Orders of Protection and Restraining Orders: A Valid Criminal Defense if the Criminal Case Occurs After a Family Court Disposition

Generally, one violates an order of protection and is guilty of Criminal Contempt if one fails to abide by the regulations set forth in the order of protection / restraining order. Unfortunately, as the NY criminal defense attorneys and former domestic violence prosecutors at Crotty Saland PC, can tell you, there are often countless issues that come to the forefront in these cases that require a skilled attorney to resolve. One interesting issue that arises is whether a prior finding of guilt in Family Court for violating an order protection precludes a criminal prosecution for Criminal Contempt on the same matter. In other words, does double jeopardy apply?

The general answer to this question was answered by the Court of Appeals in People v. Wood, 95 NY2d 509 (2000). In that matter, the defendant made phone calls and harassed the complainant in violation of both a Family Court and Criminal Court order of protection. The offense before both courts related to the same conduct. The Court of Appeals held that the finding of contempt in Family Court triggered double jeopardy protections because that finding of contempt, although not criminal, is punitive in nature. Therefore, the prosecution was prevented from commencing a criminal action for Criminal Contempt under the same set of facts for the same set of circumstances.

Although the above rule is a general rule as applied to the same conduct violating the same provisions of two distinct orders of protection, certain factors alter this rule. In fact, recently in Wylie v. Fountain, 304 AD2d 872 (3rd Dept. 2003), the 3rd Department came to a different conclusion that double jeopardy did not bar a criminal prosecution where different parts of the orders of protections were violated. Obviously, the waters surrounding these types of cases are treacherous. Is the alleged action the same or distinct? Is there a violation of one provision or multiple? Whatever the circumstance, retain experienced criminal counsel to navigate these waters and protect your rights, integrity and liberty.

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