How to Get Through Your Domestic Violence Case
While it may not feel like it now, you will survive your Criminal Domestic Violence case. Since getting arrested for Domestic Violence, you may be feeling angry, confused, defeated, or taken advantage of. The very person who pressed charges against you may be the closest person to you. The one most near and dear to your heart.
That person has now turned into your sworn enemy. They’ve called 911. You got arrested. The judge issued an order of protection prohibiting you from any contact with this “victim.” You may have to move out of your house
Which Charges are Considered Domestic Violence?
Domestic violence includes all types of cases occurring in intimate or familial relationships. Therefore, pretty much any criminal charge can be considered domestic violence. Generally, District Attorney’s offices have a specialized division that handles these types of cases.
Common Examples of Domestic Violence Charges
The following charges from the New York Penal Law are commonly prosecuted by the Domestic Violence Unit of the District Attorney’s Office:
1. Assault 2. Stalking 3. Violations of Orders of Protection 4. Child Abuse 5. Criminal Mischief 6. Strangulation
What are Family Offenses?
In addition to being able to proceed in criminal court, individuals are also able to file what’s called a Family Offense Petition against a family member.
Qualifying Relationship for a Family Offense
The term “family members” is “individuals related by blood or marriage, individuals who were formerly married, or individuals who are unrelated but have a child together; and individuals who are unrelated who are or have been in an intimate relationship”
What are Eligible Family Offenses?
- Disorderly conduct
- Unlawful dissemination or publication of an intimate image (eff. Sept. 21, 2019)
- Aggravated harassment
- Sexual misconduct
- Forcible touching
- Sexual abuse
- Reckless endangerment
- Criminal obstruction of breathing or blood circulation
- Assault or attempted assault
- Criminal mischief
- Identity theft
- Grand larceny
Outcomes of Family Offense Petititions
After filing a Family Offense Petition in Family Court, the Judge can issue a temporary order of protection against the respondent. Respondent is the person accused of the crime. A judge can also issue a child support order against the respondent.
In conclusion of the case, the Judge can also:
- Suspend judgment for up to 6 months;
- Place the respondent on probation for up to 1 year;
- Require the respondent to participate in a batterer’s education program. This may include alcohol and/or drug treatment.
- Order the respondent to pay restitution of up to $10,000;
- Issue a final order of protection for up to two years. However, if there are aggravating circumstances, the judge can increase it up to 5 years.
Do’s and Don’t For Getting You Through Your Domestic Violence Case:
Below are some wisdoms we picked up as former Domestic Violence Prosecutors and Criminal Defense Attorneys. While the Do’s and Don’t list is not exhaustive, it will help with your case:
1. Retain an Experienced Criminal Defense Attorney Who Cares and Has Time For You
In short, the best way to describe criminal court proceedings is rushed. While you are there all morning, your attorney is rarely there on time. As a matter of fact, the amount of time you spend there waiting is disproportionate to the time you get with your attorney. As a matter of fact, the amount of time the judge spends on your case is probably under a minute.
Thereafter, your attorney may be running out of the courtroom to their next case. Without asking you how you’re doing, or reassuring you it will all work out. Unfortunately, this is a common problem with high volume law practices. You are treated like a case, and not like a human being.
It shouldn’t and doesn’t have to be like that. Find an attorney that makes you feel like you’re their only client and guides you through all stages of DV case.
How do I find an attorney?
Many clients get referrals for attorneys from their family and friends. You can also Google criminal defense attorneys to find those in your area. Importantly, you should always read the attorney’s client reviews from Avvo. For the most part, reviews of former clients are the most reliable indicator of the attorney’s performance.
2. Fully Abide by the Order of Protection
Typically, the order of protection is the first piece of paper that you get about your case. There are several different types of orders of protection – full orders, limited orders, temporary orders and final orders.
What’s the difference between a full and a limited order of protection?
The difference between the two is the amount of contact you’re allowed to have with the victim. Below difference is explained in detail:
Full Order of Protection: Absolutely No Contact
A full order of protection prohibits any and all contact with the victim. This includes:
1. In person contact – you can’t go to their home, job, any other place they frequent and attempt to talk to them; 2. Third party contact – communicating with the alleged victim through an intermediary, or asking someone to tell the victim something on your behalf; 3. All other contact - calls, text messages, social media, Facebook, Instagram. However you think of making contact, don’t do it.
In addition, you are also not allowed to commit any crimes against the victim. Furthermore, you must surrender all other weapons and not apply for a gun license.
If you are living together with the person protected by the order of protection, you will have to move out. However, a judge will give you an opportunity to go to the location and get your things. Importantly, you must go at the time set by the judge with a police officer.
Limited Order of Protection: Contact Allowed, Crimes are Not
A limited order of protection, however allows you to have contact with the complainant. But you must refrain from any criminal conduct against the victim. It should be noted that it is limited orders are very hard to get on criminal cases, because the prosecutor almost always insists on a full order of protection. If your attorney was able to get you a limited order of protection, consider yourself lucky. And buy a lottery ticket.
How long is my Order of Protection good for?
In short, for the duration of your case and maybe sometime after. This brings us to the second difference between orders of protection – temporary or final order of protection.
Temporary Order of Protection
Your order of protection will be extended for the duration of your case. This is either done every court date, or every six months. Even if you miss Court, the order can be extended without you there. This is known an “ex parte” – meaning without you being there.
However, when your case gets dismissed, your temporary order of protection will go away immediately.
Final Order Of Protection
If an order of protection is part of your plea, you will have one after the conclusion of your case. The duration of the final order of protections depends on the charge that you convicted/plead guilty to. Below is the breakdown:
Eight years from the later of (1) date of sentencing, or (2) maximum term of sentence imposed.
However, the term is Ten years in cases involving felony sexual assault from the later of (1) date of sentencing or (2) maximum term of sentence imposed.
Class A Misdemeanors
Five years from the later of (1) date of sentencing, or (2) maximum term of sentence imposed;
Six years in cases involving misdemeanor sexual assault from the later of date of sentencing or (2) maximum term of sentence imposed.
Any Other Offense
Two years from the date of sentencing or two years from the date of the maximum expiration terms.
For example, in DV cases resulting in an Adjournment in Contemplation of Dismissal (also called “ACD”), the period of the ACD is 1 year. Therefore, the order of protection duration is also 1 year.
Additional Charges for Violating the Order of Protection
You are absolutely not to have any contact with the victim. No matter how much you want to talk to them. Regardless of the important things you want to share with them.
Even if you think the order of protection has expired. Even if you think it’s OK for you to message them on social media. DO NOT DO ANYTHING UNLESS EITHER THE JUDGE OR YOUR ATTORNEY TOLD YOU THERE IS NO MORE ORDER OF PROTECTION. Contacting the victim will only put you in a worse situation.
Specifically, you may be charged with Criminal Contempt.
What are Criminal Contempt Charges?
Criminal Contempt is intentional disobedience of a Court order.
Criminal Contempt in the Second Degree – Class “A” Misdemeanor
Specifically, New York Penal Law Section 215.50(3), provides that you are guilty of Criminal Contempt in the Second Degree if you intentionally disobey a mandate of a court. This charge is a Class “A” misdemeanor and is punishable by up to 1 year in prison.
Criminal Contempt in the First Degree – Class “E” Non-
Criminal Contempt in the First Degree is a Class “E” nonviolent felony. As such, if you are found guilty, you can be subject subject up to four years in prison.
Under New York Penal Law Section 215.51(3), the elements of Criminal Contempt in the First Degree are as follows:
- Violation of a duly issued or served Order of Protection, AND
- Placing a person protected by the Order of Protection, in reasonable fear of physical injury by:
- displaying a weapon or dangerous instrument or by making threats, OR
- following such person or engaging in repeated conduct over a period of time, OR
- communicating via telephone, telegraph, mail or other forms of written communication, OR
- making repeated telephone calls with the intent to harass, annoy, threaten or alarm the protected person, OR
- striking, kicking or otherwise subjecting a protected party to physical contact or placing them in fear by physical menace.
Contact by Victim is not a Defense
It is not a defense to criminal contempt charges that the victim reached out to you first. Do not respond, call your attorney. Together, we will figure out what to do – most likely, your attorney will alert the prosecutor.
It is very important that you fully abide by the order of protection. Because nothing is worse than finding out that the negotiated plea is off the table because the DA knows about you calling the victim. Contact your attorney if you have questions regarding the order of protection.
3. Take photos of your injuries and property damage and locate receipts
Sometimes, a good defense or a mitigating factor in Domestic Violence cases is that the victim also attacked you or destroyed your property. If the police made the decision to arrest you, but not the other person, they are clearly not on your side.
Be Your Own Detective
It is now up to you to preserve evidence and be your own detective. As soon as you can, you should take photos of your injuries and the damaged property. Even if you believe your scratch is minor. Despite the fact that you don’t believe anyone will care about your broken picture frame.
We promise, it matters and these things add up. Be your own detective, photograph everything you can. This includes taking screenshots of the text messages and other relevant communications. Importantly, create a second copy of these documents. Since they are essential to your case, you need back up.
Figure Out Who Owns the Property
Criminal Mischief charges prohibit damaging the property of another. Larceny charges prohibit stealing of property. However, an important element of these charges is not having the owner’s permission to take, or damage the property. You may have a strong defense if you can prove that the property is yours. For example, proof of purchase, or even registration of the item with the seller may establish that you are the true owner.
4. Talk to no one besides your attorney
This is self-explanatory. Your criminal defense attorney is not only your counsel but also your confidant. That is because the duty of attorney-client privilege protects all of your communications. Your attorney can’t tell anyone else what you’ve told them. Specifically, this is important because the prosecutor can’t ever question your attorney about your involvement in the crime.
Same is not true for anyone else in your life. The police and the prosecutor’s aren’t above talking to your family or friends to find out what you’ve said to them. Oftentimes, prosecutors even send subpoenas to those close to you to drag them before a Grand Jury. While it is natural to seek advice from your relatives and friends about your case, don’t do it.
This may get them roped up in your criminal case in a bad way. For example, they may be forced to cooperate with the government and even testify at trial. It is essential that you find an attorney that is easily accessible and can be there for you in the role of a counselor. So all of your communications about the case are absolutely protected.
5. Do not post anything on social media about the case
If the prosecutor or the case detective are worth their salt, they will look at your social media profiles to see if you’ve talked about your case. Even if your profile is private, the victim or their friend may give the police access to your accounts. While writing about your feelings may be therapeutic, don’t do it. Additionally, posting threats or anything of that nature is also problematic. This may strengthen the prosecutor’s case and lead to a worse offer than you would otherwise get.
Before you post anything, ask yourself – what would the Judge, the prosecutor and your attorney think about your post? If anything negative comes to mind, don’t do it. When in doubt, call your attorney.
Get Guidance Today
This list is by no means exhaustive. It is important that you consult and retain an experienced domestic violence attorney to get the best possible outcome. Please call us at 212-729-9494 or contact us for help with your domestic violence situation.