Domestic violence is a general term describing various crimes and offenses committed between spouses or former spouses, between parent and child, or between the members of the same family or household, as this term is defined in the New York Family Court Act (“FCA”). Domestic violence crimes include crimes committed not only between spouses or former spouses, parents, and children but also between the people who are involved in an intimate relationship, people who have a child in common, and even former boyfriends and girlfriends.
Sometimes arguments within a family escalate to physical violence, and this is when somebody calls 911 and the police get involved. According to police guidelines, if a police officer determines on the scene that domestic violence offense took place, he or she must make an arrest. Oftentimes, people do not realize that calling the police and reporting a domestic violence incident will most likely cause an arrest of their family member or an intimate partner, that an Order of Protection will be issued by a Judge at arraignment in Criminal court, and that the resolution of this case and thus return of their family member home may take several months. Domestic violence crimes include such charges as disorderly conduct, assault, menacing, harassment, criminal mischief, sex offenses, stalking, reckless endangerment, identity theft, grand larceny, and coercion. Domestic violence crime may be a misdemeanor or a felony pursuant to New York Penal Law (“PL”).
Sometimes we deal with domestic violence cases where a complaining witness wants to stop criminal proceedings and “cancel” an Order of Protection. It is essential to understand that a criminal case is not a matter between two private parties. The defendant is being sued in a criminal court by an appropriate District Attorney’s office on behalf of the People of the State of New York. While a prosecutor generally is obligated to consult with a complaining witness regarding their wishes towards a resolution of a criminal case, it is ultimately in the DA’s discretion whether to offer a defendant a plea deal or insist on holding the Defendant to the charge (i.e., offering no deals) and, if necessary, take the case to a jury trial to prove defendant’s guilt. Because of that, a complaining witness, who initially called the police and made the report regarding the incident of domestic violence, cannot simply stop the proceeding and vacate an Order of Protection. This could be done only by Criminal Court Judge.
Almost certainly, following the arraignment of a Defendant on domestic violence charges, a Judge will issue a full stay-away Order of Protection against the Defendant and in favor of a complaining witness. That means that Defendant would not be able to return back home until such order is amended by the Court, with an exception of special permission by the Court, when requested, to pick up his/her personal belongings in the presence of and with the escort of a local police officer within a timeframe specified by the Court. Full stay-away Order of Protection prohibits Defendant from not only seeing or approaching the protected person but also contacting that person by electronic means, through social media, or even through third parties, such as common friends or relatives. The resolution of domestic violence criminal cases often involves anger management or alcohol treatment classes, and some form of final Order of Protection. The goal of an experienced criminal defense attorney is to avoid a final stay-away Order of Protection for the client and to resolve the matter with a limited “do not harass” Order of Protection (or vacate it completely) that allows Defendant to communicate with a complaining witness but prohibits him/her from committing additional offenses. It is worth mentioning that a violation of an order of protection is a crime itself – Criminal Contempt. It can be either a misdemeanor or a felony. Criminal contempt cases from the perspective of the prosecution, oftentimes are stronger and easier to prove for the prosecutor, than the underlying domestic violence charge. If the police were called and observed Defendant in the vicinity of the complaining witness, or if Defendant attempted to call, write, or otherwise electronically contact the protected person, usually there is an undeniable trace of such contact. Coupled with an existing Order of Protection, the proof of such contact is enough to convict Defendant of the criminal contempt charge.
Domestic violence arrest and prosecution may have far-reaching ramifications for the Defendant, so it is essential that people contact experienced attorneys handling these matters. If you have questions, please contact our office for a detailed consultation.
Sharifov & Associates, PLLC. 516-505-2300 718-368-2800 SharifovR@LawfirmSR.com
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