Appeal of Expired Order of Protection not Moot


Facts: Mr. Radcliff regularly stayed in an apartment with his Aunt, petitioner Veronica P. Veronica P. filed a petition charging Radcliff with various family offenses including harassment and assault. The family court granted the petitioner a temporary order and held a hearing on the petition. The family court found that Radcliff was guilty of family offenses and entered a two-year order of protection. Radcliff appealed but, while the appeal was pending, the order of protection expired and the appellated court dismissed the appeal as moot. The Court of Appeals reverses the appellate division, finding that the expiration of the order did not moot Radcliff's appeal.

Issue: "whether 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 mooted solely by the expiration of the order."

Rule: "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" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Matter of New York State Commn. on Jud. Conduct v Rubenstein, 23 NY3d 570, 576 [2014]; Coleman v Daines, 19 NY3d 1087, 1090 [2012]).

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 (see Matter of Bickwid v Deutsch, 87 NY2d 862, 863 [1995]; see also Rubenstein, 23 NY3d at 576).

Application: The Court found that the "order of protection does not moot the appeal because the order still imposes significant enduring consequences"

The Court listed some of those consequences: "the order of protection on its face strongly suggests 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. In that regard, although the order does not declare respondent guilty of a family offense in so many words, the order notes that it was issued after a hearing in a family offense proceeding, and it expressly bars respondent from victimizing petitioner by committing a variety of crimes nearly identical to those charged in the family offense petition." Additionally, "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." The Court found that stigma, reputational harm and being labelled an offender is also a lasting effect to be challenged on appeal, implying that these orders imbue a psychological consequence as a result of the order's issuance.

Furthermore, "The order of protection has other potential legal consequences that render it susceptible to appellate review. For example, in a future legal matter, an opposing party might be permitted to use the order of protection to impeach respondent's credibility (see Bickwid, 87 NY2d at 863-864 [finding that the impeachment potential of the adjudication being appealed supported the conclusion that the appeal was not moot])." Lastly, "since the order of protection remains in a police computer database, albeit not in an active file (see Executive Law §§ 221-a [1]; 221-a [6]; see also 9 NYCRR 486.2 [g]), respondent may face additional law enforcement scrutiny and an increased likelihood of arrest in certain encounters with the police (see 9 NYCRR 486.3 [n] [declaring information obtained from the database to be relevant to the decision to arrest an individual])."

Conclusion: "In sum, given the totality of the enduring legal and reputational consequences of the contested order of protection, respondent's appeal from that order is not moot."

The Case is In the Matter of Veronica P. v. Radcliff, __ NY __ (February 12, 2015) (http://www.nycourts.gov/ctapps/Decisions/2015/Feb15/12opn15-Decision.pdf).


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