How do I get an Order of Protection in New York? Do I have to go to the police, such as the NYPD, to apply for a Restraining Order? What are the steps and whatever they may be, am I eligible for a Stay Away Order? All reasonable questions, the answer to whether you are entitled to an Oder of Protection (“entitled” may or may not be the correct word in this context) and whether a judge will issue one depends on many factors. Before briefly addressing the answer to your questions in this blog entry, and discussing further with your attorney should you determine you are a candidate for a Restraining Order in New York, keep the following in mind. A Restraining Order, Stay Away Order and Order of Protection are different names for the same order issued by a court. No matter what you call this mechanism to protect you from another person, in the State and City of New York, there are generally two avenues to secure an Order of Protection. A Criminal Court Judge can issue a Restraining Order after the arrest and during the arraignment of a criminal defendant and Family Court Judge can issue an order in a civil proceeding pursuant to the New York State Family Court Act Article 8.
The questions is a common one. “How do I get an Order of Protection in New York?” “Who can get a Restraining Order in NYC?” “Do you need a lawyer to get an Order of Protection?” Before answering these questions, know the following. Family Offense Petitions in New York Family Courts, pursuant to New York Family Court Act Article 8, are some of the most frequently dismissed petitions on technical grounds – most commonly, failure to state a cause of action, or “facial insufficiency.” This essentially means that the Petitioner, the person making the allegation and the one seeking an Order of Protection, aka, Restraining Order, has failed to allege facts that make out one of the many enumerated offenses that constitute a Family Offense. Simply, if you are frightened for your well-being to the point where you commence a legal action whether its in New York City or the Hudson Valley, you will either ensure it is done correctly or deal with the potentially tragic consequences of not engaging an NYC Order of Protection lawyer to ensure the same.
NY Family Court Orders of Protection: Court’s Initial Legal Standard and Review
Whether you have asked it of a New York Family Court attorney, criminal defense lawyer or merely thought it to yourself, if you are a victim of abuse you have likely pondered how you can get an Order of Protection. What steps must you take to keep your abuser away and how do you start the process of protecting yourself with the assistance of the court system? While not an easy answer, when boiled down to its core, there are generally two avenues you can pursue to secure a Restraining Order or Stay Away Order in New York. One begins in the New York Family Court and the other with the police or District Attorney. Not mutually exclusive, the former does not mandate an arrest while the latter requires law enforcement’s involvement. This blog entry, as a follow up to an earlier article addressing other questions, identifies frequently asked questions so you, as a petitioner in a Family Court Article 8 proceeding or complainant in a criminal case, can obtain the basic information you need to have informed conversations with the lawyer you ultimately retain.
New York Orders of Protection, also called Restraining Orders and Stay Away Orders, are critical tools to protect the beneficiary of such an order from alleged or convicted harassers, domestic abusers, stalkers and other victimizers. Irrespective of who an Order of Protection shields, there are many questions that those unfamiliar with both New York Family Court Law and New York Penal Law will need answered before retaining the right criminal lawyer or Family Court attorney to assist them in the respective Restraining Order process. First and foremost, who can get a Restraining Order in New York State? How can you get an Order of Protection in New York City and the Hudson Valley? What does a Stay Away Order actually do for the recipient? Simply, there are countless questions that any crime victim or domestic violence petitioner must address to determine if and how they can protect themselves with an Order of Protection and why he or she needs an attorney to facilitate the legal process. Addressed in this blog entry, as well as additional articles, these questions include:
- What is an Order of Protection and Restraining Order?
- Where do I go to file a petition for a New York Order of Protection?
- How do I get a Family Court Order of Protection in New York?
- Can anyone get an Order of Protection or Restraining Order?
- Will the recipient of an Order of Protection have to move out of our home?
- Is a Order of Protection issued in New York only valid in New York?
- What is the duration or length of an Order of Protection?
- Will an Order of Protection appear or show up on an employment or background check?
- Is it a crime to violate an Order of Protection?
- Can I drop an Order of Protection if I decide I do not want it anymore?
Only some of the relatively common questions asked by both petitioners in Family Court Order of Protection proceedings and victims in any number of New York’s Criminal Courts, it is critical to understand the different types of and processes involved in securing New York Restraining Orders, Stay Away Orders and Orders of Protection.
Orders or Protection are perhaps the most frequent basis for Criminal Contempt charges in New York. Such charges and criminal cases have become so routine, that the actual complaints charging a defendant with such an offense can become so pro forma as to become almost meaningless. However, the accusations in even the simplest, most routine criminal complaint are of critical importance to a New York Criminal Contempt arrest and case. One way in which a person can violate the terms of a typical Order of Protection is by going to the protected person’s home. This can even include standing outside the front door of the protected person’s apartment building. Irrespective of the context, it is possible that the protected person is not willing to cooperate with law enforcement, and did not want the defendant arrested in the first place. In that scenario, the prosecution will often attempt to rely on other witnesses to the crime, such as family, friends, bystanders or police officers. However, this can often create gaps and shortcomings in information and support for the allegations, which can manifest themselves in the criminal complaints themselves. This was precisely the situation presented to the trial Court in People v. Friedman, 48 Misc.3d 817 (Queens Co. Crim Ct. 2015).
New York Penal Law 240.75 is a section of New York’s criminal law that is somewhat of an unknown in the non-legal community. There is much support behind the concept that if you repeatedly commit and are convicted of domestic violence crimes or family offenses, at some point an order of protection and some degree of incarceration in a local or county jail is not enough.
To combat this concern, New York State created the crime of Aggravated Family Offense pursuant to New York Penal Law 240.75. Whether your New York domestic violence lawyer advises you on this statute or you missed the opportunity and you are standing before a criminal court judge for sentencing, know that your exposure on this class “E” felony is quite serious. In fact, what was only a misdemeanor punishable by up to one year in a county jail can no be a felony with a potential sentence of up to four years “upstate.” If you have a prior felony regardless of whether its violent, domestic or white collar and you were convicted of that offense in the prior ten years, because Aggravated Family Offenses are class “E” felonies, a conviction would not merely be as great as four years, but you would also face a mandatory one and a half to three years in prison. Regardless, living within the confines of the New York State or local county department of corrections for any period of time is a miserable way to tick away the days of your life.
Misdemeanor and Felony Criminal Contempt crimes and charges in New York, New York Penal Law 215.50 and New York Penal Law 215.51 respectively, often arises in the context of alleged violations of Orders of Protection. An Order of Protection is often issued by a Criminal or Family Court, and orders one person to refrain from contacting or being near a specific protected person or persons. In order to charge a person with violating an Order of Protection, the criminal complaint against that defendant must adequately allege the identity of the protected person, as well as what the defendant allegedly did that violated the terms of the Order of Protection. It may seem obvious that the prosecution must specify who the acts were committed against, and how they know that’s who it is, but a failure to make that allegation sufficiently was exactly the issue presented to the trial Court in People v. Pandiello, 54 Misc.3d 496 (NY Co. Crim Ct. 2016). This entry will address the significance of a protected party’s identity when prosecutors charge any one of New York Penal Law sections 215.50, 215.51 or 215.52.
In the State of New York, if you commit a crime the police can arrest you and a local District Attorney can prosecute you for your alleged illegal conduct. For example, if you ball up your fists and intentionally take a swing at another person’s face, it is likely you would find yourself in front of a judge charged with Third Degree Assault if you gave that person a “shiner.” While not available to all complainants or victims, if you were the recipient of that drubbing and you have an intimate or domestic relationship with your attacker, you may pursue another means to hold your attacker accountable while providing yourself with security and safety going forward. In lieu of or in addition to the criminal justice system, New York’s Family Court Act may be your answer and enable you to obtain an order of protection or restraining order.
As a preliminary matter, and one you should consult with your New York order of protection lawyer or Family Court attorney, you must have a domestic relationship (“member of the same family or household”) ranging from current or former boyfriend or girlfriend to sibling or spouse. Assuming the New York Family Court has jurisdiction over your matter, as a petitioner (similar to a complainant), you can file a petition for an order of protection by setting forth violations of Section 812 of the New York Family Court Act. This section sets forth the offenses, aka, crimes, your lawyer will use as the foundation of your petition. With this in mind, what are the offenses listed in Family Court Act 812 and how to they compare to their brethren offenses in the New York Penal Law?
I need a restraining order. How do I get an order of protection? A simple question deserves a straightforward answer, but unfortunately, as your lawyer likely can attest to, the law is not always cooperative on that front. Certainly, if you are a victim of a crime and an order of protection is warranted, upon arrest and prosecution in New York, most judges will issue an order of protection. However, not all cases require the full force of the criminal justice system nor do complainants (you, the victim) want to pursue criminal charges. Enter the New York Family Court Act. The vehicle to secure an order of protection for those who are members of the same household or family, New York’s Family Court is where you would go to get a non-criminal order of protection.
Now that you know where you can go to get a restraining order in New York, the follow up question gets more complicated. Who can avail themselves of Family Court restraining order? The answer, if you noted above, are those petitioners (victims or complainants) who the court statutorily classifies as “members of the same household or family.”
There are few worse things than being accused of a crime you did not commit. Even more upsetting is if the crime you are arrested for in New York involves an accusation of Domestic Violence, Assault and Child Endangerment. Sadly, when marriages go south and divorces get nasty, criminal lawyers see the ugly side of false claims, unnecessary arrests and orders of protections that are used not because they are genuinely needed, but one spouse wants to manipulate the system for his or her own gain.
Unfortunately for a recent client of the New York criminal lawyer at Crotty Saland PC, the above scenario played out where her spouse accused her of Third Degree Assault, NY PL 120.00, in front of their children. Not only was she charged with PL 120.00, but because the children were allegedly present she was also arrested for Endangering the Welfare of a Child, NY PL 260.10. Compounding matters well beyond these two class “A” misdemeanors, the court issued an order of protection in favor of her husband and children despite the fact that although unknown to the District Attorney’s Office at the time, the complainant fabricated the incident.