People v. Bostic

10 Misc. 3d 775
CourtNew York District Court
DecidedNovember 30, 2005
StatusPublished

This text of 10 Misc. 3d 775 (People v. Bostic) is published on Counsel Stack Legal Research, covering New York District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bostic, 10 Misc. 3d 775 (N.Y. Super. Ct. 2005).

Opinion

OPINION OF THE COURT

Patricia M. Filiberto, J.

[776]*776The defendant was originally charged by felony complaint with robbery in the second degree (Penal Law § 160.10 [1]). At the time of arraignment on the felony complaint, a nonfamily temporary “stay away” order of protection was issued. Thereafter, pursuant to a negotiated agreement with the District Attorney’s Office the charge was reduced pursuant to GPL 180.50 to petit larceny and the defendant entered a plea of guilty thereto. Sentencing was adjourned for a period of one year; the defendant was placed on interim probation; and a new temporary “stay away” order of protection was issued. Both the original temporary order of protection (T.O.R) and the subsequent T.O.P were on the approved forms and neither contained any information regarding the victim/witness’ home, school, business or place of employment address. At the conclusion of the interim probation period the case was placed back on the calendar and the defendant applied to withdraw her guilty plea. The People joined in the application and it was granted. Pursuant to the original plea agreement, the People moved to reduce the misdemeanor charge to disorderly conduct (Penal Law § 240.20 [7]) and the defendant entered a guilty plea to the violation with a negotiated sentence of a conditional discharge and a “stay away” permanent order of protection. At the time of sentencing, defense counsel requested that the order of protection contain the specific addresses from which the defendant was to stay away. Counsel argued that in light of the fact that the defendant and the victim were strangers, the failure to include this specific information would violate the defendant’s due process rights and would render the order of protection invalid. The parties were given an opportunity to submit any authority they deemed relevant on this issue. The court is now in possession of both parties’ submissions.

Research has disclosed no New York appellate authority on the question of whether due process requires specific addresses be included in a stay away order of protection. Some local courts that have addressed the issue have held that the failure to include such information is a violation of due process because without such information the order is intolerably vague (see e.g. People v Freeman, 2001 NY Slip Op 40329[U] [Watertown City Ct, Nov. 2, 2001, Harberson, J.]).

The court notes that the defendant does not question the constitutionality of any specific statute herein; however, the court does recognize that an order issued pursuant to a valid statute that forms the basis of a subsequent criminal prosecution also must satisfy defendant’s due process rights under the [777]*777state and federal constitutions. The discreet issue raised herein is whether a nonfamily order of protection violates the defendant’s due process right to notice by not including the current address of the victim/witness’ home, school, business, or place of employment.

A determination of due process begins with the two-prong test set forth in People v Bright (71 NY2d 376 [1988]). The Court held therein that a statute must provide sufficient notice of what conduct is prohibited. In addition, the statute must not be written in such a manner as to permit or encourage arbitrary or discriminatory enforcement. However, as noted in People v First Meridian Planning Corp. (86 NY2d 608 [1995]), the vagueness doctrine does not judge statutes in the abstract, but rather in the “animating context of well-defined usage . . . and . . . court construction which determines its meaning” (People v First Meridian Planning, supra at 622, quoting Beauharnais v Illinois, 343 US 250, 253 [1952]).

In applying the Bright due process test to an order of protection, the court must balance the defendant’s due process rights with the purpose of the order — to protect the person in whose favor it is written. Therefore, as a foundation for the due process right to notice, the defendant must be informed, either orally or in writing, of the contents of the order and the conduct that it prohibits (People v McCowan, 85 NY2d 985, 987 [1995]).

On its face CPL 530.13 provides that orders of protection are explicitly for the protection of victims/witnesses. While an order may include a directive to stay away from the home, school, business, or place of employment of the victim/witness, there is no provision in the statute which authorizes the issuance of an order of protection in favor of a place. (See, CPL 530.13 [1] [a]; People v Smith, 4 Misc 3d 909, 911 [Crim Ct, NY County 2004].) The relevant legislative history reflects a clear intent to protect only people (People v Smith, supra at 911-912). Thus, in this court’s opinion, the plain language of the uniform form order of protection satisfies the first prong of the Bright due process test. The order provides clear notice to the defendant of the conduct that is prohibited. The order of protection requires the defendant to stay away from the protected victim/witness, wherever that person may be. In addition to requiring the defendant to stay away from the person of the victim/witness, the court may order the defendant to stay away from those locations that experience and common sense dictate the victim/witness is likely to be found on a regular and systematic basis, i.e., the home, [778]*778school, business, or place of employment of the victim/witness (see Crim Form 2 [Oct. 2002]). However, incorporated into each of those separate mandates is the inherent protective limitation that the defendant does not violate the order unless he/she is aware that a particular location is one that the order includes as a place that the victim/witness is likely to be. It is this requirement of knowledge which transforms an innocent act into an act which may be criminal. It is also this inherent requirement of knowledge that adequately satisfies the defendant’s due process right to notice of what conduct is prohibited, i.e., stay away from those places the defendant knows are the places the victim/witness is likely to be — his/her home, school, business, or place of employment. A defendant who gains knowledge of a victim/witness’ current or subsequent home, school, business, or place of employment address and knowingly appears at such location is in violation of the order.

Viewed in this light, the inclusion in the order of the actual addresses of these places is not required. It adds no permanent due process protection for the defendant while confusing the function of the order — to protect a particular person, not the current or subsequent location of his/her home, school, business or place of employment. Also, the inclusion of specific addresses in the order of protection overlooks a significant reality — people move frequently from homes, schools, businesses, and places of employment. The inclusion of current addresses in the order does not provide the intended due process protection to the defendant should the victim/witness move from one or more of the listed addresses, and it does not fulfill the intended purpose of the order to protect the victim/witness for the duration of the order. Moreover, to require the victim/witness to seek an amended order each time he/she moves, would require service upon the defendant for the amended order to be valid. This may be difficult, if not impossible, especially after the case is concluded, if the defendant has moved without providing a forwarding address.

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Related

Beauharnais v. Illinois
343 U.S. 250 (Supreme Court, 1952)
People v. McCowan
652 N.E.2d 909 (New York Court of Appeals, 1995)
People v. First Meridian Planning Corp.
658 N.E.2d 1017 (New York Court of Appeals, 1995)
People v. Bright
520 N.E.2d 1355 (New York Court of Appeals, 1988)
People v. Smith
4 Misc. 3d 909 (Criminal Court of the City of New York, 2004)

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Bluebook (online)
10 Misc. 3d 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bostic-nydistct-2005.