Three Recent Domestic Violence Decisions That Every New York Divorce Lawyer Should Have At Their Fingertips

Getting an Order of Protection in New York based on Stalking and Harassment

New York domestic Violence Case LawIn New York, a petitioner is entitled to a final order of protection where it shown that the respondent committed one or more of the crimes defined in the penal law that are said to constitute a “family offense” within the meaning of the Family Court Act. Unlike a criminal prosecution, where each element of the crime must be proved beyond a reasonable doubt, a petitioner alleging the commission of a family offense to obtain an order of protection need only prove the allegation by a preponderance of the evidence. The following three decisions are helpful because they provide clear guidance on how to adequately allege and prove the offenses of harassment, stalking and menacing – offenses upon which many domestic violence petitions are premised.

HARASSING COMMUNICATIONS ARE A VALID BASIS FOR AN ORDER OF PROTECTION – People v. Seitz, 44 Misc.3d 1226(A) (N.Y. City Crim. Ct. 2014):

The Seitz decision shows that Family and Criminal Court domestic violence proceedings based on verbal threats and harassment are still viable, notwithstanding the New York Court of Appeals decision in People v. Golb, 23 N.Y.3d 455, which held that New York’s aggravated harassment statute unconstitutionally regulated speech based on its content.

The Court of Appeals issued its decision in Golb on May 13, 2014. At that time, it was feared that the holding would make it more difficult for victims of domestic violence to obtain orders of protection because allegations of verbal threats and harassment play a prominent role in many domestic violence proceedings. In Seitz, the Criminal Court not only put those fears to rest, but gave a road map for domestic violence victims and their lawyers. Distilled to its core, the Seitz decision states that harassing and unwanted communications could still form the basis of criminal prosecutions and domestic violence proceedings based on harassment in the second degree (Penal Law § 240.26), and stalking. To set forth a prima facie case, victims and their lawyers should focus on the repetitive nature of the abusers’ communications, and the fact that communications (for example, text messages, emails or phone calls) continued after the victim told the abuser to stop communicating. In Seitz, the Criminal Court denied the defendant’s motion to dismiss, finding that the allegations against him amply satisfied the prerequisites for harassment in the second degree.

“COURSE OF CONDUCT” IS EASIER TO ESTABLISH THAN YOU MIGHT ASSUME – People v. Kitsikopoulos, 47 Misc.3d 1220(A) (N.Y. City Crim. Ct. 2015):

The Kitsikopoulos decision helps domestic violence victims because it shows that it is much easier to establish “course of conduct” (an element applicable to menacing in the second degree, stalking, and harassment in the first degree) than many lawyers realize. In Kitsikopoulos, the defendant was alleged to have made five separate verbal threats over the span of one and half years. These threats all stemmed from the defendants’ alleged displeasure with that the complainant permitted her new boyfriend to have contact with the parties’ children.

The court in Kitsikopoulos also held that the accusatory instrument satisfied the “no legitimate purpose” element of stalking. The court held that, by definition, a communication that “causes material harm to the mental or emotional health” of a victim or is likely to cause the victim to fear for her safety is one that serves no legitimate purpose.

PRIOR MISCONDUCT ADDS A CRUCIAL GLOSS TO RECENT BEHAVIOR
Weiner v. Weiner, 27 Misc.3d 1111, 1118 (Sup. Ct. NY County 2010).

In Weiner, Justice Matthew F. Cooper of the New York County Supreme Court provides an insightful discussion of why the defendant’s seemingly innocuous action in renting a house constituted an unacceptable intrusion into his ex-wife’s life. To reach this conclusion, Justice Cooper describes the factual history of the parties’ relationship and the procedural history of their divorce action. According to the decision, defendant rented a vacation home in a sparsely populated area that was situated adjacent to his former wife’s home. He did this “on the very same day” that a prior order of protection expired. The decision notes that although orders of protection may not be based on conduct that occurred in the distant past, such conduct may dramatically alter the significance and effect of more recent actions. In Weiner, Justice Cooper notes that the defendant’s positioning of himself “on the edge of his ex-wife’s back-lawn in a wooded and relatively sparsely populated rural area” was only the “latest chapter” of an “extended and ongoing effort” by defendant to inflict pain on his ex-wife.