Crawford Hearings and CPL 182.

April 10, 2023

                                                   New York City, 1st Department.

                                                   Crawford Hearings and CPL 182.


For more than 40 years, it was usual for the courts to issue a temporary order of protection (TOP) after arraignment of the accused person to protect the complainant from any abuse from members of the same family (Barry, 2020).  The Criminal Procedure Law (CPL) provides that when a criminal action is pending involving a complaint between spouses or members of the same family, the court may issue a temporary order of protection committing the defendant to custody of the police as a condition for any order of adjournment in contemplation of dismissal (CPL 530.12). This practice of issuing temporary orders of protection without the judicial examination of the defendant regarding limiting of the rights has significantly changed following the decision of the court in Crawford v Ally (Barry, 2021). The purpose of this paper is discuss whether some statutory rights and restrictions can be waived, particularly the no virtual hearings restriction.

Keywords: Criminal Procedure Law, temporary order of protection, custody, judicial examination.

1.0 The matter of Crawford v Ally.

The petitioner was arrested on 3rd November 2019 and charged with third degree assault, second degree harassment, petit larceny and obstruction of breathing or blood circulation based on sworn accusations by her partner, Mayers that she and two men assaulted him. The alleged incident occurred inside 1232 Clay Avenue in Bronx, New York, Apt 4B. in the criminal court, the people consented to the petitioner being released but asked for a temporary order of protection. The court issued the order that prohibited the petitioner from contacting the partner (Mayers) and that the order would be “subject to the family court’s modification.”

The petitioner was also prohibited from entering Mayer’s home, saver to collect her personal items on the following day. The order was effective until 8th November 2019. Petitioners counsel argued that the listed apartment belonged to the petitioner and she lived there with her children. He therefore asked for a limited TOP. The People argued the petitioner had not demonstrated that the limited TOP was “necessary and appropriate.” The limited TOP was denied and hearing was adjourned to 8th November. On this further date, the People asked that the TOP remains in full effect given the nature of the charges.

The petitioner applied fresh for a limited TOP based on the ground that she was the owner of the apartment and the lease only allowed her, her two children and her brother to live in the residence. They argued that the order created the risk of her losing the apartment. The court adjourned the hearing further to 20th December 2019 with the order remaining fully in effect. On that further date, the petitioner attached the lease addendum listing herself, her brother and her two children as the authorized residents of the apartment. She therefore sought for modification of the order.

The People were opposed to the motion and argued that the matters raised had already been litigated and that the Court could not hear the claims to the apartment since Mayers was not a party to the proceeding. The application was refused by the court which stated that there was no change of circumstances and issued a new temporary order of protection effective until 30th January 2020. On 22nd January, the petitioner made an application seeking an order of mandamus directing the Bronx Criminal Court to conduct an evidentiary hearing regarding the appropriateness, necessity and extent of the temporary order of protection issued in her case.

During proceedings on 30th January, a judge of the criminal court modified the TOP. The court reevaluated the evidence presented and found that there had been previous incidents of abuse by Mayers against the petitioner. The court also found that there was nothing pointing to the petitioner’s involvement in causing injuries to Mayers. Further, it found that Mayers had threatened the petitioner and that he was a drunkard. The court held that under CPL 530.12 (1)(a), it would be inappropriate to require the petitioner not to access the home or business of the person whom the petitioner had children with. On the other hand, an order requiring the petitioner to refrain from any act that would pose an unreasonable risk to the welfare, safety or healthy of any member of the family, particularly the complainant was held as appropriate.

The petitioner in this matter sought to appeal from the order and judgment of the Supreme Court, Bronx County (Kenneth Thompson J) of 16th September 2020.  The court dismissed as moot the petition seeking a mandamus to compel the court to hold an evidentiary hearing concerning the appropriateness, necessity and scope of a temporary order of protection, upon application by the People. The proceedings which were brought under Article 78 of the CPLR were also dismissed. This appeal was lodged at the Appellate Division of the Supreme Court. Justice Webber wrote the judgment to which all other judges concurred.

1.1 The holding of the Supreme Court.

Webber J stated that the judgment of Kenneth Thompson J dismissing the petition for an order of mandamus to compel the criminal court to hold an evidentiary hearing on appropriateness and extent of a TOP as moot and the dismissing the proceedings as moot be reversed with no order as to costs. The petition should have been granted.

1.2 Crawford hearing requirements.

The court stated three factors that must be taken into consideration when making a decision on whether to conduct an evidentiary hearing upon issuance of a TOP or not, which factors form the exceptions to the mootness doctrine. In the existence of any of these factors, an evidentiary hearing must be conducted so that the petitioner does not suffer limitation of a significant right or deprivation of property interests. These factors are; whether there is a likely of repetition between the parties to a case or amongst other members of the public, whether the case involves a phenomenon evading review and whether there are novel and substantial issues which have not been previously passed on. These factors are discussed hereinbelow.

1.3 Whether there is a likelihood of repetition of the issues.

The parties agreed that the matter in issue would not recur with respect to the petitioner herein, but it would amongst the members of the public. The criminal court judge who later issued the limited temporary order of protection stated that it was the court’s practice not to conduct a hearing when a petitioner opposes the prosecution’s application for a temporary order of protection. The office of the District Attorney stated that temporary orders of protection are issued in domestic abuse cases in Bronx. The Supreme Court stated “similar circumstances may arise in another proceeding by someone else in the general public.”

1.4 Whether the matter “typically” evades review.

If the issue typically but not necessarily evades review, then an evidentiary hearing must be conducted (Hearst Corp, 50 NY2d at 715). Pretrial TOPs last for short periods of time between court appearances, usually one to two months. The short duration makes it hard to challenge a temporary order when it is still in effect. (Forman, 145 Misc 2d 115, 122[Crim Ct, NY County 1989]). This temporary nature of the orders of protection tends to insulate them from being challenged and as such, evidentiary hearing must be conducted before the same are issued.

1.5 Whether the issue is substantial or novel.

The courts seem to suggest that the weight of the issue supersedes its novelty. The Courts of Appeals have stated that if an issue is substantial, novelty will not be considered to be a necessary requirement (People ex rel. McManus, 2012, City of New York, 2010). The issue in the case herein is being prohibited from one’s home, albeit temporarily. The effect of this is a risk of losing the apartment that the petitioner acquired through a lease. This would go against the requirement to follow due process. (Forman,1989). The petitioner would also be barred from seeing her two children for over two months. These affects were far reaching.

The circumstances in the case herein are virtually the same to those in the Matter of FW Monroe (Monroe W., 2020). In this case, there was a delay in holding an evidentiary hearing regarding removal of children from the care of their father based on allegations of parental neglect. The court held that the delay interfered with the father’s right and interest in the custody and care of his children and breached due process in the protection of that interest (183 AD3d at 281). The circumstances of the case bring the case under the exception to the mootness doctrine. The issue was substantial and was likely to recur everywhere and evade review, as such, a hearing ought to have been expedited.

1.6 Law regarding temporary orders of protection (TOP) hearing.

When an temporary order of protection is issued, it deprives the defendant of their significant rights and liberties and other interests like an interest in property (CPL 530.12).  There must be a reasonable ground to support issuance of a temporary order of protection. The factors that the court must consider when issuing a temporary order of protection are enlisted in the Criminal Procedure Law. These factors are discussed hereinbelow.

First, the court must consider whether the accused poses a ‘danger of intimidation or injury’ to the victim or complainant (Forman, 145 Misc 2d at 125). Second, the court must consider whether the temporary order of protection shall is likely to achieve its purpose in the absence of such condition or conduct subject to previous orders of protection, previous incidents of abuse, present and past threats and injuries, access to weapons and drugs and substance abuse (CPL 530.12 a).

In the case of Crawford, after filling of 17 prior DIRs that pointed at domestic violence on the petitioner by her spouse, that formed the basis of issuing a limited temporary order of protection by the criminal court.  Third, the court must conduct the hearing after issuing sufficient notice to all parties before the hearing. After the defendant gives information that they stand to be deprived of a right or property interest if a TOP is issued, hearing should proceed in a manner that makes it easy for the judge to determine whether a TOP should or should not be issued, based on the facts presented (Matter of Lopez, 2009, Krimstock, 2002).

1.7 Waiver of statutory rights and restrictions.

According to Black’s Law Dictionary (10th edition), waiver is the voluntary abandonment or relinquishment of a legal right or liberty. Any person wanting to waive their rights must be fully cognizant of the same before purporting to waive them (Manak, 1957). Rights can be waived through estoppel or by election (Halsbury, 4th Edition, vol 45). Parties can also waive rights conferred upon them by legislation. The courts have previously held waiver of statutory rights as permissible so long as the waiver does not infringe on the rights of other people or it is not against public policy and morals (Waman Shriniwas case).

There are however certain limitations to the doctrine of waiver of statutory rights. The jurisprudence from the courts is to the effect that one cannot waive rights that have been enacted for the interest of the public (All India Power Engineer Federations, 2017). This exception is best captured by the Latin maxim quilibet potest renuntiare juri pro se introducte which connotes that all the conditions as stated under statute can be dispensed with as long as such conditions have not been introduced in the statute by the legislature in the interest of the public.

Examination of waiver of statutory rights is done on a case by case basis and is to be determined on the circumstances of each case (Shalimar Tar Products, 1988). The courts have also stated that the intent of the legislator of the statute that governs the right must be examined  to determine whether the legislator contemplated any public interest or otherwise (Lachoo, 1971).  

1.8 Waiver of fundamental rights.

The waiver of fundamental rights is prohibited under the law. The courts have stated that the doctrine of waiver cannot apply to fundamental rights that have been enshrined through public policy or matters that have been enacted pursuant to constitutional policy (Behram Khrushed Pesikaka, 1955). Further, it has been that there cannot be estoppel in respect of rights that have been enacted in line of public policy, that is, fundamental rights (Nar Singh Pal Case, 2000).

In another case, some people who lived at the pavement waived off their right to object to destruction and demolition of their huts (Olga Tellis Case, 1986).They later objected the same while claiming their right under the constitution. The Supreme Court stated that “fundamental rights have been conferred on citizens and some rights granted to non-citizens also, so as to fulfill the aims of the preamble of the constitution. Thus, the fundamental rights, in any case, cannot be waived off by a person as such rights have been constituted in order to safeguard interests which are protected as a matter of public policy.” Fundamental rights are very intrinsic and of much importance to the public and there is an absolute prohibition on waiver of the same, with no exception.  

1.9 Non virtual hearings restriction under CPL 182 and whether the same can be waived.     

The Criminal Procedure Law (CPL) prohibits non virtual hearings or trials. CPL 182.20 provides that, “the court in its discretion may dispense with the personal appearance of the defendant, except an appearance at a hearing or trial, and conduct an electronic appearance in connection with a criminal action…” The proviso to article 182 reads, “provided that the chief administrator of the courts has authorized the use of electronic appearance and the defendant, after consultation with counsel, consents on the record. Such consent shall be required at the commencement of each electronic appearance to such electronic appearance.”

The article provides expressly that physical or personal appearance of the defendant shall be dispensed with for all matters but not hearing or trial. When it comes for hearing or trial, the defendant is required to appear physically in court. There is a debate as to whether on the legislative mandate to give defendants a hearing to determine the issue of grant of a temporary order of protection. The right to appear physically for such hearings or any trial is a fundamental right and therefore, the right should not and cannot be waived.

1.91 Conduct of Crawford hearing around CPL 182.

In Crawford, the Supreme Court stated that hearing should not be conducted in a manner that deprives the defendant of a fundamental right or interest in property. As already observed above, the right to hearing is a fundamental right. If the defendant is not accorded personal appearance during hearing, then their fundamental right is being infringed on. Proper notice of hearing must be given to the parties so that they adequately prepare for the same and the hearing must be conducted in a manner as will enable the court to reach an accurate determination.

The purpose of personal appearance during hearing is to ensure that evidence on record is reevaluated as in Crawford. This is to ensure that the court determines if the issues are substantial as to have far reaching effects on the defendant or if there is a likelihood of recurrence of the issue with respect to the defendant, the parties or among the public. Conduct of hearing under Crawford must be done through personal appearance of the defendant, all other parties and the complainant so as to ensure protection of fundamental rights of the defendant.

1.92 Waiver of rights under CPL 170.

CPL 170.1 provides for arraignment upon information. It states that following the filing with a local criminal court of some information, the defendant must be arraigned thereon. The defendant must also appear personally in court after arraignment save for some circumstances. These circumstances include;

  1. if there is a procedure provided for in law for dealing with offences on which such information is filed, which procedure would dispense with personal appearance, such procedure shall be regarded as valid.
  2. If the defendant’s appearance is required by a summons or an appearance ticket, the court may, for a good cause permit the defendant to appear by counsel instead of in person.

CPL 170.2 provides that upon arraignment of the defendant, the court is obligated to inform them of the charge or charges against them and avail to them a copy of all relevant materials relied on by the prosecution. CPL 170.3 provides that the defendant has the right to access the aid of legal counsel at arraignment and at every stage of proceedings. If the defendant does not have legal counsel because of financial constrains, they shall have a legal counsel assigned to them by court. The defendant can also have the proceedings adjourned for purposes of obtaining a legal counsel.

CPL 170.4 provides that the court should inform the defendant of his rights, accord him the opportunity to exercise them and take affirmative action as is necessary to effectuate those rights. For defendants charged with traffic infractions, the plea of guilt to the offence constitutes a conviction thereof to the same extent as a verdict of guilt after trial. Where the charge sheet is a simplified traffic information, the defendant has a right to have a supporting deposition filed.

The rights to be prosecuted by information under CPL 170 form the basis of the rights to a fair trial. They are fundamental rights. Fundamental rights of the defendant cannot be waived for the reasons discussed earlier. For instance, the right to be informed of the charge or charges against the defendant cannot be dispensed with. These are rights that were enacted in the interest of the public and in line with public policy. Subjecting such rights to waiver would be going against the intention of the legislator of the rights.

2.0 Conclusion.

In the light of the foregoing, it is clear that the decision of Crawford changed the practice of granting a temporary order of protection without judicial examination of the defendant and proper hearing thereof. There are three requirements of hearing as has been set out in Crawford. This requirements form the exceptions to the mootness doctrine. The ‘no virtual hearing restriction’ which confers a statutory right to the defendant cannot be waived as it is a fundamental right. Crawford hearings can be conducted around CPL 182 in a manner that does not deprive the defendant of their fundamental rights and property interests.

Fundamental rights cannot be waived be waived because they were enacted based on protection of public interest and were influenced by public policy. The rights under CPL 170 cannot be waived for the same reasons. A defendant must be heard in person to avoid any deprivation of their fundamental rights. After arraignment, the accused person should be read to in a language that they understand, the charge(s) against them. They must also be accorded enough time to prepare for a defence. The defendant has a right to be present when being tried. Further, the defendant must be informed of the right to be represented by legal counsel.


Barry, Kamins. (2021). The New ‘Crawford’ Hearing: What Will It Look Like? Available at 

Andrew M. Criminal Procedure Law. New York State Law. New York Laws By

RPV Legal. (2020). Waiver of Right: An Indian Scenario. Available at 

Law Insider. Waiver of Statutory Rights Simple Clauses. Available at 

Halsbury’s Laws of England. 4th Edition, Volume 45.

At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )