NY Criminal Defense – Order of Protection and Restraining Orders in New York: Returning Home

You have been arrested because you got into a fight with your girlfriend or wife. Maybe there is a reasonable explanation or your girlfriend does not want to “press charges.” Unfortunately, at this stage it doesn’t matter. You are now before a judge and whether or not you are released, you must completely stay away from the complainant.

Judges throughout New York (Brooklyn, Bronx, Manhattan, Queens and Staten Island) routinely issue “full” orders of protection after a request is made by a prosecutor at arraignments.While there is much at stake at your arraignment, a “full” order of protection may prevent you from entering your own home. Therefore, it is never too early to retain a skilled criminal defense attorney to preserve and protect your rights.

A “full” order of protection or “restraining order” is a an order by the court preventing you from having any contact at all with the complainant or alleged victim of a crime. This could mean that if you live together you may not enter the home. Alternatively, the police will arrange a time for you to enter and get some of your things. You will not be able to call the complainant or talk to the complainant even if she calls you. The burden placed upon you is quite severe.

In the event you are unable to enter your own home due to the “full” order of protection, a criminal defense attorney should request a Foreman Hearing. A Foreman Hearing is a two stage hearing where your criminal defense attorney must establish that you have certain personal property rights that will be “directly” or “specifically” affected as a result of the order of protection. Assuming that is established, the court must then decide if there is a “danger of intimidation or injury.”

If such a hearing is granted, your criminal defense attorney will be able to cross examine the prosecution’s witnesses. Not only does this give you the opportunity to challenge the prosecution’s claims, but to establish inconstancies in the prosecution’s case. The ultimate goal in this setting, however, would be to permit you to enter your home and limit the order of protection.

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