DECISION & ORDER Defendant was arraigned in Criminal Court on December 18, 2022, on charges of N.Y. Penal Law §§120.00(1), 205.30, 240.20(1), and 240.26(1), and a full “stay away” temporary order of protection (“TOP”) was issued in favor of the complaining witness. The matter was adjourned to December 21, 2022, and then administratively adjourned to January 9, 2023. On January 9, 2023, the Defendant requested a prompt hearing pursuant to Crawford v. Ally, 197 A.D.3d 27 (1st Dep’t 2021), to determine the appropriateness and scope of the TOP. At the conclusion of the hearing, and after consideration of the arguments presented by both sides, the Court issued an oral decision modifying the “full” TOP to a “limited” TOP, the reasoning which, is further explained below. In Crawford, the First Department held that when the defendant presents the court with a showing that there may be an immediate and significant deprivation of a substantial personal or property interest upon the issuance of a temporary order of protection with a full “stay away” provision, “the Criminal Court should conduct a prompt evidentiary hearing on notice to all parties and in a manner that enables the judge to ascertain the facts necessary to decide whether or not the TOP should be issued.” The First Department declined to articulate the precise form of the evidentiary hearing required. Unlike a formal fact-finding hearing or trial, a Crawford hearing typically occurs at the very beginning of the case, prior to discovery, investigation by the attorneys, or a comprehensive case analysis. Often times, attorneys appear at a Crawford hearing without any evidence, conducting more of an informal colloquy or conference, rather than an actual evidentiary hearing. This Court acknowledges that in the absence of appellate-level guidance on the format of a Crawford hearing, courts of concurrent jurisdiction have varied on the parameters used when making its determination. At the Crawford hearing, on January 9, 2023, the People conceded, and this Court found, that the full “stay away” TOP deprived the Defendant of a significant property interest, and the burden then shifted to the People to establish an articulated reasonable basis for its issuance. See Crawford, 197 A.D.3d 27. The People argued that a full “stay away” TOP was necessary to ensure the safety of the complaining witness, and in support of this assertion, the People relied on the unconverted complaint and assumptions. The People did not produce witnesses, documents or relevant evidence to support their burden. The People referenced, but did not offer, the Domestic Incident Report (“DIR”) giving rise to this case. In addition, the People referenced a prior DIR from 2014, involving a prior intimate partner, to support their position that a full “stay away” TOP is necessary. The Defense properly objected to its relevance. Additionally, the People acknowledged that the complaining witness is not cooperative, does not wish to have a full order of protection in her favor, and does not wish to proceed with this case. The People maintained that they are still conducting their investigation to determine if they can proceed with an evidence-based case against the Defendant. Lastly, the People surmised that the TOP should remain a full “stay away” because the Defendant has arranged for an alternative place to stay during the three weeks since its issuance and it is, therefore, not a burden for him to continue in that arrangement. The People were unable to articulate any basis for this assertion. In response, Defense counsel maintained that the Defendant has been living in his car and has nowhere else to live at the present time. Defense argued that the People failed to meet their burden, arguing that no evidence or testimony was introduced, and that the People’s case is based entirely on hearsay allegations. The Defense further argued that the Defendant does not pose a danger or threat of intimidation or injury to the complaining witness and that there was no medical attention received after the alleged incident giving rise to this case. The Defense reiterated that there was no evidence of past or present injury to the complaining witness and that there is plenty of room in the home for the parties to live at a respectful distance during the pendency of this case. Lastly, the Defense argued that the Defendant has been fully complaint with the terms of the full “stay away” TOP in effect since its issuance. This Court finds that when determining the parameters used in a Crawford hearing, the process involved should not be so flexible as to be completely unrestricted. The information presented should have some minimal indicia of reliability to ensure basic due process standards are met. While the evidence need not be “competent,” it should, at the very least, be material, relevant and legally introduced. The Court should only give as much weight to the evidence as its probative value deems appropriate. In essence, an informal colloquy between the parties should not be a substitute for the evidentiary hearing. In addition, when making its determination on a case-by-case basis, the severity of the allegations in the complaint, alone, may, in certain circumstances, suffice to sustain the People’s burden once the defendant has established a significant deprivation of a substantial personal or property interest. However, in this particular case, it does not. Thus, this Court finds the People failed to establish an articulated reasonable basis for the issuance of a full “stay away” TOP, and after consideration of the factors enumerated in C.P.L. §530.12 a “limited” TOP would achieve its purpose. As such, it is hereby ordered that the TOP is modified to a “limited” TOP. This constitutes the decision and order of the court. Date: January 17, 2023
