Double Jeopardy and Domestic Violence Law
The New York Law Journal, "Outside Counsel,"
June 22, 1995, p.1.
The new domestic violence legislation presents significant double jeopardy
issues, as violations of protective orders and the charges of underlying criminal
conduct can now be brought in both Family and Criminal Court. The legislature clearly
intended "The Family Protection and Domestic Violence Act of 1994", to provide for
continued access to Criminal Court when violence continues in violation of a lawful
order.1 Concurrent jurisdiction between Criminal and Family Court is one of many
provisions that expand access to the courts for victims of domestic violence and is
essential in insuring effective enforcement of protective orders.2
Prosecution for criminal contempt, under Section 215.50(3)3 of the Penal Law,
raises significant double jeopardy issues if the violation for civil contempt has
already been heard in Family Court pursuant to Section 156 of the Family Court Act.4
Judges and prosecutors will need to determine whether the charges of contempt and the
underlying criminal conduct are identical offenses requiring the protections of the
Double Jeopardy Clause.5
We know that families affected by domestic violence are in many courts at once.
Concurrent jurisdiction between Family and Criminal Court has existed for some time.
A child protective proceeding can take place in Family Court, while a criminal
prosecution goes forward arising out of the same conduct. Because of the different
purposes of these courts, standards of proof and dispositional alternatives, the
subsequent criminal prosecution is not barred by double jeopardy, even where the
district attorney is a party to both proceedings.6
The Supreme Court's interpretation of the Double Jeopardy Clause, has shifted
dramatically in recent years. Originally, the Court adhering to the Blockburger7 rule,
required that "the test to be applied to determine whether there are two offenses or
only one is whether each provision requires proof of an additional fact which the other
In Grady v. Corbin9, the Court added an additional element to the Blockburger
rule, which required that "if the government, to establish an essential element of an
offense charged in that prosecution, will prove conduct that constitutes an offense for
which the defendant has already been prosecuted,"10 then that subsequent prosecution
was barred by double jeopardy.
Only three years later, the Court in United States v. Dixon11, explicitly
overruled Grady and reinstated the Blockburger or "same elements" test. In Dixon, the
defendant, after repeatedly assaulting his wife, was prosecuted on different occasions
for violating the civil protective order she had obtained. After applying the "same
elements" test, the Court found that the elements of assault were indistinguishable
from the acts proscribed in the protective order. However, the charge of assault with
intent to kill, contained a different level of intent, and thus, prosecution for this
offense was not barred by double jeopardy.
The Court of Appeals in People v. Colombo12, determined that a conviction for
criminal contempt under section 750 of the Judiciary Law barred a prosecution for
criminal contempt under the Penal Law.
More recently in People v. Latham13, the Court of Appeals followed the Supreme
Court's reasoning in Dixon, to apply the Blockburger rule to a challenge to the delayed
death exception of New York's statutory double jeopardy protection, Section 40.20 of
the Criminal Procedure Law. We can infer that this test will be the one used on
appellate review of challenges to successive prosecutions for violations of protective
orders and the underlying criminal charges.
The Appellate Term in the Second and Eleventh Judicial District, have applied
the Blockburger rule to successive prosecutions for criminal contempt under Section 750
of the Judiciary Law followed by a conviction under Section 27-2118[a]  of the New
York City Administrative Code14. Thus in Popack, the court held that conviction of "the
former required proof of court order and the latter of an order of the department,"15
and was not barred by double jeopardy.
There is a significant area of caselaw which articulates the distinction
between civil and criminal contempt. This only emphasizes the double jeopardy problems
that exist if successive prosecutions for violations of protective orders proceed in
both Family and Criminal Court. The Court of Appeals distinguished civil contempt from
criminal contempt by stating that civil contempt is "the vindication of a private right
of a party..."16. The Court also noted that "the line between the types of contempt
may be difficult to draw ...and the same act may be punishable as both a civil and a
The new domestic violence legislation allows for the use of discretion by the
Family Court judge and district attorney to avoid double jeopardy problems. Under
Section 846[b][ii] of the Family Court Act, when a petition alleging a violation of a
lawful order of the court is filed, the court can either:"(A)hear the violation
petition and take such action as is authorized; or (B)retain jurisdiction to hear and
determine whether such violation constitutes contempt of court, and transfer the
allegations of criminal conduct...to the district attorney for prosecution pursuant to
section eight hundred thirteen of this article; or (C) transfer the entire proceeding
to the criminal court..."
To avoid double jeopardy issues, where serious allegations of abusive conduct
have been made, one alternative is to transfer the entire matter to Criminal Court,
another to retain jurisdiction over the violation while transferring the more serious
allegations. The issue of obtaining the petitioner's consent may be a problem, where
intimidation can be a factor. However, while Family Court judges can sentence up to 6
months and order restitution up to $10,000, Criminal Court judges can impose longer
jail sentences, consecutive sentences and lengthy periods of supervision through
Section 215.54 of the Penal Law requires that at sentencing, the Criminal Court
judge must, to avoid double jeopardy problems, consider the sentence of the Family
Court judge. However, merely applying this statute at sentencing will not overcome
double jeopardy concerns. The Double Jeopardy Clause protects individuals not only
from successive punishments, but also against successive prosecutions and convictions,
for the same offense18. The courts must still apply the Blockburger test, to determine
if any of the elements of each of the offenses are different. This, and the use of
discretion by Family Court judges and prosecutors, will minimize double jeopardy
1 Family Protection and Domestic Violence Act of 1994, Ch.222, Legislative Memoranda.
2 K. Kinports and K. Fisher, "Orders of Protection in Domestic Violence Cases: An Empirical Assessment of the Impact of the Reform Statutes", 2 Texas J. of Women and the Law 163 (1993).
3 Section 215.50 of the Penal Law states that: "A person is guilty of criminal contempt in the second degree when he engages in...intentional disobedience or resistance to the lawful process or other mandate of a court..."
4 Section 156 of the Family Court Act provides in relevant part that: "the provisions of the judiciary law relating to civil and criminal contempts shall apply to the family court..." See also Section 753 of the Judiciary Law.
5 US Const., 5th Amend, Double Jeopardy Clause, provides that no person shall be:"subject for the same offense to be twice put in jeopardy of life or limb."
6 People v. Roselle,84 NY2d 350(1994).
7 Blockburger v. United States, 284 U.S. 299 (1932);Illinois v. Vitale,447 U.S. 410(1980).
8 Id. at 304.
9 495 U.S. 508 (1990).
10 Id at 521.
11 ___US___, 113 S.Ct.2849(1993).
12 31 NY2d 947(1972).
13 83 NY2d 233 (1994).
14 People v. Popack, NYLJ May 29, 1991 at 29,col.4 (App Term 2d and 11th Jud Dist), app.withdrawn 80 NY2d 894.
16 Matter of McCormick v. Axelrod, 59 NY2d 574 (1983).
17 Id. at 583. See New York City Department of Housing Preservation and Development v. 24 West 132 Equities 137 Misc.2d 459 affd 150 AD2d 181, app. dism. 74 NY2d 841; New York City Department of Housing Preservation and Development v. New Outram, 160 Misc.2d 156 (App.Term,2d and 11th Jud. Dist.1994); New York City Department of Housing Preservation and Development v. Ieraci, 156 Misc.2d 646 (Civ. Ct. Kings Co. 1992)
18 North Carolina v. Pearce, 395 U.S. 711, 717(1969).
Lisa Fischel-Wolovick, Esq.
5911 Riverdale Ave., Riverdale, New York 10471
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