Are the Procedures and Criteria for the Issuance of Temporary Order of Protection Clearly Set Out ?
In People v. Forman (145 Misc 2d 115, 123 [Crim Ct, NY County 1989]), the court observed that the procedures and criteria for the issuance of temporary order of protections "are nowhere set out in a coherent fashion."
While temporary order of protections are issued in coordination with the bail hearing at arraignment, at which the defendant is afforded an opportunity to be heard, "there is surprisingly little authority concerning the nature of a defendant's opportunity to be heard." (People v. Forman, supra, 145 Misc 2d, at 123.) As observed by the court in People v. Forman (supra, 145 Misc 2d, at 123-124):
"At arraignment, in addition to the presentation of an accusatory instrument [and] defendant's NYSID sheet ... a hearing on an initial application for bail or recognizance customarily consists of the presentation of facts and legal argument by prosecution and defense counsel, and counsel's responses to questioning by the court ...
Thus, at defendant Forman's arraignment, the People were required to make a presentation of facts and law to support their application for a temporary order of protection ... and defendant, by counsel, was entitled to present facts and law in opposition to the application."
As held in People v. Forman (supra, 145 Misc 2d, at 125):
'Danger of intimidation or injury' to complainant is the appropriate standard to be applied by a court considering an application for a temporary order of protection as a condition of bail or recognizance ...
There must be a ' "reasonable foundation" ' for the court's determination [citations omitted] and the reason for the court's determination should be stated or, at minimum, must be ascertainable from the record."