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.
UPDATE: WEINSTEIN INDICTED BY MANHATTAN GRAND JURY
According to a statement released by Harvey Weinstein’s counsel and widely reported throughout the media, the former producer, and arguably the most visible catalyst of the #Metoo movement, will not testify before a Manhattan Grand Jury where he will likely be charged with numerous violent felony offenses. According to Weinstein’s attorney, the accused mogul will not testify because prosecutors “unfairly denied [Weinstein] access to critical information about this case that [he] needed to defend him[self] before the grand jury[.] Mr. Weinstein’s attorneys decided that there was not sufficient time to properly prepare Mr. Weinstein.” Weinstein’s statement further read that due to “[n]ot having access to these materials is particularly troubling in this case, where one of the unsupported allegations is more than 14 years old and the Rape allegation involves a woman with whom Mr. Weinstein shared a 10-year consensual sexual relationship that continued for years after the alleged incident in 2013[.]”
Although some of the above statement likely has merit, keep in mind that prosecutors are not mandated to share all their evidence to a defendant at this stage in the legal process. A bit of a play to gain some favorable public support by asserting a lack of fairness on the prosecution’s part is certainly one defensive strategy, but not the sole or central reason Weinstein is not testifying. Instead, what is not contained within the four corners of a press release or public statement is likely why Weinstein is shrewdly refusing to exercise his right to testify.
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.
One of the fundamental distinctions in Family Law that often goes overlooked by the lay person and is only truly understood when a Family law attorney or New York child custody lawyer is consulted, is physical vs. legal custody as addressed in New York Family Court Act Article 6. Generally speaking, physical custody has to do with where the child or children primarily reside, and legal custody has to do with decision-making and child-rearing issues. While joint physical is fairly uncommon, due to the obvious practical difficulties for a child in many common circumstances, so-called “joint” legal custody is much more frequently ordered and/or agreed to. To a substantial degree, getting the visitation or “parental access” right is critical to making joint custody work.
According to multiple reports, initially broken by courtroom sleuth and NY Daily News reporter, Shayna Jacobs, Harvey Weinstein is set to turn himself in on Friday to the Manhattan District Attorney’s Office for arrest and prosecution. Although it is not clear at the time of this writing whether the infamous movie mogul is being charged by way of a felony complaint or indictment, the latter being worse than the former, the notoriety surrounding Weinstein’s alleged sexual predation and his personification of #Metoo have come back to bite him the proverbial ass. Regardless of what ultimately happens, and I remind everyone that as ugly as the allegations have been he is entitled to the same presumption of innocence as any one of us, if Lucia Evans is the complainant for forced oral sex, there are numerous sex crime related felonies and misdemeanors that the disgraced filmmaker may or will likely face. Again, I have no direct knowledge of who the victims might be, what information, if any, prosecutors presented to a Grand Jury or drafted on a felony complaint, or what the evidence the District Attorney possesses. As such, the potential crimes address in this blog may be completely or partially accurate and are, at this time, based on various historical and current news reports.
With a collective sigh from all sides of the gambling isle, both in relief and pain, what to date has often been associated with Las Vegas and spawned Classics from “Goodfellas” to “Casino,” may now be offered to the masses across the United States and in the light of day. Practically speaking, what does Murphy v. NCAA mean to New York? Have the crimes of Promoting Gambling and other related New York Penal Law offenses just been normalized? If our highest court says gambling is legal, then, well, it can’t be criminal. Right? Arguably one could conclude that, but it behooves you as a bookie or anyone facilitating sports gambling in or touching New York to truly understand not merely the magnitude of this decision, but what it really means. You might be surprised…
By no means are multiple allegations proof of criminal conduct nor any wrongdoing whatsoever, but the claims against Eric Schneiderman, who only about an hour prior to drafting this blog served as the New York State Attorney General and chief law enforcement officer of the Empire State, are quite serious. Deserving of the same due process and presumption of innocence, what, if any crimes could Mr. Schneiderman face if prosecuted by the Manhattan District Attorney’s Office should any of the four woman, and claimed victims of his alleged aggression, pursue criminal charges? Putting aside the conflict that might arise due to the fact that Governor Andrew Cuomo recently tasked former Attorney General Schneiderman with investigating District Attorney’s Vance’s handling of the Harvey Weinstein predation, there are definitely potential violations of the New York Penal Law that Gotham’s District Attorney could pursue against the former NYS Attorney General and NYS Senator.
Whether you reside in New York City, the Hudson Valley or any municipality from Manhattan to Buffalo, Rochester to White Plains, or Syracuse to Albany, you are not immune from predation by would be extorters, coercers, blackmailers, stalkers and harassers. While the New York Penal Law covers these criminal acts as both felonies and misdemeanors, as of the time of this blog entry there is no New York statewide statute covering what is often referred to as “Revenge Porn.” Fortunately, however, thanks to New York City Administrative Code 10-177*3, Unlawful Disclosure of an Intimate Image, there is recourse for victims of “Revenge Porn” crimes in New York City. In fact, not only can the person sharing your intimate and sexual images without your consent find him or herself charged with a misdemeanor crime (can you say “hello” Rikers Island?), but NYC Admin. Code 10-177*3 also provides for civil remedies such as those involving punitive damages, compensatory damages, attorneys fees and injunctive relief so that your harasser ceases sharing and distributing your naked, sexual or intimate images.
When you are accused of and arrested for a crime or crimes you did not commit, fear can give way to paralysis. Whether you are charged in a New York City Criminal Court with felonies due to a misunderstanding that is based in false presumptions, or even if there is some truth but not full accuracy to each offense drafted in your felony complaint, you and your criminal lawyer have significant work ahead. Remaining frozen with fear is not a viable option.
Yes, you may have made a mistake and technically broken the law, but when all the facts are examined and evidence reviewed, the gravity of the allegations may not ultimately match the charges you face. Finding him/herself in a similar predicament, a recent Crotty Saland PC client had no choice but to “push back” in a thoughtful and respectful manner against such a felony complaint. Relying on both a legal sufficiency and mitigation defense, our client never lost sight of her/his exposure even if the the charged crimes were in part based on a wrongdoing unsupported by the evidence from a prosecutorial discretion perspective. After being charged with numerous crimes including Third Degree Burglary, Criminal Possession of Computer Related Materials, Computer Trespass and other crimes for allegedly accessing university computers and downloading certain materials, prosecutors agreed to offer a disposition that will ultimately give our client the opportunity to end the criminal case without a criminal criminal conviction dirtying his otherwise pristine criminal record.
You’re were drunk at a bar. Maybe it was just a bit more than one bourbon, on scotch and one beer. What spirits you imbibed and the exact amount is fairly irrelevant. What matters, however, is that after your were told to leave you did so, but came back angry, red faced and as violent as were sloppy. Instead of holding your liquor like a man or woman, you behaved as if it was your first rodeo and whatever muscles and fighting experience you had (or didn’t have), you morphed into a half 1980s Arnold Schwarzenegger and half modern day UFC brawler. There is little doubt your hangover was epic, but not necessarily from the actual alcohol. When your dry mouth and throbbing head gave way to the realization you had marks on your wrists from being handcuffed and the floor you slept on was not in fact your bed, the reality of what occurred the night before began to set. Unfortunately for a Crotty Saland PC client, while the reality of the circumstances and arrest were far less graceful than the poetic story line shared here, the substance of the incident was quite similar. Initially charged with Third Degree Burglary, New York Penal Law 140.20, and Attempted Third Degree Assault, New York Penal Law 110/120.00(1), a bad night at a bar became a dark future of uncertainty in the New York criminal justice system.