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Wednesday, February 18, 2015

Matter of Veronica P. v. Radcliff A., --- N.E.3d ----, 2015 WL 566677 (N.Y.), 2015 N.Y. Slip Op. 01300

Court of Appeals Holds Appeal from a Contested Order of Protection Issued by Family Court, Based upon a Finding That the Subject Individual Has Committed a Family Offense, Is Not Mooted Solely by the Expiration of the Order. 

In Matter of Veronica P. v. Radcliff A., --- N.E.3d ----, 2015 WL 566677 (N.Y.), 2015 N.Y. Slip Op. 01300 the Court of Appeals held that an appeal from a contested order of protection issued by Family Court, based upon a finding that the subject
individual has committed a family offense, is not mooted solely by the expiration of
the order. 

Petitioner sought an order adjudging respondent guilty of the charged offenses, as well as an order of protection against him pursuant to Family Court Act § 842. At
the hearing, both sides called witnesses to testify to the relevant events, and respondent vigorously opposed the entry of an order of protection or any other
adverse adjudication. In an oral decision rendered on February 4, 2011, the court found that respondent was guilty of a family offense, concluding that he had committed acts constituting harassment in the second degree. That same day, the court entered a written two-year order of protection against respondent. The written order stated that a family offense petition had been filed in the case, listed the date of the petition and noted that the order was being issued after a hearing at which respondent had been present. The order directed respondent to stay away from petitioner's home and to refrain from committing assault, harassment, stalking and certain other offenses against her. (The written did not declare that respondent was guilty of a family offense.)

          Respondent appealed, but while the appeal was pending, the order of protection expired. The Appellate Division unanimously dismissed the appeal as moot, citing the expiration of the order (Matter of  Veronica P. v. Radcliff A., 110 AD3d 486, 486 [1st Dept 2013] ). The Court of Appeals reversed. It observed that in general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. The ability of an appellate decision to directly and immediately impact the parties' rights and interests is among the most important aspects of the mootness analysis, for otherwise the analysis might turn on inchoate or speculative matters, making mootness an unwieldy doctrine of a thousand "what ifs." On the other hand, even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal.  In this case, the expiration of the order of protection did not moot the appeal because the order still imposed significant enduring consequences upon respondent, who might receive relief from those consequences upon a favorable appellate decision. Because the order of protection on its face strongly suggested that respondent committed a family offense, the court in a future criminal case or Family Court proceeding would likely rely on the order to enhance a sentence or adverse civil adjudication against respondent. Although the order did not declare respondent guilty of a family offense in so many words, the order noted that it was issued after a hearing in a family offense proceeding, and it expressly barred respondent from victimizing petitioner by committing a variety of crimes nearly identical to those charged in the family offense petition. Thus, a court examining the order may readily discern that Family Court found respondent guilty of committing a family offense against petitioner and issued an order of protection to prevent him from continuing to offend against her. Armed with that information, the court in a future case may increase the severity of any applicable criminal sentence or civil judgment against respondent. In the face of the substantial probability that the order of protection would prompt severely
deleterious future legal rulings against respondent, an appellate decision in his
favor would directly vindicate his interest in avoiding that consequence of the
order. The Court found that the the order of protection had other potential legal consequences that render it susceptible to appellate review.  Beyond its legal consequences, the order of protection placed a severe stigma on respondent, and he can escape that stigma by prevailing on appeal Rubenstein. The order essentially labeled respondent a family offender. Given the totality of the enduring legal and reputational consequences of the contested order of protection, respondent's appeal from that order was not moot.

Respondent urged the Court to hold that an appeal from any expired order of  protection, other than one entered upon stipulation, is not moot. The Court expressed no view on the correctness of that proposed holding because it was unnecessary to resolve the case. The order was revered and the matter remitted to the Appellate Division for further proceedings in accordance with the opinion.

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