Articles Posted in Domestic Violence

In a case where the defendant was charged with 75 counts of criminal possession of a forged instrument in the second degree and criminal possession of a forgery device, during a suppression hearing the defendant moved to have the physical evidence seized from his trunk  suppressed due to an illegal inventory search.

An inventory search is a warrantless search that the police are permitted to conduct in connection with lawfully impounding a vehicle. In order for any evidence collected in an inventory search to be admissible, the inventory search must be reasonable and must be conducted according to established police procedure designed to meet legitimate objectives.  The objectives of an inventory search are threefold:  first, to protect the property of the owner while it is in the custody of the police; second, to protect the police against claims that property was lost, stolen, or damaged; third, to protect the police from dangerous items in the vehicle that might be hidden.  While the police may find incriminating evidence during an inventory search, a legitimate reason for an inventory search is not find incriminating evidence.

In Espinoza, during the suppression hearing the court found problems with the way the inventory search was conducted. When the defendant was stopped by a deputy sheriff for speeding, the defendant was arrested because he was driving on a suspended license.  The passenger was also arrested because of an outstanding warrant. While waiting for the tow, the deputy sheriff searched the defendant’s wallet and the vehicle and discovered several forged debit and credit cards, as well as a card reader.

In this case the defendant denies charges of child endangerment despite being found drunk and unconscious with two young children she was supposed to be caring for.

Early one morning a police sergeant found defendant Perez in the back seat of a cab with two infant children next to her.  Perez was unconscious and appeared to be intoxicated.  She was arrested and charged with two misdemeanor counts of endangering a child under N.Y. Pen. Law § 260.10(1) and (2).  Despite the observation of the police sergeant who found her, Perez filed a motion to dismiss the changes, arguing that the prosecution did not establish a prima facie case of child endangerment.

The charges against Perez are based largely on the observations of the police sergeant who found Perez slumped over in the back seat of a cab.  When the sergeant called out to her, she eventually woke up.  Her eyes were watery and bloodshot, she smelled of alcohol, she was unsteady on her feet, and she slurred when she spoke.  When the sergeant asked about the two children she seemed to have forgotten that they were with her.  She responded, “What kids? I don’t have any kids with me.”  The children appeared to be between 1 and 2 years old.

This case is being heard in the Family Court of New York in Kings County. The issue before the court is whether the help of the court is still required. The respondent mother has moved to dismiss the petitions. This motion is supported by the attorney for the children.

Case background

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The determination as to whether a parent is brought to court for maltreatment of a child is made by the New York State Office of Children and Family Services. When a complaint of child abuse is brought to them, it is their job to investigate the compliant thoroughly and to bring an abuser to justice. However, the elements of child abuse and neglect leave room for a good deal of independent conceptualization. What one person considers abuse or neglect is not considered abuse or neglect by some others.

With the advent of more Middle Eastern cultures coming in to America, the buzz topic has been female circumcision. In America, it is considered child abuse to circumcise a female child; however, it is not considered child abuse to circumcise a male child. Social norms factor greatly into the consideration of what is child abuse and neglect. Many African cultures believe that a skinny female child is a sin and a humiliation to her family. The mothers have been known to force feed their girls so that they gain weight. In their culture, it is believed that if they are not fat, they will not be desirable as wives. Different cultures have different beliefs about the treatment of children. As these cultures become mainstream in the United States, court systems will become more involved in determining if these customs should be preserved as integral to their cultures, or outlawed as child abuse or neglect. The lines have become so blurry that occasionally, the investigators assigned to the ACS become overzealous or hypersensitive to the plight of children. There is no question that children are considered precious in the United States. The goal of the court system is to ensure that children are cared for and provided a home life that is enriching to them. However, this goal can sometimes become diluted by circumstances.

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On January 2, 2008, an eight year old girl became defiant with her mother. They lived in New York. The child became physically aggressive and threw objects in the room and then went to her room and slammed the door. Her mother followed her into her room and took one of the child’s belts down. She prepared to swat the child on the buttocks with the belt, but the child jerked around. The belt buckle came into contact with the child’s face. The contact caused a small scratch to the outside corner of the child’s eye.

When the child went to daycare, she told the school that her mother had struck her in the face with the belt buckle. The New York State Office of Children and Family Services investigated the occurrence. They determined that the mother had mistreated her daughter and used excessive corporal punishment. They charged the mother with child neglect under the law. The law that applies to this type of situation is Social Services Law §412[2][a][i] and Family Ct Act § 1012[f][i]. To this point, the ACS stated that the woman punished the child to the point where the punishment damaged or was in imminent danger of damaging the child’s physical, mental, or emotional state.

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Dealing with child abuse situations is difficult, especially when the officers of the court are parents themselves. Understanding why families can be torn apart by this type of violence is often impossible to comprehend. Police officers and prosecutors can become caught up in the emotion of the incident and fail to see evidence that is right in front of them. In other cases it can be just the opposite. The desire of the New York family court to take all steps possible to keep a family together can be counterproductive to a child who has been targeted for severe abuse in the family. Sometimes, services that are provided by the Administration for Children’s Services to rehabilitate abusive parents only applies a band aid to a gushing arterial injury.

That was the case of one family in 2004. The Administration for Children’s Services had already removed the children from the home once. They required the parents to attend parenting classes and other classes aimed at reuniting the family. Following the completion of these classes, the Administration for Children’s Services began returning the children to the home. The first to children to return to the home were ones that had been determined to have been derivatively abused under the statutes. These were the children who were not directly targeted for the primary abuse. They were the ones who witnessed or aided the parents in abusing the target child. The target child was the last one to return to the home. There were four children altogether at this time.

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On June 9, 2009, a little girl was taken into custody in New York by the Administration for Child Services. The child who was only four years old had only been returned to her natural parents for a few months. When she was only ten months old, her parents were charged with abusing her. At that time, she had several broken ribs, broken arm and numerous contusions and bruises that were in differing degrees of recovery. She had one burn to the back of her neck that was so severe that the skin was lifting off of it. At that time, she and her three other siblings were removed from the home. Neither parent could give a reasonable explanation for the injuries that the little baby girl had suffered. She and her siblings lived apart from their parents for three years while the Administration for Child Services worked to reunite the family.

In February of 2009, the little girl who was then four years old, was returned to her parents along with two of her siblings. By this time, her mother had given birth to two more children. Within five months of being returned to the home, the mother showed up at a local medical center with the child. She stated that the child had burned her elbow by touching an electrical outlet when she got out of the shower. The nurse practitioner who saw the child did not believe that this account of how the child was injured made any sense at all. She determined that there was no reasonable way that a child could sustain such a severe burn on her elbow from touching an electrical outlet with her hand after exiting the shower. Further, she noticed that the child had bruises, cuts, and scratches all over her body. These included a fresh bite mark on her heel. The burn itself on her elbow was a deep tissue second degree burn. This type of burn would have been very painful and it is doubtful that the child would have suffered this type of injury without crying in pain.

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In August of 1973, an orthodox Jewish woman married an orthodox Jewish man in Brooklyn, New York. They were married for 32 years and had four children. The eldest daughter was age 32 and the youngest age 13 when the couple divorced. At the time of the marriage, the husband was 22 years of age and had just graduated from college. The wife was eighteen years of age and was a high school graduate.

Over the first few years of their marriage, the father completed dental school and set up a thriving dental practice. The wife encouraged him in his career and was active within his practice. She did most of the hiring for his practice. The wife purchased the family home and decorated it. She returned to school when he was working in his practice and ultimately obtained a bachelor’s degree in education, a master’s degree, and a post-graduate degree as well as a social work certificate. On June 10, 2005, the husband was granted a divorce.

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On January 24, 1992 a man and a woman from Ecuador were married in Brooklyn, New York. The husband was seven years younger than his wife. She had one daughter from her previous marriage to this man’s cousin. The cousin died a few years before. The couple had two children of their own. The husband is a business and property owner, the wife was a stay at home mom. She had immigrated to the United States illegally. She would occasionally get jobs doing piece sewing in factories before most of the factories shut down. In May of 2001, the couple separated.

Family Court issued a temporary order of protection demanding that the husband not go near the wife, children, or marital home. The wife cited numerous occasions of domestic violence that have left her with memory problems and limited cognition. She reports that the daily beatings where she was yanked into walls by her hair caused permanent brain damage.

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In 1992, a young man who had been born in Albania returned for a visit. While he was there, he met a young Albanian girl and they began to date. He returned to the United States to work and the following year went back to Albania for an additional visit. During this visit, he asked the girl to marry him and she accepted. They were married in September of 1995. After the marriage, he moved his new wife into his parents’ home and returned to the US. The following year, she gave birth to their first child, a son. The husband did not see his new son until the boy was two months old. In 2001, the husband moved his family to the US and over the next years had four more children. The youngest was born in March of 2006.

During this time, the young mother was hiding a horrible truth. She was the victim of domestic violence. It began in November of 1999 while her husband was in Albania for a visit. He became angry because his young son needed to go to the bathroom which was located in an outhouse. When the mother tried to take the boy to the bathroom, the husband became enraged. He said that the boy was lying and did not need to use the bathroom. He then grabbed the mother by her head and smashed it into a wall. She had a black eye, hearing problems, and bruises to her ear. The recovery from these injuries was several weeks. This attack occurred in front of the couple’s oldest son.

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