To begin, there is no crime in the New York Penal Law entitled "domestic violence." Instead, "domestic violence" is a classification given to any number of crimes under the New York Penal law when the crimes are committed against someone who is a member of the same family or household. This extends to people who:
1. are related by consanguinity or affinity; 2.are legally married 3. are formerly married 4. have a child in common, or 5. have been in an intimate relationship even if not living together
Generally, the New York crimes under the penal law that can be considered domestic violence include
1. Violations of New York Penal Law Sections 120.00-120.12 (assault offenses)
2, Violation of New York Penal Law Sections 120.13 - 120.15 (menacing offenses)
3. Violations of New York Penal Law Sections 120.45 - 120.60 (stalking offenses) and
4. Violations of New York Penal Law Sections 121.11 - 121.14 (strangulation offenses).
5 Violations of New York Penal Law Sections 240.26-240.30 (harassment offenses)
The above list contains offenses ranging in seriousness from harassment under New York penal law 240.26--which is just a violation and not a crime--all the way to Assault in the First degree under penal law 120.10, which is a B felony punishable by 5 to 25 years in prison. Every offense listed above can be classified as a domestic violence offense if there is a domestic, intimate or familial relationship between the accused and the complaining witness. If there is no such relationship then the offense is still charged but without the domestic violence classification. (For example, If someone attacks a stranger on a train they might be charged with assault but it would not be classified as domestic violence).
THE DREADED FULL ORDER OF PROTECTION AND WHY IT IS IMPORTANT TO HAVE A DOMESTIC VIOLENCE LAWYER RIGHT AWAY!
Whenever one of the above offense is classified as domestic violence, the prosecutor almost always asks for an order of protection aka a "restraining order" against the accused. Orders of protection can be either "full" orders or "limited" orders. A full order of protection is a court order forbidding the accused from having any contact whatsoever with the complaining witness. If the complaining witness and the accused live together, the accused cannot return to the residence while there is a full order of protection in place. When a full order of protection is in place, the accused cannot call, text or even Facebook the complaining witness On the other hand, a "limited" order of protection does not prevent the accused from living with or contacting the complaining witness and the limited order will just forbid any offensive contact. In fact, a limited order of protection does not really forbid any conduct that is not already illegal, so limited orders are usually not a major problem in a domestic violence case.
On the other hand, full orders of protection create significant problems for domestic violence clients and any good New York defense lawyer knows that in domestic violence cases, the prosecutor will usually ask for-- and the Court will often impose a "full" order of protection. Having a good and well-prepared domestic violence lawyer at the first court appearance may increase the chances that the "full" order will not be imposed. Full orders of protection are an incredible nuisance to clients and their loved ones in domestic violence cases and often create incredible hardships for couples and their family members who are living together and wish to remain together. These full orders become particularly difficult when there are children in the household and the accused and the complaining witness both share parental duties.
Having a good domestic violence lawyer available to argue against the full order at arraignment is extremely important because once the court orders the full order it usually stays in effect throughout the pendency of the case. Lawyers can have difficulty at later court dates trying to undo any previously imposed full order or have it reduced to a limited order.
Unless there is a significant change in circumstances, a full order of protection that is imposed at the first court appearance will often remain in force until the case is settled either through an acquittal after trial, a plea, a family ACD or a speedy trial dismissal. Prosecutors have very little incentive to agree to a reduction from a full to a limited order because they know that the full order puts pressure on the accused to settle the case. Oftentimes, the prosecutor will only agree to change from a full to a limited order upon agreement by the accused to plead guilty to something or to accept a family ACD. Full orders of protection help prosecutors move their cases. Likewise, judges are also hesitant to change a full order to a limited order without the consent of the prosecutor because judges have little to gain and plenty to lose by changing the full order to the limited. If they reduce an order without the prosecutor's consent and the accused then harms the complaining witness the judge's career on the bench can be placed in jeopardy. It happens.
Since a New York Domestic violence case can remain pending for many months and sometimes longer than a year--and during this time the accused will have to move out and find a new place to live if a full order is in place--it is critical that the domestic violence lawyer is hired and comes to court fully prepared at the first court appearance to argue against the full order of protection. It is really the most critical time to make a good argument against the order of protection. Afterwards, the defense lawyer, whether in New York City or elsewhere, will have a tough road convincing a judge over the prosecutor's objection that the full order is not necessary to ensure the safety of the complaining witness.
Of course, Domestic violence lawyers know that domestic violence cases involve instances of obvious violent abuse occurring in the home. In these types of cases, a full order of protection is absolutely necessary for everybody, including the client's protection and the lawyer serves his client best by keeping the client away from the home and into anger management and/or drug or alcohol therapy right away.
But then there are those cases where there was just an isolated argument between partners and a full order of protection is not necessary. For example, an argument in an otherwise loving and peaceful home that just got a little bit too loud. Then, perhaps one partner--not out of fear but out of momentary anger at the other partner hastily called 911. The cops arrived and now the partner who called the police watches helplessly as their loving partner is led away to the precinct in handcuffs. The partner who called 911 deeply regrets taking that hasty action and the last thing they would ever want is for their partner to be forbidden from coming back into the home. It is the type of case where a good argument can be made that valuable court resources could be better spent elsewhere
It is in these latter types of domestic violence cases where the well trained and well prepared New York domestic violence lawyer can bring facts to the court's attention to try and avoid the full order of protection. In cases like these, the lawyer has plenty of ammunition to make a good argument because there are no injuries or past history of abuse and the complaining witness is usually cooperative with the defense attorney and does not wish to prosecute, Accordingly, the complaining witnesses wishes must be brought to the court's attention along with all the other pertinent facts at the first court appearance in order prevent the full order of protection from being imposed.
In any event, the lawyer must always instruct the accused that regardless of whether the court imposes the full or the limited order, it is important that the client accused of domestic violence must fully obey the order. Otherwise, the client may be re-arrested on a contempt of court charge or perhaps even something more serious.
How New York lawyer can get the domestic violence charges resolved.
Briefly, there are many ways that a lawyer can resolve a domestic violence charge for their client. But it is necessary that the lawyer fully grasp 1) the client's needs and wants 2) the strength of the People's case 3) the office policies of the prosecutor and the individual policies of the prosecutor handling the case.
1. Resolving the case through a Family ACD.
In many instances, the prosecutor will eventually offer the client a Family ACD. With the family ACD, the domestic violence client agrees to do a program such as an anger-management or an alcohol treatment program (if alcohol was involved). Usually a family ACD last for a year and during that year the client agrees to participate and complete whatever program is agreed upon and agrees to abide by a limited order of protection. The family ACD is often a good deal because it allows for the charge to be completely dismissed at the end of the ACD period. This means that the case will be sealed pursuant to CPL 160.50
2. Pleading to the reduced charge of disorderly conduct under CPL 240.20.
People who were charged with domestic violence assault often plead guilty to CPL 240.20 when the prosecutor refuses to offer the family ACD. Choosing this outcome instead of trial has to be weighed very carefully because the 240.20 is only partially sealed and this means that background checkers might have access to the court file where they would be able to learn that the original charge was a more serious assault, or aggravated harassment or menacing charge
Even people who pleaded to the reduced charge of disorderly conduct call complaining that the disorderly conduct conviction is causing them problems. Sometimes a prospective employer wants to see the original charge. Although the disorderly conduct charge is sealed, it is only the "partial" seal under CPL 160.55. This partial seal means that while the arrest records are destroyed, the court file remains permanently open and accessible to nosy background checkers. The background checkers are free to go to the court and look through any part of the file that is public record. This includes the original complaint.
3. Getting the case dismissed through CPL 30.30 (Speedy trial)
Any good New York defense lawyer knows that New York Criminal Procedure Law 30.30(1)(b) requires that a prosecutor announce ready for trial on a misdemeanor within 90 days from the client's first court appearance. A prosecutor cannot announce ready unless the prosecutor has converted the criminal complaint into an information and has the witnesses available for trial. In many domestic violence cases, since the complaining witness is often opposed to the prosecution, the prosecutor often has difficulty announcing ready for trial within the 90 day period.
If you have questions call me at 212-786-2999 for a free consultation.