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.”
My former girlfriend won’t stop calling and harassing me. Can I get a Family Court order of protection? My ex-husband comes to my office and house without my permission. He is scaring me and I am afraid I will lose my job. Can I get a restraining order in Family Court or is my only choice to have him arrested? The short answer to these questions is if you live in Westchester County or the person harassing, threatening or stalking you resides or commits these or other violations of the New York Family Court act in White Plains, Yonkers, Somers, Bedford, Scarsdale, New Castle, Armonk, Yorktown, Bronxville or Irvington, to merely name a few Westchester towns and cities, you can file a petition in Family Court for an order of protection. While the process for the most part is the same whether you are requesting a restraining order in Rockland Family Court, Putnam County Family Court, NYC Family Court or Westchester County Family Court, any request for an order of protection starts in the Westchester County Family Court located in White Plains.
Whether you are a petitioner (complainant) or a respondent (defendant), you should understand the law and how it is applied in Family Court. Remember, while the criminal courts are obviously criminal, Family Court is a civil forum and pursuing your rights in court does not preclude you from doing the same in the other. Merely a brief explanation regarding process and procedure, this blog nonetheless is valuable to both petitioners and respondents with pending actions for restraining orders in Westchester County.
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.
The names and places may be interchangeable, but the questions regarding how to get a Family Court order of protection or restraining order in Rockland County, New York all come down to the same thing. I need a restraining order against my ex-husband in New City, what is a petition? Where do I get a restraining order against a former girlfriend if I live in Nyack? I moved from Orangeburg to Nanuet, how do I get either a restraining order or an order of protection if I still reside in Rockland County, but my ex-boyfriend lives in Westchester County?
Assuming you reside in Rockland County or incidents transpired in Rockland County that violate the New York State Family Court Act (generally certain crimes found in the New York Penal Law), a victim of certain otherwise criminal acts can file a petition in Rockland Family Court requesting that a Family Court Judge issue a temporary order of protection in your favor and against a family member. These family members can include a current or former spouse, boyfriend or other person with whom you have had an intimate relationship. Additionally, the other party can be of the same sex, a cousin or parent as well as any other immediate relation.
New York Blackmail and Extortion comes in different “flavors” and “sizes”. These cases are often as unique as the circumstances, victims and perpetrators. Often, when there is an extortion, threat of embarrassment, demand for money or mere harassment, a victim is hesitant to go to the police even when the law is clearly on his or her side. Similarly, there are situations where the harassment, emails, calls, threats, demands, stalking or other conduct may actually skirt violating the New York Penal Law. Call the police anyway? Risk your business, name or family relationships? Are there other options that can potentially put an end to this misery? Simply, when does a victimizer’s actions violate the New York Penal Law and what if anything should, or can, you do?
This blog entry will not serve as a substitute for an in depth analysis of your particular case. In fact, it in no way will address your case but instead identify potential issues and how you can take control of a situation that may derail your life if you let it fester and grow.