Arrest for Domestic Violence

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.

Family-offense reports can lead to an arrest, criminal case, Family Court petition, or more than one proceeding. New York requires arrest in specified circumstances when an officer has reasonable cause; it is not an unqualified rule whenever an officer believes domestic violence occurred. A criminal court may issue a temporary order of protection in a pending family-offense case, but the court sets its terms and an order is not automatic in every case. The alleged offense may be a misdemeanor, felony, or noncriminal violation. An arrest or temporary order is not itself a conviction-based immigration removal ground; the federal effect depends on the later disposition and any qualifying order violation. Official source

When a domestic-violence allegation is prosecuted as a misdemeanor, the firm’s New York misdemeanor case guide explains the general court process and possible dispositions.

Common Domestic Violence Charges in New York

New York has no single crime called “domestic violence.” The police and prosecutors charge specific offenses, and the case is treated as a domestic violence case because of the relationship between the people involved. Common charges include:

• Assault in the third degree (Penal Law § 120.00): Class A misdemeanor. More serious assault charges are felonies.
• Criminal obstruction of breathing or blood circulation (Penal Law § 121.11): Class A misdemeanor.
• Strangulation in the second degree (Penal Law § 121.12): Class D violent felony.
• Menacing in the second degree (Penal Law § 120.14): Class A misdemeanor.
• Aggravated harassment in the second degree (Penal Law § 240.30): Class A misdemeanor, often based on calls, texts, or messages.
• Harassment in the second degree (Penal Law § 240.26): a violation, which is not a crime.
• Criminal contempt for violating an order of protection: second degree (Penal Law § 215.50) is a Class A misdemeanor, and first degree (Penal Law § 215.51) is a Class E felony.
• Criminal mischief: damaging property, such as a phone or a door.

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 prosecuted in criminal court by the 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 a Criminal Court Judge.

In a pending family-offense case, a criminal court may issue a temporary order of protection and may impose stay-away, no-contact, or other conditions permitted by law. Whether an order is full or limited, whether a person may return home, and whether a final order is entered depend on the court’s order and the case record. The protected person cannot waive or modify an order; the person subject to it must comply unless the court changes or vacates it. A knowing or intentional violation can lead to contempt charges, but the prosecution must prove every element. For immigration purposes, an order alone does not make a person deportable; a protection-order violation may do so only if INA § 237(a)(2)(E)(ii) is satisfied. Official source Learn more about the immigration consequences of criminal charges.

Domestic Violence Cases in Brooklyn, Queens, Manhattan and Nassau County

A domestic violence case usually begins with an arraignment in the criminal court of the county where the arrest took place, where the judge decides whether to issue a temporary order of protection. Our court guides explain what to expect in each court:

• Brooklyn: Kings County Criminal Court, 120 Schermerhorn Street
• Queens: Queens County Criminal Court, Kew Gardens
• Manhattan: New York County Criminal Court, 100 Centre Street
• Nassau County: Nassau County District Court, 99 Main Street, Hempstead

When the same incident also leads to a Family Court case, the two cases can proceed at the same time. Our article on domestic violence in Criminal Court and Family Court explains how they interact. We meet clients at our Brooklyn office and our Hempstead office, and outcomes in past cases handled by the firm are listed on our case results page.

Related articles: a Family Court petition for an order of protection.

Speak With a Domestic Violence Defense Attorney

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.