PEOPLE v. PERRY (2018)

In this prosecution involving intimate partner violence, the defendant pled guilty to Aggravated Criminal Contempt and on March 18, 2016 was sentenced to 2 to 4 years in prison. A full final stay-away order of protection was issued in favor of the victim effective until March 17, 2028.

Defendant, together with the victim, now petitions the court for a modification of that order of protection to allow them to continue their relationship.

In sum, the defendant and the victim contend that the source of any romantic discord was alcohol, which both have foresworn. They further argue that they are “consenting adults in a long term relationship” and “are ready, as adults, to move forward.”

The victim, in her affidavit in support of this application, expresses her love for the defendant and denies any fear or apprehension in trying to re-establish their relationship.

In deciding the motion, the court must seriously consider the wishes of the victim; understanding that the court is an outsider imposing its judgment on her, implicating issues of privacy, safety, autonomy and, ultimately, justice. Nothing is more destructive to a court's authority than the unwillingness to listen. A judge should always be uncomfortable substituting his or her judgment for that of a domestic violence victim pleading her case. Indeed, ideal social conditions are those which allow people to reach individual fulfillment easily and fully, unobstructed by the heavy hand of intrusive social intervention.

On the other hand, the law is clear that a court has authority to issue a full stay-away order of protection in the absence of the victim's consent (People v. Richardson, 134 A.D.3d 1566, 1567, 21 N.Y.S.3d 916 [4th Dept. 2015], lv. denied, 27 N.Y.3d 1074, 38 N.Y.S.3d 844, 60 N.E.3d 1210 [2016]; People v. Lilley, 81 A.D.3d 1448, 917 N.Y.S.2d 494 [4th Dept. 2011], lv. denied, 17 N.Y.3d 860, 932 N.Y.S.2d 25, 956 N.E.2d 806 [2011]; People v. Monacelli, 299 A.D.2d 916, 750 N.Y.S.2d 690 [4th Dept. 2002], lv. denied, 99 N.Y.2d 617, 757 N.Y.S.2d 828, 787 N.E.2d 1174 [2003] ), as long as it finds that the order of protection is not likely to achieve its purpose in the absence of the condition (see CPL § 530.12 [5] [a] ).

So it is that autonomy for domestic violence victims is a complicated subject. Personal agency is important for every individual and yet because criminal matters involving intimate partner violence are often extreme, a constraining agency is sometimes required. It is in such extreme circumstances that the difficult balance between privacy and autonomy and safety and societal peace must be reached.

In reaching that balance, a review of the parties' relationship and its intersection with the criminal justice system leading up to the issuance of this court's March 16, 2016 order of protection is critical.

It appears that the parties' relationship began in 2014 and soon became troubled. On May 26, 2014 the police responded to the victim's call and on a domestic incident report documented “scratches to neck, swelling to forehead.” The victim told the officers, “He started beating me․ I'm scared for my life.” In a February 7, 2015 domestic incident report, the police documented a “bump above left eye” and the victim's statement, “He threatened to shoot me.” One week later on Valentine's Day, 2015, the victim stated in yet another domestic incident report: “I asked for a protection order․ I am scared due to the harassment after he was arrested for assaulting me.” In a March 24, 2015 domestic incident report the police documented “swollen eye, bruising discoloration” and the complainant told them “he punched me in the eye causing surgery under the eye due to the nasal bone fracture.”

In addition to these domestic incident reports, the defendant pled guilty to assaulting the victim in May, 2014. At that time a full order of protection was issued by the court (and violated as documented by the domestic incident reports) which will not expire until May 29, 2019. One day prior to the February 14, 2015 domestic incident report, the defendant was again arrested for assault in violation of the May, 2014 order of protection.

As that case was pending, the defendant was arrested and indicted for breaking the victim's orbital bone in violation of the May, 2014 order of protection as well as the temporary order of protection issued in the case pending in criminal court. That indictment resulted in the plea and sentence by this court (concurrent with two other cases) and the issuance of the order of protection in issue here.

Weighing the autonomy of the petitioner against the substantial criminal intervention to protect her cannot be done in a vacuum. Experience teaches that 23 years after the passage of the Violence Against Women Act 93% of women homicide victims were murdered by a man they knew and intimate partner violence is still the leading cause of injury to women.

Against this backdrop, the repeated assaults and violations of orders of protection by this defendant divest all merit from the arguments for freedom to continue a relationship. This is especially true since the petition contains only unsubstantiated assurances of sobriety.

It is therefore clear to this court that the safety of the victim and others and the peace of society cannot be achieved in the absence of a full protective order prohibiting all contact by the defendant with the victim.

The motion is denied.

This constitutes the decision and order of the court.

Matthew J. D'Emic, J.