It is common throughout New York City and the region for judges to grant prosecutors’ requests for orders of protection whereby no contact between a complainant and defendant is permitted. These “full” orders of protection are often requested in other counties, such as in Brooklyn and Westchester, where the parties don’t even know each other and are complete strangers. What is concerning for the accused, however, is where a “full” order of protection is issued that ultimately requires one party to vacate their own home. Unquestionably, these orders of protection are often necessary to protect one individual from another. However, “full” orders of protection are also implemented where there is merely an accusation without full investigation. Prosecutors, taking the side of caution, may ask for these orders of protection, but amend them at a later date. Unfortunately, what happens to the accused if they must leave their home, their property and their possessions behind while they wait for a prosecutor or detective to conduct their investigation? What is this person to do for the weeks or months that he or she may not have access to his or her property?
Fortunately, there is a potential remedy or at least a means to challenge the order of protection in New York. If your “personal or property rights will be directly and specifically affected,” by a “full” order of protection, your attorney can request a “Forman Hearing.” Having said that, merely requesting one does not mean such a hearing will be granted and you will be successful. It is the accused’s burden to establish this direct and specific affect. Once having done so, the court must ascertain and weigh this affect against the danger(s) to the complainant. See People v. Foreman, 145. Misc. 2d 115 (NY Cty. Crim. Ct. 1989).
Certainly, an accusation that requires the issuance of an order of protection is a serious matter. However, just as in all cases, an accusation is not a finding of guilt and the ramifications of loosing one’s rights to their property is significant while prosecutors sort out the criminal allegations. Not only may a Forman Hearing be a means to protect your property rights, but it is also a potential tool for your New York criminal defense attorney to get an early chance to cross examine witnesses.
For further information on New York criminal statutes, newsworthy cases and legal decisions, please review Saland Law PC’s New York Criminal Law Blog at NewYorkCriminalLawyerBlog.Com.
Representing clients throughout the New York City region, the New York criminal defense lawyers at Saland Law PC served as prosecutors in the Manhattan District Attorney’s Office before founding the law firm.