Cohen, Esq., New York, New York for Mark Perry and Rosalyn
People are represented in this matter by Eric Gonzalez,
District Attorney, Kings County, Brooklyn, New York (Angelina
Ibragimov, of counsel).
Matthew J. D'Emic, J.
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.
together with the victim, now petitions the court for a
modification of that order of protection to allow them to
continue their relationship.
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
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.
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.
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 [4th Dept. 2015], lv. denied, 27
N.Y.3d 1074 ; People v Lilley, 81 A.D.3d 1448');">81 A.D.3d 1448
[4th Dept. 2011], lv. denied, 17 N.Y.3d 860');">17 N.Y.3d 860 ;
People v Monacelli, 299 A.D.2d 916');">299 A.D.2d 916 [4th Dept. 2002],
lv. denied, 99 N.Y.2d 617');">99 N.Y.2d 617 ), 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  [a]).
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.
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.
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
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.
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