ABKLaw IN THE NEWS: HON. BARRY KAMINS (Ret.) New York Law Journal / Law.com: “The New ‘Crawford’ Hearing: What Will It Look Like?”

#ABKLaw IN THE NEWS: HON. BARRY KAMINS (Ret.) New York Law Journal / Law.com: "The New ‘Crawford' Hearing: What Will It Look Like?“”

In his Criminal Law and Procedure column, Barry Kamins discusses how the practice of issuing temporary orders of protection without any judicial examination regarding the deprivation of rights has changed following the decision in Crawford v. Ally.

For over 40 years, it has been commonplace for a court to issue a temporary order of protection (TOP) at an arraignment to protect a family offense complainant from abuse by persons closely associated as members of the same family or household. CPL 530.12. Such temporary orders of protection have been granted merely upon the request of the prosecutor and based upon the charges in the accusatory instrument. When a prosecutor requests a temporary order of protection that excludes a defendant from the home, the statute is silent on what, if any, procedure should be followed.

For the first time, an appellate court has held that, when a defendant presents a court with information showing that there may be an “immediate and significant deprivation of a substantial personal or property interest” from the issuance of a temporary order of protection, the court must conduct a prompt evidentiary hearing to ascertain the facts necessary before deciding whether to issue a temporary order of protection. Matter of Crawford v. Ally, 2021 N.Y. Slip Op 04082 (1st Dept., June 24, 2021).

While, on occasion, a few lower courts had recognized that, the deprivation of a person’s valuable property right in a lease or tenancy interest by issuing a temporary order of protection triggers due process considerations, see, e.g., People v. Forman, 145 Misc.2d 115 (Crim. Ct. New York County 1989); Matter of Fletcher, 2009 N.Y. Slip Op 32859 (Sup. Ct. Nassau County 2009), the issuance of similar temporary orders of protection at arraignments without any extended judicial examination became the norm in the criminal courts. That has now changed.

Shamika Crawford was arrested for assault in the third degree and related charges, based on the complaint of her partner, Keivian Mayers, that she and two men assaulted him. The incident allegedly occurred in an apartment in the Bronx.

At Crawford’s arraignment, the People consented to her release but the court issued a temporary order of protection prohibiting her from contacting Mayers, denied her request for a limited temporary order of protection, and prohibited her from entering Mayers’ home, listed as the address where the alleged incident occurred, except to retrieve personal items the following day.

During argument at the arraignment, defense counsel stated that the address listed on the temporary order of protection was, in fact, Crawford’s apartment; that she was the lessee of the residence; that she resided there with her young children, for whom she was the primary caregiver; and that barring her from the residence would result in barring the children as well. The People opposed a limited temporary order of protection, and the court declined to issue one but adjourned the case for five days “for that issue to be litigated.”

On the adjourned date, the People asked that the temporary order of protection remain in effect based on both the “nature of the charges” and Mayers’ visible physical injuries when he was interviewed on the date of Crawford’s arrest. The prosecutor noted that both Crawford and Mayers resided in the apartment; this was based on information listed in approximately seventeen prior domestic incident reports filed by Crawford against Mayers.

Defense counsel renewed the request for a limited temporary order of protection, arguing that: The effect of the temporary order of protection was to separate her from her two children, that Mayers refused to leave the residence even though his name was not on the lease, and the temporary order of protection created the risk that Crawford would lose her apartment.

Although defense counsel requested a short adjournment in order to conduct a due process hearing to require the prosecutor to show that the temporary order of protection was actually needed, the court adjourned the case for six weeks with the full temporary order of protection in effect until that date.

Two weeks later, however, defense counsel moved the court for a modification of the temporary order of protection, attaching a copy of the New York City Housing Authority lease. In denying the motion, the court held that there was “no change in circumstances,” and issued a new temporary of protection.

At that point, Crawford’s counsel sought a writ of mandamus in Bronx Supreme Court, to direct the Bronx Criminal Court to hold an evidentiary hearing concerning the appropriateness and scope of the temporary order of protection issued in her case.

While the writ of mandamus was pending in Supreme Court, another Criminal Court judge modified the temporary order of protection, after reviewing the evidence that defense counsel had presented throughout the course of the case. The court removed the condition that Crawford stay away from Mayers’ home.

Two months later, the People moved to dismiss the case and, based upon the dismissal, the Supreme Court dismissed the petition for a writ of mandamus as moot.

In reversing, the Appellate Division, First Department, held that, while the writ proceeding was moot as to Crawford, the issues raised fell within the exception to the mootness doctrine because the writ implicated substantial issues that will likely reoccur elsewhere and that Criminal Court should have held a hearing on those issues. See Matter of Hearst v. Clyne, 50 N.Y.2d 707 (1980).

While the Appellate Division held that an evidentiary hearing should be conducted, it also held that it “need not articulate the precise form of the evidentiary hearing required.” 2021 N.Y. Slip Op 04082 at 7. The court did state, however, that the hearing should be “prompt” and “in a manner that enables the judges to ascertain the facts necessary to decide whether or not the temporary order of protection should be issued.” Id. at 7.

After Crawford was decided, lower courts have wrestled with a number of issues, in attempting to adhere to the ruling: (1) what information must be presented to trigger a hearing; (2) when is an in-person hearing with testimony required as opposed to making a decision based solely on documentary evidence; (3) what is the meaning of “prompt”; (4) can a hearing be conducted electronically; and (5) what is the burden of proof at the hearing? It was reported recently that some judges have given Crawford a very narrow interpretation. Sam Mellins, “NY Judges Lock the Accused Out of Their HomeSkirting Review Required by Landmark Ruling, Critics Charge,” The City (July 23, 2021).

In order to obtain a hearing, a defendant must provide the court with a substantial personal or property interest that may be negated by the issuance of a temporary order of protection. It has been held, for example, that a parent’s separation from his or her child’s care is a substantial personal or liberty interest. See Matter of F.W., 183 A.D.3d 276 (1st Dept. 2020).

The argument has also been made that pre-trial orders of protection issued in Criminal Court affect personal interests by triggering significant immigration consequences. On appeal, counsel for amici curiae argued that orders of protection are automatically shared with immigration authorities upon issuance, potentially causing immigration enforcement. Both active and expired orders may result in a negative determination on an immigration application for relief from deportation.

Finally, “pre-trial orders are frequently viewed by immigration judges as independent evidence of dangerousness, causing people to be denied bond and remain in civil immigration detention.” Appellate Brief, Counsel for Amici Curiae at 24.

Regarding property interests, the facts in Crawford themselves—Crawford was barred from her own home for three months—provide a good example of how orders of protections can have a negative impact on fundamental private property interests. As appellate counsel argued, the temporary order of protection deprived Ms. Crawford of her documented interest in accessing, possessing, occupying and excluding unwanted guests from her own apartment. See U.S. v. James Daniel Good Real Prop., 510 U.S. 43, 53-54 (1993) (holding that the “right to maintain control over [one’s] home … is a private interest of historic and continuing importance.” Brief for appellant at 31.

A second issue, unresolved by Crawford, is whether courts must conduct an in-person testimonial hearing. In making the determination, courts will need to balance the interests of the People in protecting victims of domestic abuse and in conserving resources against the defendant’s right to procedural due process and an opportunity to be heard “in a meaningful manner.” Matthews v. Eldridge, 424 U.S. 219, at 333 (1976).

In granting an evidentiary hearing, one court held that “[t]he risk of error in determining whether a temporary order of protection excluding a defendant from the home should be issued is clearly greater when the determination is based only on the documents and arguments of counsel available to the court at arraignment rather than on the testimony of live witnesses subject to cross-examination.” People v. Forman, 145 Misc.2d 115 at 128 (Crim. Ct. New York County 1989). The court went on to explain that live testimony would better assist a court in making critical assessments of the complainant’s credibility, the extent of any injuries suffered and the defendant’s history of behavior toward the complainant.

Thus, an in-person testimonial hearing would appear to satisfy the Supreme Court’s requirement that a hearing must provide a “real test” of an application to deprive an individual of a property right. Fuentes v. Shevin, 407 U.S. 67, 97 (1972). The court went further to explain that “[p]rocedual due process is not intended to promote efficiency or accommodate all possible interests: it is intended to protect the particular interests of the person whose possessions are about to be taken.” Id at fn. 22; see also Sniadach v. Family Finance of Bay View, 395 U.S. 337 (1969).

Should a court be concerned that requiring a complainant to testify at a hearing will place an undue burden on victims of domestic violence, a court could receive the “complainant’s statement through the hearsay testimony of a police officer who interviewed the complainant and [permit] the defense to cross-examine the officer.” Appellant’s brief at 36. Indeed, hearsay testimony is permitted at suppression hearings.

Crawford held that the evidentiary hearing be conducted in a “prompt” manner. While the court declined to impose a specific time frame as to what constitutes a “prompt” judicial review, it has given some guidance on that term in other contexts. In Matter of F.W., 183 A.D.3d 276 (1st Dept. 2020), where a child had been removed from a parent’s physical custody, the court held that a “prompt” judicial review should be conducted. In discussing the time frame, the court held that “we rely on the general precept that a post-deprivation hearing ‘should be measured in hours and days, not weeks and months.’” (quoting Egervary v. Rooney, 80 F. Supp. 2d 491, 503 (E.D. Pa 2000), rev’d on other grounds sub nom. Egervary v. Young, 366 F.3d 282 (3d Cir. 2004)).

Should a court order an evidentiary hearing, the hearing would need to be conducted in court rather than electronically. Last year at the height of the pandemic, CPL 180.65 (eff. 7/17/20) codified, as law, the provision of Executive Order 202.28 that authorized remote appearance at preliminary hearings on felony complaints. On June 24, 2021, however, Gov. Andrew Cuomo rescinded all Executive Orders and the law reverted to CPL 182.20 which prohibits any hearing from being conducted electronically.

Crawford does not define the burden of proof that must be met at an evidentiary hearing. Clearly the burden will be on the prosecutor who is seeking the imposition of a temporary order of protection. At a minimum, the burden should be a preponderance of the evidence. Could the burden be even greater, e.g., by clear and convincing evidence?

Interestingly, a bill has been introduced into the Legislature, requiring prosecutors to show, by clear and convincing evidence, “that the temporary order of protection is necessary to protect such designated witness or complainant from intimidation or injury.” S.2382-A, A-4558-A. It has not been uncommon for prosecutors to be put to this higher burden at other hearings in criminal cases. See, e.g., People v. Geraci, 85 N.Y.2d 359 (1995); People v. Ballot, 20 N.Y.2d 600 (1967).

It is clear that until another Appellate Division or the Court of Appeals rules otherwise, a defendant who is the subject of a temporary order of protection and, as a result, is potentially deprived of a substantial personal or property interest, shall be afforded a prompt evidentiary hearing.

Barry Kamins, a partner at Aidala, Bertuna & Kamins and author of New York Search and Seizure (Lexis/Nexis 2020), is a former New York Supreme Court Judge.

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