PO 235 v. D.M., Respondent. (2024)

The following papers were read and considered herein:

Application for Renewal of an Extreme Risk Protection Order with Exhibits 1

Rockland County Sheriff Investigation Report 2

Hearing Transcript 3

Hearing Exhibits 1 and 2 of Petitioner 4-5

Hearing Exhibit A of Respondent 6

Upon such reading and consideration, the Application is disposed as follows:

BACKGROUND

Police Officer McManus, Shield No. 235, of the Haverstraw Police Department ("Petitioner") filed an Application for the Renewal of an Extreme Risk Protection Order ("ERPO"), dated September 12, 2024, against D.M. ("Respondent")("Application"). At issue herein is a request to renew an ERPO entered by this Court on September 22, 2023 ("Underlying Order"). The Application was filed prior to the expiration of the Underlying Order and within the requisite timeframe.

Petitioner alleges, upon information and belief, that Respondent "continues to be likely to engage in conduct that would result in serious harm to self or others as defined in MHL § 9.39(a) and [ ] petitions the Court to renew the [ERPO] against the [R]espondent based upon the facts and circumstances set forth in the [Application] justifying the issuance of [a renewed ERPO] ." Petitioner alleges that Respondent has engaged in a "[t]hreat or act of violence or use of physical force directed toward self [or another]." More specifically, Petitioner alleges in his Application that, "[Petitioner] is not aware of any Police/Mental Health contact during the past year, but due to the initial report and the conduct and statements of [Respondent], [Petitioner] has every reason to believe that [Respondent] is still a danger to himself or others and there is a likelihood that he may cause injury to himself or others and [Petitioner is] requesting that the [Underlying Order] be [renewed]." As an exhibit to the Application, Petitioner annexes various reports from the Rockland County Intelligence Center ("Intel Report"). The Intel Report indicates no police contact with Respondent since the issuance of the Underlying Order. The Intel Report references the incident report and subsequent arrest, relevant to the Underlying Order. An investigation report presented by the Rockland County Sheriff is consistent with the Intel Report, as aforesaid.

Upon presentation of the Application to the undersigned, a Temporary ERPO issued. The Temporary ERPO and Application were served upon Respondent and a hearing on the Application was scheduled for September 19, 2024.

On September 19, 2024, Petitioner appeared with counsel. Respondent appeared pro se, although Attorney Eric Zitofsky attended as a courtesy to Respondent, but who was not retained as counsel of record herein. Attorney Zitofsky represented Respondent in connection with the Underlying Order and a related criminal case in the West Haverstraw Justice Court. Attorney Zitofsky informed the Court that the related criminal case resulted in an adjournment in contemplation of dismissal ("ACD"). Irrespective of Attorney Zitofsky's courteous attendance, Respondent advised the undersigned that he wished to appear pro se herein as to the Application for renewal of the Underlying Order. Respondent was advised of his right to be represented. The Court adjourned the hearing to October 7, 2024 to enable the Respondent to give further consideration to being represented by counsel and or to provide him further opportunity to prepare for self-representation as to the hearing. The Temporary ERPO was continued.

On October 7, 2024, Defendant did not appear for the hearing. The Court took testimony from Petitioner and granted the Application. Thereafter, the Respondent advised the Clerk that he mis-calendared the time of the hearing. A new appearance date was scheduled for October 18, 2024.

On October 18, 2024, Petitioner appeared with Counsel, Respondent appeared pro se, and the hearing proceeded. At the outset, with the Respondent now before the Court, the undersigned vacated, on consent, the record of the October 7, 2024 hearing and the ensuing ERPO renewal. The Temporary ERPO was re-instated. At the hearing, both parties testified. Petitioner introduced two Exhibit 1 (an email) and Exhibit 2 (a deposition of facts). Respondent introduced Exhibit A (documents related to the ACD of his criminal case, relevant to the Underlying Order). Petitioner was directed to order the hearing transcript and the matter was adjourned for the issuance of the within determination.

At the hearing, Petitioner testified as follows: that he responded to a call for service on September 18, 2023 regarding Respondent; that with regard to said call for service, West Haverstraw Elementary School ("School") personnel expressed concern about a parent (the Respondent) who was going to pick his son up from school; that said concern was based upon an angry phone call from Respondent; that when Petitioner arrived at the School, Respondent was outside putting his son in Respondent's car; that Respondent appeared very upset about his son, who was in an altercation at school, and that as to said altercation, Respondent did not believe that the School did enough to help his son; that Respondent calmed down as he spoke with Petitioner; that Petitioner permitted Respondent to leave the School; that Petitioner thereafter interviewed John Parrilla, a security guard at the School, who indicated that Respondent made alarming remarks; that Respondent allegedly told the security guard that Respondent would burn down the school and shoot everyone (Exhibit 2); that months before said incident, that Respondent sent an email (Exhibit 1, entered into the record on consent) to Principal Scalia in which Respondent wrote, inter alia, (a) that he is "fucking outraged and ready to explode with furor", (b) "But there's one thing I would burn this whole world for with everything in it and that's my son", and (c) "There is so much more I would [do] from the fire that's lit[ ] in my soul"; that the email's reference to "burn[ing]" is consistent with what Respondent purportedly said to the security guard in connection with the September 18, 2023 incident (see Exhibit 2); that the security guard provided a deposition of facts (Exhibit 2, entered into the record on consent); that Respondent's behavior was a safety concern to the School; that the School showed a video to Petitioner in which Respondent was seen pounding his fists on the floor and kneeling on the floor, and that Respondent was "highly irate"; that Respondent was subsequently arrested for making terroristic threats and that an Order of Protection was issued; that at some point in the past, Respondent attempted to purchase a shotgun in Connecticut.¹

At the hearing, Respondent testified as follows: that since the issuance of the Underlying Order, that he has been cooperative and complied with the Underlying Order; that since the issuance of the Underlying Order, he has not had any police contact; that he secured an ACD (Exhibit A, entered into the record on consent) as to the criminal case that flowed from the incident at the school; that he has complied with all conditions connected to the ACD; that he has undertaken counseling; that he has been "getting support for the issue [he] had as far as emotional support to deal with [such] situations in a better manner as a father "; that he requests that the Court deny the Application in that the Underlying Order and the Application have prevented him from securing certain employment; that he understands the seriousness of the relevant issues presented herein; that his goal is to raise his son to the best of his ability; that he has undergone counseling at least twice per week for the past year with the VA; that said counseling aspires to provide him support for dealing with "tough" situations like the one that occurred at the School; that he is "pretty much" a single father as his wife has been sick for five years; that he is presently continuing treatment on a monthly basis until the ACD period expires on February 20, 2025; that counseling was a condition of the ACD, but that the justice court required, as a condition of the ACD, that counseling continue for a six month period beyond the expiration of the ACD; that as to said additional six months of counseling, Respondent is not sure why that requirement was attached, but that same, "was part of the deal."

Petitioner's counsel confirmed that all of the alleged facts occurred prior to the issuance of the Underlying Order, and that there are no new facts giving rise to the Application, but for Petitioner's contention that Respondent has "an anger problem and that he is likely to engage in conduct that would result in serious harm possibly to himself or others." Petitioner's counsel contends that while there are no new facts, that the incident at the School that resulted in the Underlying Order was "outrageous." The foregoing constitutes the Petitioner's belief that the Respondent continues to be likely to engage in conduct that would result in serious harm to self or others as defined in MHL § 9.39(a).

DISCUSSION

In this action, Petitioner has the burden of proving his case by clear and convincing evidence, which is a higher and more demanding standard than the preponderance-of-the-evidence burden (see, CPLR §§ 6345[2] and 6343[2]). The Court notes that hearsay is permissible in a proceeding of this nature (see, CPLR § 6343[2] ["The court may consider the petition and any evidence submitted by the petitioner, any evidence submitted by the respondent, and any testimony presented, and the report of the relevant law enforcement agency submitted " (emphasis added)]).

Applications for the renewal of Extreme Risk Protection Orders are governed by CPLR § 6345(1), which provides as follows:

"If a petitioner believes a person subject to an extreme risk protection order continues to be likely to engage in conduct that would result in serious harm to himself, herself, or others, as defined in paragraph one or two of subdivision (a) of section 9.39 of the mental hygiene law, such petitioner may, at any time within sixty days prior to the expiration of such existing extreme risk protection order, initiate a request for a renewal of such order, setting forth the facts and circumstances necessitating the request. [ ] The court may issue a temporary extreme risk protection order in accordance with section sixty-three hundred forty-two of this article, during the period that a request for renewal of an extreme risk protection order is under consideration pursuant to this section." (emphasis added).

Accordingly, Petitioner's mere belief that Respondent continues to be likely to engage in conduct is a sufficient basis to initiate an ERPO renewal proceeding, such as the Application at bar. The Application "[sets] forth the facts and circumstances necessitating the request" as noted, supra. The statute does not require new facts and or circumstances, and just, instead, the Petitioner's belief as to Respondent continuing to be likely to engage in the nature of conduct relevant hereto. While the standard remains that of clear and convincing evidence, the level and or nature of the Petitioner's requisite belief is not defined. The statute's use of the word "continues" indicates that the Legislature intended that renewals can be based upon the Court's findings in the first instance, to wit: that a respondent continues to be likely to engage in conduct that would result in serious harm to self or others as defined in MHL § 9.39(a) — a judicial determination made when the Supreme Court issued the ERPO the first time around. There is no statutory requirement that new facts be alleged to have occurred during the last year.

On its face, the transcript does not, at first glance, appear to satisfy the clear and convincing burden of proof. Petitioner testified that he believes the Respondent continues to be likely to engage in conduct that would result in serious harm to self and or others, while the Respondent says that such is not the case, and that the Application should be denied: a classic "he said / she said" that is not demonstrative of the clear and convincing standard. There are no new facts presented other than those presented in support of the former application that resulted in the Underlying Order, which facts are certainly outrageous and concerning. For any person to speak of shooting or burning a school, or anything remotely similar, particularly in an era where society is plagued with the horrors of mass shootings, often in schools, is clearly of significant concern.

Clear and convincing evidence, in this Court's view as the finder of fact herein, is nonetheless established by virtue of the Respondent's testimony which he voluntarily offered at the hearing. Respondent is undergoing counseling due to being ordered to do so in connection with the ACD. That counseling is still in progress. In fact, the justice court required, as part of a negotiated disposition in the criminal case that flowed from the incident at the School, that counseling continue for a six month period even beyond the expiration of the ACD. Respondent's testimony indicates that he already plans to terminate counseling once the Justice Court's February 20, 2025 artificial expiration date arrives, presumably irrespective of his condition and or mental health at that time — he did not testify that he does not need counseling. In fact, his testimony indicates that he is perhaps benefitting from same. The pre-emptive decision to terminate counseling simply by virtue of a deadline and or a date on a calendar set by another person is concerning. Noteworthy, the Respondent's Exhibit A — the ACD form of the West Haverstraw Justice Court — indicates that the ACD expires on February 20, 2025 (a date in the future), which means that as of the date hereof, the criminal charges are not yet dismissed and are, therefore, still pending against him. Exhibit A specifically states that the West Haverstraw Justice Court "is considering granting to [Respondent] an adjournment in contemplation of dismissal [ ]." (emphasis added) Exhibit A continues to explain that the charges will be dismissed on February 20, 2025 "unless restored to the calendar by the [Justice] Court prior to said date [ ]." (emphasis added).

With the record before this Court, inter alia, the outrageous conduct of Respondent at the School, that the Respondent is actively engaged in counseling, that said counseling is on the verge of concluding based upon a justice court-imposed deadline, and criminal charges that are still pending ACD, it is this Court's determination that renewal is warranted.

In light of the foregoing, it is hereby

ORDERED, that Petitioner's Application for Extreme Risk Protection Order Renewal is GRANTED; and it is further

ORDERED, that Petitioner shall serve a copy of this Decision & Order, with Notice of Entry, upon Respondent, at the residential address Respondent placed upon the record, by certified mail, within ten (10) days of the date hereof.

The foregoing constitutes the Decision & Order of this Court.

Dated: December 23, 2024

New City, New York

E N T E R:

HON. DAVID FRIED, A.J.S.C.

STATE OF NEW YORK

COUNTY OF ROCKLAND

FOOTNOTES

1.   Respondent objected, indicating that the attempt to purchase a shotgun in Connecticut occurred prior to the incident at the School. This allegation, however, was limited to Respondent's objection and was not part of his sworn testimony.

David Fried, J.