People v. Mack

¶1The questions raised on appeal by defendant are (1) whether the failure of a designated "appropriate law enforcement official” to advise defendant’s wife, pursuant to former subdivision 2 of section 812 of the Family Court Act (see L 1977, ch 449, § 1), as to her available choices of a forum in which she could seek redress of personal injuries sustained at his hands constitutes a jurisdictional defect, and (2) assuming the answer is in the affirmative, does the record before the court present a question of fact requiring a hearing as *588to whether defendant’s wife was properly informed of her options pursuant to such statute as it read at the time of the alleged assault upon her by defendant. Contrary to the position taken by the majority, I believe that the answers to both questions should be in the affirmative. Since a guilty plea waives all nonjurisdictional defects (People v La Ruffa, 40 AD2d 1022, affd 34 NY2d 242, remanded 419 US 959, affd on rearg 37 NY2d 58, cert den 423 US 917), and defendant pleaded guilty to assault in the second degree, it must be determined at the outset whether the failure of a responsible official or officials to inform a victimized spouse of her right to elect the forum in which all litigation should be conducted vitiates subsequent proceedings in either court on jurisdictional grounds. Generally, factors that should be considered in ascertaining whether a procedural infirmity is so gross that it constitutes a jurisdictional defect, are (1) the purpose of the procedural requirement allegedly breached, and (2) administrative means available to insure compliance with the procedural requirement. With respect to the procedural requirement, it is significant to note that chapter 449 of the Laws of 1977, enacted with the support of many women’s organizations and groups, was designed to afford more effective relief to the "battered spouse”. Proponents of the measure believed that the Family Court, which had exclusive jurisdiction of intra-family offenses up to that time, did not possess sufficient sanctions for abusive conduct. Under the prior law, commencement of criminal proceedings based on an intra-family offense was jurisdictionally defective and the matter was transferred to the Family Court pursuant to section 813 of the Family Court Act (People v Johnson, 20 NY2d 220; People v Jones, 59 AD2d 617). In his message approving chapter 449, Governor Carey made the following observation (NY Legis Ann, 1977, pp 175, 176): "Pursuant to the changes effected by this bill, a victim will now be permitted the option of proceeding in Family Court or in a criminal court. By giving criminal courts concurrent original jurisdiction over these family matters, this legislation now makes available the entire range of criminal sanctions which would have been applicable had the crime not occurred within a family or household. Prior to making the selection of a court, the victim will be informed that a proceeding brought in Family Court will be for the purpose of attempting to keep the family unit together, while an action commenced in criminal court will be for the purpose of punishing the offender.” (Emphasis supplied.) From the language employed in subdivision 2 of section 812 of the Family Court Act, as amended by section 1 of chapter 449 of the Laws of 1977, and the thrust of the Govenor’s message of approval, it is manifest that the purpose of such law was to permit the battered spouse to exercise an informed election between the two courts depending upon whether her primary thought was to preserve the marriage or to punish the offending spouse for his or her brutal behavior. With respect to the legislative intent as it relates to the jurisdictional issue raised herein, it has been held, correctly I believe, that jurisdiction of a court to adjudicate a controversy rests on three essentials, namely, (1) jurisdiction of the subject matter, (2) jurisdiction of the parties, and (3) jurisdiction to render the particular judgment in the particular case (State ex rel. Lambert v Flynn, 348 Mo 525, 532). As a concomitant to the third essential, i.e., jurisdiction to render the particular judgment in a particular case, it is also true that where an element of jurisdiction depends on the power of the court under a public policy, such element cannot be waived or disregarded (cf. State ex rel. Lambert v Flynn, 348 Mo 525, 532, supra). Therefore, if a court cannot try a question except under particular conditions or when approached in the matter provided, the law withholds *589jurisdiction unless such conditions exist or unless the court is approached in the manner provided (21 CJS, Courts, § 85; cf. State ex rel. Lambert v Flynn, 348 Mo 525, 532, supra). At first blush it may seem anomalous that in this instance the person asserting that the failure to inform the victimized spouse constitutes a fatal jurisdictional defect is the assailant husband and not the injured spouse. However, what seems evident from the subject statute is that the public policy established therein is directed not primarily for the benefit of the victim but rather to the future of the marriage, a relationship shared by both the victim and the assailant. A choice of courts necessarily affects the ultimate relief, and failure of the injured spouse to be able to exercise such right may produce results never intended by her. For example, assuming, without deciding, that the wife herein was not so informed, and yet wished to see defendant punished, nevertheless she may not have realized that his prior felony offender status would result in something she may not have wanted, namely his mandatory incarceration for a lengthy term. Moreover the failure to inform a complainant of the information contained in subdivision 2 of section 812 of the Family Court Act not only defeats the right of the injured spouse to decide as to the future course of the marriage, but also results in having the course of future proceedings vested solely under the unbridled discretion of the agency to whom the complaint is made, e.g., the District Attorney’s office or the police department. Such latter result is implicitly proscribed by subdivision 3 of section 812, which impliedly assumes that the required information was conveyed to the injured spouse and then specifically forbids the official designated to impart such information from discouraging or preventing the injured spouse from initiating proceedings in the court of his or her choice. Thus I conclude that if the statutory conditions with respect to informing the injured spouse of her right to select the judicial forum were not complied with, Criminal Term would have had no power to dispose of this matter (cf. State ex rel. Lambert v Flynn, 348 Mo 525, 532, supra). With respect to administrative aspects of insuring compliance with the procedural requirements set forth in subdivision 2 of section 812 of the Family Court Act, judicial notice should be taken of subdivision 4 of the same statute, which specifically provides that the administrator of the State courts shall prescribe the form to implement subdivision 2 (see L 1977, ch 449, § 1; L 1978, ch 628, § 3). In connection with this aspect, the following statement contained in an article appearing in the New York State Bar Journal, December, 1978, by Jeffrey W. Allister and Sue Schiefer Levy, entitled "The Impact of the New Family Offense Legislation”, is especially pertinent (50 NYS Bar J 648, 651): "It is suggested that an Election of Forum form be prepared, including an explanation of those items in Family Court Act §812(2), which would have to be acknowledged by any person wishing to proceed.” (Emphasis supplied.) Thus it is patently clear that under subdivision 4 of section 812, the Office of Court Administration has both the power and duty to promulgate a simple form which should be used to insure compliance with the requirements set forth in subdivision 2.1 am also of the opinion that Criminal Term should have directed that a fact-finding hearing be held on the issue of whether the injured spouse was properly informed pursuant to the statute and made an unfettered choice, instead of denying defendant’s application solely on the papers submitted thereon. The moving affirmation of defendant’s attorney, as amplified by his affirmation supporting reargument, recites that in a telephone conversation defendant’s spouse told him that she was not advised, inter alia, of her right of choice under subdivision 2 of section 812. Defense counsel also averred in a reply *590affirmation that the arresting officer admitted he did not explain to Mrs. Mack the Family Court options in this case. In opposition the prosecution contended upon information and belief, based on the file of the matter in the District Attorney’s office, and without sufficient elaboration, that "authorized officials” which "included members of the Westchester County Sheriffs Department Sex Crime Unit and the City of Rye Police Department”, advised Mrs. Mack, inter alia, of the procedures available in each court. Based on such contradictory assertions, I believe a sharp issue of fact has been presented to warrant holding this appeal in abeyance until after a hearing is conducted and findings of fact rendered. In the event it is found after a hearing that the injured spouse was not properly informed, Criminal Term may then impart to her the statutory information and have her state her preference of forum for the record. Based on the record made on remand this court may, if she chose the Family Court, remit the matter to Criminal Term with a direction to transfer it to the Family Court, whereas if she chose the criminal court, this court should give her election nunc pro tunc effect and affirm the conviction. For the above reasons, I vote to dissent, remand the matter for a hearing and hold the appeal in abeyance.