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PEOPLE STATE NEW YORK EX REL. JAMES CLIFFORD v. ARTHUR E. KRUEGER (03/04/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY 1969.NY.40688 <http://www.versuslaw.com>; 297 N.Y.S.2d 990; 59 Misc. 2d 87 March 4, 1969 THE PEOPLE OF THE STATE OF NEW YORK EX REL. JAMES CLIFFORD, RELATOR,v.ARTHUR E. KRUEGER, AS WARDEN OF THE NASSAU COUNTY JAIL, RESPONDENT James J. McDonough and Matthew Muraskin for relator. William Cahn, District Attorney (Robert Peck of counsel), for respondent. Bertram Harnett, J. Author: Harnett


Bertram Harnett, J.

Author: Harnett

 While standing on a public sidewalk, James Clifford fired one round of a shotgun into the home of his sister and brother-in-law. Fortunately, no one was injured. Clifford's sister then brought an information charging him with "Reckless endangerment in the second degree". He was tried and convicted in the District Court, County of Nassau, without referral to the Family Court. Clifford now brings this writ of habeas corpus claiming that he should have been brought first before the Family Court, which has exclusive original jurisdiction, for an initial determination of whether the action was a family offense to be tried in the Family Court or was to be transferred to a criminal court. He claims that failing this, the District Court that convicted him did not have jurisdiction over him, and his conviction in that court must be set aside.

The People deny that the Family Court has exclusive original jurisdiction in this instance. Their argument rests on three essential points. First, they argue section 812 of the Family Court Act requires residence in the household, and there was no showing that Clifford resided with his sister and brother-in-law. Second, they argue section 812 applies strictly to "disorderly conduct and assault" as defined in the Penal Law and excludes all other crimes and offenses. Third, they argue the shot was not fired inside the home, but from a public place, that "this was more than just a husband slapping a wife incident inside their apartment or home".

The following provisions of the Family Court Act appear immediately relevant:

"§ 811. Finding and purpose. In the past, wives and other members of the family who suffered from disorderly conduct or assaults by other members of the family or household were compelled to bring a 'criminal charge' to invoke the jurisdiction of a court. Their purpose, with few exceptions, was not to secure a criminal conviction and punishment, but practical help.

"The family court is better equipped to render such help, and the purpose of this article is to create a civil proceeding for dealing with such instances of disorderly conduct and assaults. It authorizes the family court to enter orders of protection and support and contemplates conciliation procedures. If the family court concludes that these processes are inappropriate in a partiular case, it is authorized to transfer the proceeding to an appropriate criminal court."

"812. Jurisdiction. The family court has exclusive original jurisdiction, subject to the provisions of section eight hundred thirteen, over any proceeding concerning acts which would constitute disorderly conduct or an assault between spouses or between parent and child or between members of the same family or household. For purposes of this article, 'disorderly conduct' includes disorderly conduct not in a public place."

"§ 813. Transfer to family court. (a) Any criminal complaint charging disorderly conduct or an assault between spouses or between parent and child or between members of the same family or househod shall be transferred by the criminal court, not more than three days from the time the complaint was made, to the family court in the county in which the criminal court is located, unless

"(i) the complainant withdraws the complaint not later than three days from the time it was made; or

"(ii) the family court had transferred the proceeding to the criminal court; or

"(iii) the complaint is dismissed for legal insufficiency.

"(b) The phrase 'criminal complaint' as used in this article includes an information."

"§ 814. Powers of criminal court. (a) Upon the making of a criminal complaint charging disorderly conduct or an assault between spouses or between members of the same family or household and until the proceeding is transferred under section eight hundred thirteen to the family court or dismissed for legal insufficiency, the criminal court in which the complaint was made may hold the defendant, admit to, fix or accept bail or parole the defendant.

"(b) Upon the making of a decision to transfer said proceedings to the family court, the said criminal court may hold the defendant, admit to, fix or accept bail, or parole the ...


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