November 15, 2013

P&N DOMESTIC VIOLENCE LAW UPDATE: Knowledge of Order of Protection Enough, Proper Service Not Required

Just Knowing that an Order of Protection Exists Was Enough to Keep Abuser in the Case Even Though Not Properly Served with Order: People v. Jakubowski.

Adam and Roksana's romantic relationship deteriorat...ed into violence. Roksana went to Family Court and obtained an Order of Protection. She later handed a copy of the Order to Adam, which directed him to stay away from her and ordered Adam not to intimidate or threaten Roksana. (Note: parties ordinarily cannot "serve" each other personally with legal documents. When they do, they are told by the Court that they must get someone to serve the papers for them and adjourn the case so they can do it right).

As fate would have it, Adam saw Roksana in the street and made eye contact with her. He gestured with his finger across his neck in a throat-slashing manner, and then took pictures of her. Roksana reported the meeting with Adam to the police and Adam was arrested.

Adam's lawyer tried to have the case dismissed and argued that the personal service of the order that was made by Roksana was ineffective and that Adam did not, therefore, have knowledge of the order, as required by the contempt statute. His lawyer also argued that the alleged throat-slashing gesture did not amount to a threat of harm.

In the Family Court context, which is different from Criminal Court, actual notice of an order of protection, rather than proper service, is enough. The fact that Adam was given a copy of the Order by Roksana gave him actual notice that he was not to bother her.

The Family Court Judge acknowledged that there may be policy reasons why a party should not serve another party with an order of protection, those reasons do not also require that a criminal contempt proceeding be dismissed because of improper service of the Order. Nevertheless, the Court ruled that "When a defendant knows the contents of a court order and intentionally disobeys it, the statute, which vindicates the authority of the court, is violated, even if the manner of service of the court order was not specifically permitted by statute."

The Court also ruled that the throat-slashing gesture in fact amounted to a threat of harm. The full decision is found at the following link: http://www.courts.state.ny.us/reporter/3dseries/2013/2013_23376.htm#1FN

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