 89, defendant pleaded guilty to attempted assault in the second degree, where the victim was his wife. In light of the statute which gave Family Court 8 exclusive original jurisdiction over intra-family assaults, the prosecution conceded that there was no jurisdiction in the Supreme Court. As such, if a proceeding to impose sanctions for (a) the non- payment of court-ordered support or (b) the non-support of a child is within the scope of a “support proceeding, as set forth in article four” (FCA §115(a)(ii)) or a proceeding for support or maintenance under article four (FCA §411), Justice Court lacks jurisdiction to proceed. When interpreting the scope of exclusive jurisdiction, courts have been expansive to ensure that the purpose of the statute is fulfilled. Thus, in People v Oliver, 75 A.D.2d 590 (2d Dept. 1980), the court held that where the crimes of coercion and criminal possession of a weapon were inextricably related to a reckless endangerment charge, they were all within the exclusive jurisdiction of the Family Court. See also People v. Jones, 59 A.D.2d 617 (2d Dept. 1977), holding that as attempted murder and assault charges arose out of the same transaction, and the assault charge had to begin in Family Court, proper procedure required that the entire case be referred there. In the present case, as the lower court held, FCA §§115 and 411 explicitly give the Family Court exclusive original jurisdiction over support-related proceedings under Article 4. As noted above, section 114 provides that exclusive jurisdiction requires such matters to be commenced in Family Court. Pursuant to FCA §451, Family Court has “continuing jurisdiction over any support proceeding brought under this article until its 9 judgment is completely satisfied and may modify, set aside or vacate any order issued in the course of the proceeding, provided, however, that the modification, set aside or vacatur shall not reduce or annul child support arrears accrued prior to the making of an application pursuant to this section”. In Columbia County Support Collection Unit v. Risley, 27 N.Y.3d 758 (2016), this Court noted the continuing plenary and supervisory jurisdiction of Family Court over a support proceeding until its judgment is completely satisfied. See also Matter of Damadeo v. Keller, 132 A.D.3d 670 (2d Dept. 2015), cited therein; and Department of Social Services, County of Westchester on Behalf of Angela C.M. v. Douglas D., 226 A.D.2d 633 (2d Dept. 1996), noting Family Court’s “continuing jurisdiction over the support proceeding until its judgment was completely satisfied”. Thus, even after the award of support is rendered, Family Court retains “plenary and supervisory jurisdiction” over the support- related issues. Penal Law §260.05 makes it a Class A misdemeanor for a parent obligated to make child support payments pursuant to an order of the court to knowingly fail or refuse without lawful excuse to provide support for such child if able to do so or if the inability to do so stemmed from voluntarily terminating employment or failing to diligently seek employment although employable. If criminal court were permitted to proceed, it would divest Family Court of its continuing plenary and supervisory jurisdiction and require determinations uniquely suited to the Family Court- whether an 10 obligor parent had a lawful excuse for nonpayment and if he/she were able to pay support, wrongfully terminated employment, reduced earning capacity or failed to diligently seek employment. These are clearly support determinations and the Family Court has been entrusted with exclusive jurisdiction to make those determinations. The same holds true for the charges under Penal Law §215.50(3). That section provides that intentional disobedience or resistance to the lawful process or other mandate of the court constitutes criminal contempt in the second degree, a Class A misdemeanor. However, section §215.50(3) has none of the less draconian alternatives which are found in FCA §§ 454 and 455. Section 454 also provides the Family Court with authority to hold an obligor in contempt, but provides the Family Court with a far broader range of alternative remedies to address the issue and section 455 allows the court to suspend an order of commitment. Moreover, unlike the unyielding provisions of Penal Law §215.50, pursuant to FCA §455, a debtor spouse may assert financial inability as a defense and the court has the ability to modify the judgment of support based upon the circumstances shown. Allowing the Criminal Court to proceed in disregard of the Family Court’s exclusive jurisdiction undermines the purpose and intent of the statutes and places the support determination in the hands of a judge with less familiarity with the issues and with less remedies available. 11 See Columbia County Support Collection Unit v. Risley, supra, in which this Court noted the protections built into the Family Court Act to prevent the “lengthy incarceration of those simply unable to pay”, protections unavailable under section 215.50. The purpose of granting Family Court exclusive jurisdiction is to allow judges far more familiar with the nuances of issues of support to decide whether there has been a willful non-payment and then apply a range of alternative remedies in the first instance. The decision in People v. Johnson, supra, in which the prosecution also argued for jurisdiction over matters reserved in the first instance for the Family Court applies here as well. Those who would destroy the legal purposes and the social objects of the Family Court Act seek narrow interpretations to accomplish their end. They assume that Family Court judges will not act judiciously in determining when a given case should remain in Family Court and when it should be transferred to the criminal courts. They prefer to have the District Attorney make these decisions. Under their construction of the law, it would be within the province of an ambitious or over-zealous District Attorney to destroy the beneficial aspects of the act within his own county. In substituting the judgment of a District Attorney for the determination of a Family Court judge they would thus abnegate that portion of the Family Court Act which makes the determination a judicial one. The same holds true here and the clear mandate of the statutes must be followed. The Justice Court correctly concluded that, as in the above cases, it lacked jurisdiction. The decision of the Justice Court should be reinstated and the informations dismissed. 12 CONCLUSION FOR THE FOREGOING REASONS, THE ORDER OF THE APPELLATE TERM SHOULD BE REVERSED AND THE ACCUSATORY INSTRUMENTS DISMISSED Dated: December 12, 2017 Respectfully submitted, RICHARD L. HERZFELD, P.C. Attorneys for Appellant P. <1CHARD LT" HfiR, ;DBY: 112 Madison Avenue 8th Floor New York, New York (212) 818-9019 10016 13 CERTIFICATE OF COMPLIANCE The foregoing brief was prepared on a computer. A mono spaced typeface was used as follows: Name of Typeface: Courier Point Size: 12 Line Spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 2,918. DB