"Cutting open pills on the counter" is not a crime

In re Marquardt v Marquardt, 2012 NY Slip Op 05457 [4th Dept 2012] [available here]

There's a different feeling on the third floor of the Hall of Justice. When the bell dings and the scratched, dented doors of the elevator rattle open, the charge in the air around the suite of offices and courtrooms that make up Family Court is palpable. It is the static generated by the close proximity of lots and lots of people who really, really do not like each other. Only close family members can generate that kind of hate; it is a special kind of animosity that most of us cannot muster for strangers. It is the toxic venom reserved for those once loved and now despised.

The Fourth Department decision Marquardt v Marquardt provides a glimpse into that world. First, some background. Any person can file a petition in Family Court and seek a protective order against a family member. But, the petition must allege conduct that qualifies as a "family offense," i.e. a list of crimes that crop up most often in the domestic context. Harassment, assault, disorderly conduct; that type of thing.

The husband in Marquardt filed a petition seeking a protective order against his wife. The crime that he alleges his wife committed against him? Hubby claimed that "respondent (the wife) committed a family offense by engaging in acts that would constitute either first or second degree harassment 'by cutting open [her] pills on the counter, knowing that the [husband] has allergies' to medications." The Family Court concluded that the "pill cutting" satisfied the elements for criminal harassment: that the wife "engaged in conduct that was intended to harass, annoy or alarm petitioner, that petitioner was alarmed or seriously annoyed by the conduct, and that the conduct served no legitimate purpose."

The Fourth Department reversed, noting that the wife needed to open the medicine "to eat it with pudding based on her inability to swallow pills," and therefore it could not be said that "the conduct served no legitimate purpose." The Fourth Department went on to note that the husband did not even testify that he was allergic to the medicine used by his wife, "or to introduce any expert evidence in support of his testimony that the medication was a 'poison, a toxic poison that causes death.'"

To be fair to the Family Court here, the judge was probably just erring on the side of putting a protective order in place to act as a buffer between the parties. The Family Court judge noted in its decision "that 'ninety percent of the testimony' at the hearing was 'utter nonsense' and warned the parties that it would 'not waste another entire day listening to what [it] consider[ed] to be inane blather.'"

Welcome to Family Court: 90% utter nonsense, now with inane blather!