Respondent has moved for an order vacating the order of fact-finding dated March 7,

2012 which found that she had committed the family offense of Disorderly Conduct (Fam.

Ct. Act §812 [1]; Penal Law §240.20), as well as the order of disposition entered on the same

date which suspended judgment in accordance with Family Court Act §841(b).

By petition filed pursuant to Family Court Act §821 (1) on January 9, 2012 the petitioner,

Albert G., alleged that the respondent, Sheryl G., had committed one or more family offenses

within the meaning of Family Court Act §812 (1). The petition alleged that the parties

are married and residing together in the marital residence, and that their child, Isaiah G.

(born September 14, 1995), resides in the home with the parties. More specifically, the petition

alleged that "on January 7, 2012 at [the] home of both parties, petitioner states respondent cut my [*2]

right arm with a glass . . . petitioner received stitches at Jamaica Hospital. In the past, respondent

smacked petitioner on two separate occasions."

The parties first appeared before the Court on January 9, 2012 and respondent's attorney

advised the Court that a concurrent criminal action had been commenced against the wife based

upon the same incident alleged in the family offense petition (see, Fam. Ct. Act §§812 [1], [2]

[a]; 813 [3]; People v. Wood, 95 NY2d 509, 512-513; Matter of Alfeo v. Alfeo, 306 AD2d 471).

The Court issued a temporary order of protection (Fam. Ct. Act §828), and the case was

adjourned until March 7, 2012 with the expectation that the related criminal case would be

resolved by that date. Both parties and their attorneys appeared before the Court on March 7,

2012 and the Court was advised that the criminal action against Sheryl G. in the Queens County

Criminal Court had concluded. The Court was presented with documentation from the Criminal

Court which established that on January 23, 2012 Mrs. G. had been convicted of the offense of

Disorderly Conduct (Penal Law §240.20), and that on the same date the Criminal Court

(Yavinsky, J.) had sentenced the respondent to a conditional discharge for a period of one year

(Penal Law §65.05). The conditional discharge mandated that respondent attend and complete a

12 session anger management program, and the Criminal Court also issued a one year order of

protection against the respondent directing that she commit no further family offenses against her

husband (Criminal Procedure Law §530.12 [5]).

A fact-finding hearing upon the family offense petition was conducted before this Court

on March 7, 2012. At that hearing the respondent stipulated that she had been convicted of the

offense of Disorderly Conduct by the Criminal Court for the identical incident alleged in this [*3]

family offense petition, and based upon that conviction this Court entered a fact-finding order

determining that respondent had committed a family offense (see, Matter of Juan C. v. Cortines,

89 NY2d 659, 667; Parker v. Blauvelt Volunteer Fire Department, 93 NY2d 343, 349; People v.

Evans, 94 NY2d 499, 502; Matter of Gowrie v. Squires, 71 AD3d 1023, 1024; Matter of Debra

MM. v. Ralph MM., 61 AD3d 1278, 1279). The Court proceeded to an immediate dispositional

hearing (Fam. Ct. Act §833), and pursuant to Family Court Act §841 (b), judgment was

suspended against respondent for a period of six months. In connection with this order of

disposition, the Court directed that respondent comply with the terms of the Criminal Court's

sentence as well as the order of protection issued by that Court (22 NYCRR §205.74 [a]).

In support of the motion to set aside this Court's fact-finding order, respondent contends

that the six month suspended judgment period has expired without further incident or judicial

intervention and that she is entitled to have the order vacated and the family offense petition

dismissed.

While Family Court Act §841 allows for a suspended judgment as a possible order of

disposition, the statute is silent as to the ultimate disposition of the family offense petition and

any intermediate orders, such as the fact-finding order, upon the uneventful expiration of the

suspended judgment period.

Suspended judgments are provided for in various Family Court proceedings such as

Person in Need of Supervision Proceedings (Fam. Ct. Act §§754 [1] [b]; 755; e.g., Matter of

Michael H., 239 AD2d 618; Matter of Naquan J., 284 AD2d 1, 4), child protective proceedings

(Fam. Ct. Act §1052 [a] [i]; 1053; e.g., Matter of Amelia W., 77 AD3d 841, 842; Matter of M.N.,

16 Misc 3d 499), and a proceeding seeking the termination of parental rights (Fam. Ct. Act §633; [*4]

e.g., Matter of Michael B., 80 NY2d 299, 311; Matter of Jonathan J., 47 AD3d 992, 993, lv

denied 10 NY3d 706).^[FN1]With the exception of termination of parental rights proceedings for

which specific provisions were enacted in 2005 (L 2005, ch 3 [amending Fam. Ct. Act §633];

see, Matter of Jonathan B., 193 Misc 2d 52, rev'd 5 AD3d 477, lv dismissed 2 NY3d 791), the

articles governing child protective proceedings, family offense proceedings, and PINS

proceedings do not contain provisions governing the disposition of a case in which a suspended

judgment has been granted and the suspension period lapses without further judicial action.

As a general rule, it has been held that "[w]here an order of suspended judgment is silent

as to the legal consequences of the expiration of the period of suspension, the judgment itself

does not expire by operation of law. Rather, the Family Court retains jurisdiction to consider a

motion by any party to enforce, modify, or vacate it at any time, upon a proper factual showing of

compliance or noncompliance with its terms and conditions" (Jonathan B. at 479 [emphasis

added]; see also, Matter of Darren V., 61 AD3d 986, 987, lv denied 12 NY3d 715; Amelia W.,

at 842 [adopting similar rule for suspended judgment in child protective proceeding]).

Thus, while a party's "compliance with the terms of a suspended judgment may, but does

not necessarily, lead to dismissal" of the underlying petition (Darren V. at 987), the party subject

to the suspended judgment is not automatically entitled to have the judgment vacated and the

petition dismissed. Instead, the court retains jurisdiction over the proceeding for the purpose of

enforcing, modifying, or vacating the suspended judgment "upon a proper showing of [*5]

compliance or noncompliance with its terms and conditions" (Jonathan B. at 479), as the interests of justice may require. This rule is entirely consistent with the provisions of Family

Court Act §844 which, although not specifically applicable to suspended judgments, provides

that the Family Court may "for good cause shown . . . reconsider and modify any order issued

under paragraphs (b), (c) and (d) of section eight hundred forty-one" (see, Sobie, Practice

Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Court Act §844 at 336

[West 2009]).

Here the respondent's motion is based solely upon the fact that the six month suspension

period ordered in this Court's order which suspended judgment has lapsed without any further

judicial action. That fact, standing alone, neither extinguishes the Court's fact-finding order, nor

does it entitle the respondent to dismissal of the underlying family offense petition. In fact, the

Family Court order which suspended judgment specifically conditions the suspension of

judgment upon her compliance with all of the terms of the Criminal Court order of protection and

its sentence of a conditional discharge. As of the date of respondent's motion, she clearly has not

fully complied with the conditional discharge and the order of protection inasmuch as the order

of protection and the conditional sentence both do not expire until January 12, 2013.

The conditional discharge to which respondent was sentenced to by the Criminal Court is

a revocable disposition (Criminal Procedure Law §§60.01 [2]; 410.70 [5]), and in the event of a

violation of the conditional discharge, respondent may be subject to a different authorized

sentence upon the violation for which she has been convicted (Criminal Procedure Law §60.01

[3]; People v. Bennett, 269 AD2d 401, lv denied 94 NY2d 916; People v. Charland, 30 AD3d

838, 839; People v. Hope, 32 AD3d 1115, 1116). [*6]

Therefore, at the present time because the respondent remains subject to the sentence

imposed by the Criminal Court as well as the order of protection, there is no basis for this Court

to vacate its own fact-finding order or the suspended judgment, both of which are based entirely

upon the Criminal Court's judgment (Criminal Procedure Law §1.20 [15]) rendered by the

Criminal Court. At such time as respondent has fully complied with the conditional discharge

and she has been granted relief from the judgment of the Criminal Court, she is free to seek relief

from the suspended judgment and fact-finding order issued by this Court.

It is therefore,

ORDERED, that respondent's motion for an order vacating the orders of fact-finding

and disposition entered in this family offense proceeding is denied for the reasons stated.

This constitutes the decision and order of the Court.

E N T E R:

_________________________________

JOHN M. HUNT

Judge of the Family Court

Dated: Jamaica, New York

October 3, 2012