During this challenging time of Covid-19 pandemic and resulting Stay at home Orders covering 90% of the United States population, there have been reports of increased rates of domestic violence arrests in New York and elsewhere in the country. This is understandable, because people are locked down in their homes, and are under tremendous stress and anxiety. Without excusing the acts of domestic violence whatsoever, it is expected, that issues that couple had during “normal” time, would get exacerbated by the forced quarantine. Economic uncertainty, steep rise in unemployment and emotional stress related to this public health emergency, sometimes results in people being arrested for domestic violence. Today, we would like to talk about the legal consequences of the domestic violence arrest and how experienced New York criminal defense lawyer can help.
What happens when I call the police and report domestic violence?
While we believe that every single incident of domestic violence should be taken seriously, people should be aware of the ramifications of calling the police. According to New York police guidelines, an officer must make an arrest in case of credible domestic violence allegation. Sometimes, people call the police thinking that the officers would just reprimand the violent person, issue a warning similar to one that sometimes issued during the traffic stop, so the person would change their behavior. This is not so. Once a police officer has enough information to believe that domestic violence crime occurred, he will be required to make an arrest. Following the arraignment (first court appearance in a Criminal court), the Judge most certainly will issue a stay away Temporary Order of Protection (“TOP”), prohibiting the defendant accused of domestic violence crime from returning home or even communicating with the complainant. Sometimes, our clients are asking us, how the domestic violence allegations can be proven? Officer did not witness it, and there is no audio or video recording of the alleged assault. The reality is, that in New York State, similar to other states, it is enough for the complaining victim to tell the police officer that the victim was assaulted. At least, it is enough to make an arrest, particularly if such report of domestic violence is corroborated by the visible body injuries, such as bruises and scratches or even marks on the body of complainant and/or visible damage in the house.
Can a domestic violence charge be dropped?
The short answer is no. Once you make a report to police, it is registered with police department, and domestic violence officer or detective is assigned to the case. By law and police guidelines, the police are required to investigate any reported incident of domestic violence. Once an officer or detective talks to the complaining victim, the suspect, and/or neighbours, he or she will make a decision whether to believe that the crime was committed. Once such a decision is made, NYPD (if the case originated in New York City) will issue so-called I-card, which is similar to arrest warrant but does not require the Court’s action.
Often time, police will attempt to call the suspect and try to get admission over the phone. They will also ask the suspect to come down to police precinct to “answer questions” or to “talk about the incident”. Usually, police will not outright admit that they are looking to arrest the suspect. Once the suspect reports to a police precinct, he or she almost certainly will be arrested.
But what if the victim changes his or her mind and does want the arrest anymore (or maybe never wanted the arrest to happen in the first place)? For the most part, it is too late. You cannot simply “drop the charges”, once the report is made, despite the fact that this phrase is often used on TV and in the movies. The criminal case is not between two private parties. It is rather a State (e.g. People of the State of New York) against the individual. It follows, that the victim (who is sometimes called complaining witness) is not a party to the case. What can be done, though, if the victim just does not want to go ahead with the case and simply wants for his or her significant other to come back home? You should contact experienced New York Criminal Defense lawyer and see how he can help. While it is true, that you cannot simply drop the charges, you definitely may express your position to the District Attorney’s office, who is prosecuting the case in Court. You should make your position clear, despite potential pressure from the DA’s office, that has its own rules and guidelines regarding domestic violence cases. If you want your loved one to come back home, you should communicate to the District Attorney’s office that you are not asking for any Order of Protection, or at least that you are OK with a limited order of protection, rather than full, stay-away order. You should clearly communicate that you do not want to press charges, meaning that you will not cooperate with the prosecution. Of course, before expressing your wishes to the District Attorney, you must carefully consider your own safety and the safety of your minor children, if any, that were affected by the acts of domestic violence.