It used to be that criminal courts would routinely issue a temporary order of protection (TOP) in a wide variety of cases without much consideration of a defendant's convenience or property rights. This was done at arraignment to protect a complainant from the person they had accused of a crime. For years problems arose whereby a home owner or lease holder who was accused of a crime would be forced out of their own residence for months on end simply because an allegation was made and the court granted a TOP.
This unjust situation was finally addressed by New York Appellate Courts in the landmark case Matter of Crawford v. Ally, 2021 N.Y. Slip Op 04082 (1st Dept., June 24, 2021). In that case, a defendant was accused of assaulting her roommate. The defendant was the lessee of the apartment where she and the complainant lived. The defendant was also the primary caregiver to her three children that also lived at that location. At arraignment, the Court issued a full order of protection barring the defendant from her own home.
After numerous legal challenges to the TOP, the Appellate Court finally found that the TOP's issuance without an evidentiary hearing regarding the appropriateness of the TOP violated the defendant's due process rights. The Court explained that when a defendant presents a court with information showing that there may be an "immediate and significant deprivation of a substantial personal or property interest" from the issuance of a TOP, the court must conduct a prompt evidentiary hearing to ascertain the facts necessary before deciding whether to issue the TOP.
This was a landmark decision that has since overhauled the entire procedure for issuing TOP's. As a result of the Court's decision, criminal courts now must hold an evidentiary hearing prior to the issuance of a TOP that would cause a defendant to be barred from their residence. If you or a loved one is accused of a crime and is facing the issuance of a TOP, the Law Office of Patrick Fischer is available to help protect your due process and property rights.
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