NYS "STATE SPONSORED VINDICTIVE PROSECUTION" IN FAMILY COURT VIOLATES THE CIVIL RIGHTS OF MEN AS WEL

FAMILY COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

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MAYRA PERREIRA,                                                          DOCKET: 0-35097-11

                                                                                               FILE: 128634

                                            Petitioner,

v.

MENDELSSOHN PEREZ,

                                           Defendant,

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Respondent, in good faith and with due diligence, alleges and submits, respectfully;

                         RESPONDENT’S DENIALS AND/OR ADMISSIONS

1.      Respondent acknowledge and admits to all allegations that the Petitioner and respondent do have children in common as described within the petition.

2. Respondent denies any  all recollection and allegations contained within the petition which

     Alleges any kind of family offenses against him.

                   RESPONDENT ONLY AND FIRST AFFIRMATIVE DEFENSE

1.      The instant family offenses brought by a very vindictive, angry and Serial Liar of a woman; all fabrications.. And from her deliberate and intentional soliloquy, the charges will become something of a standard ; liken, most respectfully—that Old Negro Spiritual—“On The Good- Ship Lollipop,” sung—in Blackface, by Shirley Temple,  and continuously filed for all reason just stated. Yes, I’m angry, upset and do not see these unnecessary proceedings as comical either. Malcolm X said long ago: “A man who stands for nothing—Will fall for anything.” This woman thinks just because she is a woman that a jurist my come along not wearing the tradi- tional judicial robe but that uniform of the Ku Klux Klan, and provide her immunity from perjury and the filing of false written instruments. Before these proceeding have gotten under-ways, petitioner had already engaged in lying faster than a run-away-motor-car. In that, in the Clerk’s Office, she lied by installing numerous family offenses, which never occurred to her or anyone else. Thereafter, she appeared before the Court and continued her lies under oath. She should go right to jail for this frame up. To be sure these are lies, go to the following paragraph.

2.      The alleged victim of all of these family offenses is “Emery,” who allegedly was physically beaten. Yet, this petitioner never filed any police report. Petitioner also claims that she, too, was beaten, at some---God—Knows—Time, by respondent and with a “lamp.” That too didn’t result in a police report. Petitioner further claims that respondent was arrested finally, and the final twist—“The petr. is afraid for her safety and for the safety of the child,” apparently “Emery.”

3.      Vindictive Prosecution does apply to Family Court proceeding as it can’t succeed without “State Sponsored denial of Equal Protection of the Laws” to the respondent. Numerous events in this relationship, petitioner has actually beaten this man with weapons inside of the marital home. True, also—respondent didn’t summons the NYPD as a result; just like the petitioner hadn’t. There did come a moment that respondent’s love for his precious children were more important than to continue residing upon “the front-lines” with the petitioner. She had resented his proverbial dumping of herself, and these proceedings are just the tip of the iceberg of that which she has already planned for the respondent. In any event, and this may be a case of first impression with regards to the following defense---“C.A.7 (Wis.) 1996. Claim of vindictive or selective prosecution requires showing that defendant (1) was singled out for prosecution while other violators similarly situated were not prosecuted; and (2) decision to prosecute was based on arbitrary classification such as race, religion, or exercise of protected rights. U.S. v. Monsoor, 77 F.3d 1031. E.D.N.Y. 1988. Doctrine of prosecutorial vindictiveness does not apply to prosecutions brought by different sovereigns, absent showing that state prosecution was a stalking horse for a subsequent federal investigation. U.S. v. McGriff, 678 F.Supp 1010. N.D.N.Y. 1997. In some circumstances, a presumption of unconstitutional prosecutorial vindictiveness arises when prosecutors employ practices that pose a realistic likelihood of vindictiveness. U.S. v. Cady, 955 F.Supp. 164. .9 (Cal.) 1999. “Vindictive prosecution” occurs when a prosecutor brings additional charges solely to punish the defendant for exercising a constitutional or statutory right, such as a defendant’s right to a jury trial. U.S.C.A. Const. Amend. 6 U.S. v. VanDoren, 182 F.3d 1077. C.A.7 (Ill.) 1994. Prosecution is “”vindictive” and violates due process if it is undertaken to punish defendant because he has done something the law plainly allows him to do; thus, showing of actual vindictiveness require objective evidence of some kind of genuine prosecutorial malice. U.S.C.A. Const. Amend. 5. U.S. v. Porter, 23 F.3d 1274. Too, just because it is traditionally something that always occurs—just doesn’t ring right with the federal Constitutional rights of men. The court proceedings –AT SOME POINT, must end for both sides, and in all courts. The other rational to the finality of punishment is that two court located in two different places rarely if ever know what the other judge is doing or has done—this keeps the mess churning on forever ! That is the civil rights against vindictive prosecution comes into play. According to petitioner, the respondent was arrested, and prosecuted before the Criminal Courts, thus she got her proverbial five pounds of flesh ! What more here in this relationship can be left ? NOTHING ! In conclusion, collateral estoppels end the cases due to previous prosecution. And, to put this matter to its deadly end—the alleged victim is NOT A CHILD, but a GROWN WOMAN---19 years of age, and chosen to reside with her father; not the petitioner-mother who is really seeking to keep child support’s water- falling in her direction. This faucet has dried up ! Both the State and Petitioner can become liable in suit if she the charges cannot be maintained. (See, elements for Abuse of Process, Malicious Prosecution, Negligent Infliction of Emotional Distress, Conspiracy to Violate Civil Rights, Abuses Under Color of Laws). Multiple prosecution involving the identical family are a shame, and abuse, even though taken inside two different jurisdiction---it allows in this case for future abuses by the petitioner who has no real case at all.  The victim has grown into an adult; the remaining son is still a child, but none of the offenses apply here to him either as they are a frame up, and stalking of respondent.

4.      Too, by the Temporary Order of Protection—an instrument which definitely does not apply in this relationship, the court has attempted to make me homeless, or reside inside the court’s antrium as it forbids me from coming into contact—inside my own home, with my 19 yrs old daughter, the phanthom victim.

5.      Next, the French punishment of “Peine forte’ et dure,” that is slowly pressing one to death,” of the petitioner is abusive, and comes with a price—JAIL, due to the fact that petitioner has taken the wings of flight into lying before the court already. Repeatedly this petitioner’s stalking sem to amount to ---- to allow me the peace of mind and let alone would spiral petitioner into a full blown epileptic fit, and thereafter, fold my civil rights into some-where inside the department of Google.

6.      This Serial Liar shouldn’t be permitted to turn the court into  reprise of the Salem Witch Trial. Justice is served when it is equally fed to both sides; not just the woman.

7.      If entitled, I demand that this Court begin considering “child support” for my daughter who lives with me, and from the petitioner. She can go to work for that purpose.

     WHEREFORE, the above document is made in good faith, and should be acceptable, and all relief sought be same should be granted, and any other relief as to this Court my seem just and equitable, plus assignment of counselor.

Dated:________________, 2012

                                                                                    RESPECTFULLY,

                                                                                     MENDELSSOHN PEREZ

CC: Administrative Judge Susan Knipps

FAMILY COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

____________________________________________

MAYRA PERREIRA,                                                          DOCKET: 0-35097-11

                                                                                               FILE: 128634

                                            Petitioner,

v.

                                                                           REQUEST FOR BILL OF PARTICULARS

MENDELSSOHN PEREZ,                                   AND DEMAND FOR DISCOVERY

                                           Defendant,

___________________________________________

SIR(S):

PLEASE TAKE NOTICE, that pursuant to the Family Court Act, the respondent

demands that the petitioner disclose to the respondent and make available for

inspection, photographing, copying or testing, the following property:(a) any

written, recorded or oral statement of the respondent, or by a co-respondent or

co-defendant named in the petition, made other than in the course of the criminal

transaction, to a public servant engaged in law enforcement activity or to a person then

acting under his or her direction or in cooperation with him or her,

(b) any transcript of testimony or statement relating to the action or proceeding

pending against the respondent, given by a co-respondent or co-defendant named

in the petition before any court of law or grand jury;

(c) any written report or document, or portion thereof, concerning a physical or mental

examination, or scientific test or experiment, relating to the proceeding which was

made by, or at the request or direction of a public servant engaged in law

enforcement activity, or which was made by a person whom the petitioner intends to

introduce at a hearing;

(d) any photograph or drawing relating to the proceeding which was made or

completed by a public servant engaged in law enforcement activity, or which was

made by a person whom the petitioner intends to call as a witness at a hearing,

or which the petitioner intends to introduce at a hearing;

(e) any other property obtained from the respondent, or a co-respondent or

co-respondent, regardless of whether such property will be offered in evidence

at a fact-finding hearing on the petition herein;

(f) any tapes or other electronic recordings which the presentment agency intends

to introduce at the fact-finding hearing, irrespective of whether such recording

was made during the course of the criminal transactions AS DESCRIBED

WITHIN THE INSTANT PETITION;

(g) anything required to be disclosed, prior to the fact-finding hearing, to the

respondent by the petitioner, pursuant to the Constitution of this State or of the

United States, including evidence tending to exonerate the respondent or detract

from the quality of the evidence that he committed the acts alleged in the petition

herein, particularly evidence indicating that the purported victim has been

untruthful in her descriptions of facts related to the conduct alleged in the petition

herein;

(h) a list of the names and addresses of any potential witnesses that the petitioner

may call at a fact-finding hearing on the petition herein, together with any written

or recorded statement, including any testimony before a grand jury, made by any

person whom the petitioner intends to call as a witness at the fact-finding hearing,

and a record of judgment of conviction or the existence of any pending criminal

action with respect to such person;

(1) a list of any alleged prior illegal, vicious, or bad acts of the respondent known

to the petitioner  that the petitioner  may use to impeach the credibility of the

respondent, should the respondent choose to testify at a fact-finding hearing;

(j) all reports, notes and memoranda prepared by police officers and other

public servants during the course of the investigation of the incidents alleged in the

petition; and

(k) the names and badge numbers of all police officers who investigated any of the

incidents underlying the allegations contained iii the petition herein.

PLEASE TAKE FURTHER NOTICE that pursuant to the law of the

Family Court Act the respondent requests that the respondent be provided with a

Bill of Particulars containing the following information, without which the respondent

cannot adequately prepare or conduct the defense:

(a) the precise date, time and location at which it is alleged the respondent

engaged in the conduct(s) described in the petition with regard to each charge of

which the respondent is accused;

(b) the precise nature of any force, coercion, or intimidation that the respondent

allegedly used during the conduct described in the petition with regard to each

charge of which the respondent is accused;

(c) the precise acts for each family offense in which it is alleged the respondent

engaged during the commission of each charge of which the respondent is accused;

(d) the identity of any individuals who were alleged to have been present during any

of the conduct described in the petition with regard to each charge of which the

respondent is accused;

(e) the identity of any individuals to whom the purported victim has made any statement

that the respondent did or did not engage in any of the conduct alleged in the petition;

(f) specification of each and every act or statement of the respondent or corespondent

during any of the conduct described in the petition reflecting the specific intent to cause

any and all alleged physical injury as described within the petition

(g) each and every specific physical and/or verbal act of this respondent which

allegedly caused physical injury in violation of Penal Law section 120.00(1); and,

(h) each and every specific physical injury alleged to have resulted from the acts

particularized in request “(g)” above.

Dated: Kings County, New York

___________________, 2012

                                                        Yours,

                                                          __________________________________

                                                                    RESPONDENT-FATHER

CC:

Kings County, New York

Clerk of Court, Family Court

FAMILY COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

___________________________________________

In the Matter of 

___________________                                REQUEST FOR BILL OF

Petitioner,                                                        PARTICULARS AND

v.                                                              DEMAND FOR DISCOVERY

___________________

Respondent.

___________________________________________

SIR(S):

PLEASE TAKE NOTICE, that pursuant to the Family Court Act, the respondent

demands that the petitioner disclose to the respondent and make available for

inspection, photographing, copying or testing, the following property:

(a) any written, recorded or oral statement of the respondent, or by a co-respondent

or co-defendant named in the petition, made other than in the course of the criminal

transaction, to a public servant engaged in law enforcement activity or to a person then

acting under his or her

direction or in cooperation with him or her,

(b) any transcript of testimony or statement relating to the action or proceeding

pending against the respondent, given by a co-respondent or co-defendant named

in the petition before any court of law or grand jury;

(c) any written report or document, or portion thereof, concerning a physical or mental

examination, or scientific test or experiment, relating to the proceeding which was

made by, or at the request or direction of a public servant engaged in law

enforcement activity, or which was made by a person whom the petitioner intends to

introduce at a hearing;

(d) any photograph or drawing relating to the proceeding which was made or

completed by a public servant engaged in law enforcement activity, or which was

made by a person whom the petitioner intends to call as a witness at a hearing,

or which the petitioner intends to introduce at a hearing;

(e) any other property obtained from the respondent, or a co-respondent or

co-respondent, regardless of whether such property will be offered in evidence

at a fact-finding hearing on the petition herein;

(f) any tapes or other electronic recordings which the presentment agency intends

to introduce at the fact-finding hearing, irrespective of whether such recording

was made during the course of the criminal transactions AS DESCRIBED

WITHIN THE INSTANT PETITION;

(g) anything required to be disclosed, prior to the fact-finding hearing, to the

respondent by the petitioner, pursuant to the Constitution of this State or of the

United States, including evidence tending to exonerate the respondent or detract

from the quality of the evidence that he committed the acts alleged in the petition

herein, particularly evidence indicating that the purported victim has been

untruthful in her descriptions of facts related to the conduct alleged in the petition

herein;

(h) a list of the names and addresses of any potential witnesses that the petitioner

may call at a fact-finding hearing on the petition herein, together with any written

or recorded statement, including any testimony before a grand jury, made by any

person whom the petitioner intends to call as a witness at the fact-finding hearing,

and a record of judgment of conviction or the existence of any pending criminal

action with respect to such person;

(1) a list of any alleged prior illegal, vicious, or bad acts of the respondent known

to the petitioner  that the petitioner  may use to impeach the credibility of the

respondent, should the respondent choose to testify at a fact-finding hearing;

(j) all reports, notes and memoranda prepared by police officers and other

public servants during the course of the investigation of the incidents alleged in the

petition; and

(k) the names and badge numbers of all police officers who investigated any of the

incidents underlying the allegations contained iii the petition herein.

PLEASE TAKE FURTHER NOTICE that pursuant to the law of the

Family Court Act the respondent requests that the respondent be provided with a

Bill of Particulars containing the following information, without which the respondent

cannot adequately prepare or conduct the defense:

(a) the precise date, time and location at which it is alleged the respondent

engaged in the conduct(s) described in the petition with regard to each charge of

which the respondent is accused;

(b) the precise nature of any force, coercion, or intimidation that the respondent

allegedly used during the conduct described in the petition with regard to each

charge of which the respondent is accused;

(c) the precise acts for each family offense in which it is alleged the respondent

engaged during the commission of each charge of which the respondent is accused;

(d) the identity of any individuals who were alleged to have been present during any

of the conduct described in the petition with regard to each charge of which the

respondent is accused;

(e) the identity of any individuals to whom the purported victim has made any statement

that the respondent did or did not engage in any of the conduct alleged in the petition;

(f) specification of each and every act or statement of the respondent or co-respondent

during any of the conduct described in the petition reflecting the specific intent to cause

any and all alleged physical injury as described within the petition

(g) each and every specific physical and/or verbal act of this respondent which

allegedly caused physical injury in violation of Penal Law section 120.00(1); and,

(h) each and every specific physical injury alleged to have resulted from the acts

particularized in request “(g)” above.

Dated: Kings County, New York

___________________, 2012

                                                        Yours,

                                                          __________________________________

                                                                    RESPONDENT-FATHER

CC:

Kings County, New York

Clerk of Court, Family Court

                                             MEMORANDUM OF LAW

FAILURE TO ANSWER DISCOVERY & BILL OF PARTICULARS LEAD TO

PERCLUSION OF ANY EVIDENCE, AND TESTIMONY

                                     Family Court, Monroe County, New York.

IN RE: MICHAEL J., a Person Alleged to be a Juvenile Delinquent, Respondent.

-- March 15, 1999

Edward J. Orlando, Law Guardian.Derek J. Jackson, Rensselaer, for New York State Office of Children and Family Services, petitioner. A motion has been made by the law guardian for the respondent requesting an order of preclusion based upon the failure of the New York State Office of Children and Family Services [hereinafter referred to as NYS OCFS] to comply with certain disclosure demands regarding this extension of placement proceeding.  The NYS OCFS takes the position in its written response that the respondent is not entitled to any pre-trial discovery in this case.

Legal Background

On February 18, 1997 a designated felony juvenile delinquency petition was filed in Monroe County Family Court as a result of a transfer order made by Supreme Court.  The respondent, Michael J., was charged at that time with Sodomy in the First Degree allegedly occurring while he was a resident at Hillside Children's Center.  On February 4, 1997 the respondent made an admission to Sex Abuse in the Second Degree and on May 19, 1997 he was placed with the Monroe County Department of Social Services for a period of twelve months so that he could receive sexual offender treatment at George Jr. Republic.1

On February 13, 1998 the Monroe County Department of Social Services petitioned Family Court for an extension of placement and a transfer of the respondent to the NYS OCFS. On April 3, 1998 placement was extended for twelve months and the respondent was transferred to the custody of the NYS OCFS for placement in a “limited secure” facility where he would receive close supervision, as well as treatment.

On December 17, 1998 the NYS OCFS filed this extension of placement petition requesting that the respondent's placement be continued for an additional period of twelve months.  The petition itself contains little information other than that the respondent is presently at the Goshen Residential Center in Goshen, New York. Attached to the petition is a copy of the last order of placement made on April 3, 1998 and an undated unsworn “clinical summary” signed “Jill Haysom, CSW.”

The respondent has objected to the petition and requested a hearing, as is his legal right under Family Court Act Section 355.3.  In preparation for the hearing, respondent's law guardian served two documents on NYS OCFS entitled “CPLR Article 31 Disclosure Demands” and “Demand for Bill of Particulars.”  The NYS OCFS has refused in writing and in open court to comply, taking the position that the law guardian is not entitled to any disclosure or discovery since this is an extension of placement action.  The Agency has not lodged any objections to the specifics of the disclosure or bill of particular demands, but instead has taken a policy position that the respondent in an extension of placement proceeding under Article 3 of the Family Court Act is not entitled to any discovery.  Additionally, counsel for the Agency alleges that NYS OCFS is not able to comply with discovery demands because of its limited legal staff.2 No motion for a protective order was made by the agency.  See, CPLR Section 3103.

The respondent has now moved for preclusion based upon the refusal of NYS OCFS to provide discovery or to respond to his demand for a Bill of Particulars.  As a result of his motion the hearing on the merits of the extension of placement originally scheduled for March 10, 1999 was adjourned until April 1, 1999.  The respondent's placement is set to expire on April 2, 1999.3

Conclusions of Law

This action is brought pursuant to Family Court Act Section 355.3. The statute requires that a petition to extend placement be filed by the placement agency, but does not direct specific requirements regarding the contents of the petition.  See, F.C.A. Section 355.3(1).

Even though an extension of placement action occurs after a determination of guilt and is in many ways similar to a dispositional hearing [cf. F.C.A. Section 352.2(2)?] the respondent retains certain due process protections, including the right to have notice of the hearing, be present with counsel and have an opportunity to refute the petition. People ex rel. Arthur F. v. Hill, 36 A.D.2d 42, 319 N.Y.S.2d 961, aff'd. 29 N.Y.2d 17, 323 N.Y.S.2d 426, 271 N.E.2d 911; ?see also, In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

Family Court Act Section 355.3 contemplates such a hearing to occur on an expedited basis.  The petition must be filed 60 days before the order expires and only limited authority is given to the court to extend placement pending a final decision.  F.C.A. Section 355.3(5).  At the conclusion of the hearing, the Family Court may extend placement for a maximum of one year based upon the best interests of the respondent and the need of the community for protection. Matter of Percy H., 159 A.D.2d 623, 552 N.Y.S.2d 682 (2nd Dept.1990).

Counsel for NYS OCFS correctly states that there is no specific statutory provision in Article 3 affording a respondent in an extension of placement case pre-hearing discovery.  However, Family Court Act Section 165(a) provides that when the Family Court Act provides no specific procedure, the CPLR shall apply “to the extent that they are appropriate to the proceedings involved.”

The court must, therefore, determine to what extent CPLR disclosure and demands for bills of particulars are appropriate to this action.  Juvenile cases under Article 3 of the Family Court Act are essentially civil in nature, although they have often been described as “quasi-criminal.” Matter of Gregory W., 19 N.Y.2d 55, 277 N.Y.S.2d 675, 224 N.E.2d 102.  Research reveals no reported cases on this issue.

Given the respondent's right to have notice of the proceedings, however, the court finds that it is a natural extension of his due process rights to have clear statements provided as to the bases for the request to continue his placement.  The respondent is housed in a limited secure facility and there is no doubt that he has a considerable liberty interest in whether he is required to remain in placement.4 The fact that he is being provided with treatment, supervision and education does not eliminate the essential fact that he is maintained in a juvenile correctional facility against his wishes.

The petition filed in this case contains no sworn statements in support of the Agency's claims that the respondent is in need of continued confinement.  As a result, the law guardian's request for a bill of particulars and for additional disclosure is reasonable and necessary to formulate a defense for his client.  Additionally, it is significant that the petitioning agency is the custodian of the respondent and as such can reasonably be expected to be in possession of the essential information requested.

Since the NYS OCFS does not claim that any items in the demand for a bill of particulars or in the disclosure demand were improper or overbroad, the court need not review the specific requests.  The law guardian moves for preclusion pursuant to CPLR Section 3042(d) for failure to provide a bill of particulars.  Although the court finds the failure to be wilful, it also determines that NYS OCFS relied on a misinterpretation of law in an area without specific legal authority and, therefore, will direct a conditional order of preclusion which will be satisfied if the agency complies within 10 days of this order, that is by March 25, 1999.

The court further makes a conditional order of preclusion based on the Agency's failure to comply with the respondent's demand to produce and demand for expert witnesses [CPLR Sections 3120 and 3101(d)(1)(i)?] which will be satisfied if the agency complies within 10 days of this order, that is by March 25, 1999.  The short response date is required so that the respondent may be prepared to proceed on the scheduled trial date of April 1, 1999 and is in keeping with the expedited nature of this proceeding.

FOOTNOTES

1. At the time of Michael's placement he was already in the custody of the Monroe County Department of Social Services as a result of the termination of parental rights of his parents some years before.  Michael had been in a series of foster placements prior to his placement at Hillside Children's Center where the sexual offense occurred.  He continues to be a ward of the Monroe County Department of Social Services.

2. Although Agency counsel orally argued that the provision of any discovery material would be overly burdensome due to lack of legal resources, he did not provide any documentation to support his position.

3. Although the extension of placement petition alleges that Michael's placement terminated on February 2, 1999 all parties agree that this date is erroneous and that his placement does not actually expire until April, 1999.

4. The court notes that each time Michael comes to court he is shackled about the feet and handcuffed, and is in the custody of transport personnel from the juvenile correction agency.  

DOCKET:                                                                  YEAR:

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FAMILY COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

___________________________________________

In the Matter of 

___________________                                               

Petitioner,                                                                     

v.                                                                                  

___________________

Respondent.

___________________________________________

==============================================================

REQUEST FOR BILL OF  PARTICULARS AND DEMAND FOR DISCOVERY

==============================================================

Petitioner:____________________

                 ____________________

Tele:        ____________________

==============================================================

Respondent:_________________

                    __________________

Tele:           __________________