|
FULTON COUNTY---For the second time this month, the Appellate Division of state Supreme Court has ruled that Fulton County Family Court Judge David G. Jung violated the rights of a woman he had sentenced to six months in jail even though he knew she was lodged in the Schenectady County Jail and couldn't appear in the case before him.
The appeals court upheld a decision by state Supreme Court Justice Richard Aulisi who had released Angelic Constantino and Karrie Foote in separate proceedings, finding that Jung had violated their rights when sentencing them to jail for contempt.
The court found that Judge Aulisi had ruled correctly in granting Constantino's habeas corpus petition and held that Jung's failure to produce Constantino for the court proceeding and give her an opportunity to be heard on the violation petition before incarcerating her violated her fundamental right to due process as well as her statutory rights under the Family Court Act.
"We fully agree with Supreme Court's assessment that 'the administration of justice requires a fundamental fairness that was patently lacking in the proceedings resulting in petitioner's confinement' and find that the remedy of habeas corpus was 'dictated…by reason of practicality and necessity", the court ruled. http://www.courts.state.ny.us/reporter/3dseries/2006/2006_03141.htm
Last April, Sheryda Cooper, commissioner of the Fulton County Department of Social Services, sought to have Constantino incarcerated for violating an order of protection issued by Jung by failing to complete substance abuse counseling, or visit her children. At the time this violation proceeding was commenced, however, Constantino was already incarcerated in the Schenectady County Jail on unrelated charges. The jail was listed as her address on the summons and she was in fact served there.
Knowing that a hearing was scheduled for April 11, 2005, Constantino repeatedly endeavored, without success, to contact the Fulton County Family Court. Specifically, she asked jail officials to provide her with the address and telephone number for the court. No one at the jail would do so. She also asked jail officials to contact the Fulton County Family Court on her behalf or, at the very least, advise the court of her incarceration. Again, they would not do so. Rather, she was repeatedly informed by jail officials that the Fulton County Family Court knew of her incarcerated status and would issue an order to produce thereby ensuring her appearance in court on the day in question.
The appeals court found that Constantino also sought the assistance of family in an effort to contact the Fulton County Family Court. Petitioner's mother telephoned the court on April 11, 2005 and asked what she needed to do to arrange an order to produce for her daughter. She was advised by a female employee that "there was nothing [she] could do, that [petitioner] would have to do [it herself]." When Constantino's mother explained that her daughter was unable to do so because she was in the Schenectady County Jail, the court employee merely responded, "Oh well."
Having failed in her repeated efforts to contact the Fulton County Family Court, and given that court's policy not to issue an order to produce in the absence of a written request, Constantino did not attend the scheduled hearing on the violation proceeding since she remained incarcerated. Upon her failure to appear, Jung, among other things, found her to be in default and sentenced her to 180 days in jail for violating the prior order. Even though no evidence was offered or testimony taken, the court's written decision indicated that a fact-finding hearing in fact took place.
With assistance of counsel, Constantino then commenced this proceeding for a writ of habeas corpus. Following a hearing, Judge Aulisi granted the petition, vacated the default judgment and ordered petitioner's immediate release.
Earlier this month, the Appellate Division ruled that Jung had violated the constitutional rights of Foote. Aulisi had also released her from jail last year, finding that Jung had improperly imprisoned her following contempt proceedings.
Jung claimed he was just 'following the law as he reads it".
In the Foote case, the Appellate Division said that following a hearing pursuant to Family Court Act and a subsequent confirmation hearing, Jung confirmed the Support Magistrate's decision finding petitioner in contempt for willfully failing to pay court-ordered child support and directed her immediate incarceration in the Fulton County Jail for 180 days.
Foote's attorney, James T. Murphy of the Legal Services of Central New York who also represented Constantino, then commenced a proceeding for a writ of habeas corpus alleging that she was unlawfully detained by respondent because Family Court had not properly advised her of the right to counsel guaranteed by the Family Court Act. Supreme Court granted petitioner's application and directed her immediate release.
The Fulton County Board of Supervisors had expended about $7,000 of taxpayer funds to appeal Aulisi's decision on behalf of Jung, hiring the law firm of Murphy, Burns, Barber and Murphy of Albany.
Catherine A. Barber represented the county.
The finance committee of the Fulton County Board of Supervisors, after hearing a presentation from Jung and Fulton County Attorney Arthur Spring, voted Thursday to appeal the Foote case, authorizing up to $5,000 to hire a law firm to petition the state Court of Appeals for permission to appeal. The full board has yet to approve the expenditure.
It's likely that Jung will ask the county taxpayers to fund an appeal of the Constantino case too.
Jung reportedly told the committee members that the impact on the Foote decision "on children statewide is enormous" and he asked the committee to seek review from the Court of Appeals. 4-29-06
© 2006 North
Country Gazette
|
