Ever since Galina Komar was killed in February 1996 by her ex-boyfriend after he was released on bail
, New York Criminal Courts have struggled with how to balance the rights of the accused while protecting the complainant/victims. In the Komar case, Judge Lorin Duckman of Brooklyn Criminal Court was widely criticized after Komar’s death for lowering her ex-boyfriend’s bail, allowing him to post bail and get out of jail. The irony is that Judge Duckman did the right thing at the time. The prosecution was continuously not ready for trial and such a “change in circumstances” was a proper and lawful basis for the reduction of bail. Judge Duckman was subsequently removed from the bench.

After Komar’s unfortunate death, there was understandable public outrage that the New York criminal court system did not do more to protect victims of domestic violence. In response, the NYPD instituted a new program, which among other things, installed a dedicated “domestic violence” police officer in each precinct in New York. And New York criminal court judges began issuing “Full” Orders of Protection in every criminal case where the allegations in the criminal complaint include any assault, menacing, or harassment charges.

But some could argue that in the quest to do more to protect the complainants in domestic violence cases, New York criminal courts have gone too far. “Full” Orders of Protection are issued summarily, often without any information beyond the bare allegations contained in the criminal complaint. These “Full” Orders of Protection have significant power. They prevent the accused from going anywhere near where the complainant might be, including the complainant’s home or workplace.

In domestic violence cases where a husband is arrested and the wife is the complainant, the issuance of the Full Order of Protection will prevent him from going home and force him to choose between staying in a hotel while the criminal case is resolved (which can sometimes take years) or going home and facing the prospect of being arrested again for violating the Order Of Protection. This situation arises regardless of whether there is a marital relationship. For instance, where a girlfriend moves into the boyfriend’s apartment, the issuance of an Order of Protection will prevent him from going to his own home and allow the girlfriend, regardless of whether she is on the lease, to continue living in the home.

This is the difficult dilemma that New York criminal courts face in domestic violence cases. On one hand, the court’s primary goal is to ensure the safety of those who are abused or threatened with domestic violence. However, on the other hand, a person’s home is a sacred place, and the constitution demands that a person be afforded due process if the State is going to prevent him from returning home.

New York’s Criminal Courts’ power to issue an Order of Protection arises under New York CPL § 530.12 as a condition of bail or release without bail. In New York, there are two forms of an Order of Protection: A “Full” Order of Protection, which is a full “stay away” order, and a “Limited” Order of Protection, which is not a “stay away” order but orders the accused not to commit any new crimes against the complainant, or risk being charged with violating the Order of Protection in addition to any new charges that may be filed. A Full Order of Protection, in addition to being a “stay away” order, also forbids the accused from making any contact with the victim, including, but not limited to, any phone calls, text messages, emails, or even contacting the person through a mutual acquaintance.

As powerful and sensible as a Full Order of Protection may seem, in circumstances where the victim and the accused live together or share property, courts face a very serious constitutional dilemma. By ordering a person to stay away from the victim, the court may also be ordering the person to stay away from his or her home, thereby restricting his or her liberty and property interests, which without satisfying the requirements of due process, would be unconstitutional.

Such a scenario came before the New York City Criminal Court in People v. Forman, 145 Misc.2d 115 (NY 1989). The defendant, Milton Forman, and the complainant were husband and wife, but at the time of his arrest, were separated and living in separate apartments within the same building. Forman was arrested and charged with Assault and Harassment. At his arraignment, the court released Forman on his own recognizance but also issued an Order of Protection, which direct him, inter alia, “to stay away from the home, school, business or place of employment of [the complainant].” Id., at 117.

Less than a month later, Forman sought to have the Order of Protection changed so that he could access one of the apartments in the building. When the court denied his application, Forman moved to challenge both the sufficiency of the evidence against him, and the constitutionality of the Order of Protection, as a violation of Due Process.

First, the court found that the evidence against Forman was sufficient to justify the issuance of the Order of Protection. Then, the court engaged in a detailed discussion of the procedures and criteria for the issuance of such Orders. Essentially, the court approached the Order of Protection problem by a balancing of the State’s interests in issuing the order, against the defendant’s property interests. The court called domestic violence a “social scourge of the first order” and found that any efforts in the prevention of such crimes would be “severely undermined” if a defendant could immediately reach back out to the victim and further harm or intimidate them. Id., at 126-127. On the other hand, the court called the defendant’s property interest “a substantial one.” The court even goes as far as to say that there is an obvious risk that some temporary orders of protection will be erroneously issued, but the court would rather err on the side of over protection, even though an innocent person may be deprived of their property. Id., at 128

This balancing approach, though favorable to the victim, does not altogether deprive the accused of any means to be heard. At arraignment, before a judge can issue an Order of Protection, he or she must determine whether there is sufficient probable cause to justify the issuance. This determination almost always leads to the issuance of the Order of Protection because a judge will often consider the arrest to be sufficient probable cause. Further, because any adversary procedures such as testimony or cross-examination “would add significant delay to the already existing backlog” in the judiciary system, the court will often not allow such proceedings until a later, separate hearing. Id., at 129.

The process of a Forman Hearing is similar to a trial. Both parties have an opportunity to present and cross-examine witnesses in order to assess their credibility and to assess the validity of each account of the events leading to the arrest. While the court does not specify an exact time frame for when a Forman Hearing should occur, it does say that “[t]he requirements of due process do entitle [the] defendant to a prompt evidentiary hearing after the temporary order of protection excluding [the] defendant from the home has been issued.” Id. Normally, because of the constitutional issues at stake, a judge will set the date for a Forman Hearing relatively quickly.

At the hearing, in addition to assessing the credibility of the involved parties, the court considers various factors included in CPL § 530.12 (1) (a) to determine whether the Order of Protection was properly issued. These factors include prior incidents of abuse, prior Orders of Protection and cooperation with them, past or present injury, drug or alcohol abuse, access to weapons, and “‘whether the [Order of Protection] is likely to achieve its purpose in the absence of . . . a condition’ excluding the defendant from the home” Id., at 132.

After the hearing, if a judge determines that there is sufficient “danger of injury or intimidation” to the complainant, the Order will be upheld, reissued, or extended. A violation of an Order of Protection can result in criminal contempt charges, revocation of an order for release on recognizance, revocation of a conditional discharge, or imprisonment.

There are ways to persuade the court not to issue a Full Order of Protection, even over the objection of the People, but the basis for objecting to the issuance of an Order of Protection should be made as soon as possible, preferably at the criminal court arraignment. If the Judge issues the Full Order of Protection at the criminal court arraignment, the able lawyer should demand a Forman Hearing at the arraignment hearing for a date as soon as possible. At the hearing, the People will have the burden of showing why the Order of Protection should remain in effect. The attorney for the accused can attack the State’s evidence and present his or her own evidence as to why the Order of Protection should not be issued.

Kevin Kehrli, JD Candidate 2014, substantially contributed to this Article.