Criminal Contempt in the First Degree: New York Penal Law 215.51
Not the only subsection of Second Degree Criminal Contempt, New York Penal Law 215.50(3) is likely the “brand” of Criminal Contempt you will face if you violate a Restraining Order. Commonly called an Order of Protection by New York criminal lawyers, a charge of Pena Law 215.50(3) routinely involves Domestic Violence crimes but can also be associated with offenses outside of this context. Regardless, whether you are arrested and hauled out of your apartment by the NYPD in Brooklyn or Manhattan, or you receive a call from a detective in one of the many Westchester or Rockland municipalities, do not underestimate the severity of the allegations even if you have a valid and strong defense.Definitions and Elements
On its face, the law is relatively clear. That is, you are guilty of PL 215.50(3) if you intentionally disobey a mandate of a court. While there is a codified exception referencing cases involving labor disputes, in the criminal realm those matters are few and far between while having little or nothing to do with Stay Away Orders issued in the Family or even stranger context. If you disobey the mandate of the court, i.e., violate the terms laid out by the judge, the consequences are potentially quite significant.Penalties and Punishment
Second Degree Criminal Contempt is a class “A” misdemeanor punishable by up to one year in jail, two to three years probation, a conditional discharge, community service, and/or fines and surcharges. While it is not a felony, a conviction is permanent. At no point will your record later be expunged.Related Offenses and Collateral Issues
A typical Order of Protection will restrict a person from engaging in all kinds of conduct directed at the protected party. This includes behavior that is not itself criminal in nature, such as a phone call or a conversation on the street. If the underlying conduct rises to the level of a crime it will typically mean that a Contempt in the First Degree charge is present. However, whether through prosecutorial discretion, police discretion or some other factor, other criminal charges can accompany a Contempt in the Second Degree charge such as Assault, Harassment, Aggravated Harassment, Stalking or other offenses.
It is critical to realize that no matter what judge issued the underlying Restraining Order – whether in a Criminal Court or a Family Court – the weight and potential legal violation is the same.Example and Hypothetical Scenario
In the event you are charged with Criminal Contempt in the Second Degree and the party who is protected from you by the Order of Protection is a relative, partner or a person considered “family,” not only will there be increased scrutiny by prosecutors, but the court system will funnel your case to specific courts limiting the likelihood your case will merely be lost in the shuffle. The most typical example of this charge and scenario is where one party has a Protective Order against another, and the restricted party simply calls or contacts the protected party when they know they are not allowed. Depending on what is said or the nature or number of calls, the District Attorney can charge other crimes too.
There is no general response to what violates a Restraining Order and what conduct will result in a Second Degree charge. The language contained in the Order of Protection against you will dictate what you can and cannot do in relation to the protected party. Because of this it is critically important that before you have any contact whatsoever with the named party you consult with your criminal attorney. Can you call to discuss childcare issues or apologize for past transgressions? Maybe, but do not act first and ask questions later. It is routine that even contact from a third party on your behalf will violate the law. The last thing you want to do is inadvertently commit a crime and find yourself being held in custody with a significant amount of bail.Your Case, Your Defense, Your Future
As a preliminary matter, do not misunderstand what or who is limited or protected by an Order of Protection. The named complainant or victim has every right (barring a separate order or ruling from a court) to contact you. He or she can call you, text you, email you, etc. Assuming they are not perpetrating a separate crime such as Aggravated Harassment in the Second Degree, their mere communication with you does not violate the order or, for that matter, invalidate the same. If, however, you engage them, contact them back, etc., because of the “strict liability” nature of PL 215.50(3), you are subject to arrest. While the protected party may claim they would never turn you into the police, as criminal defense counsel and former Assistant District Attorneys, we have witnessed countless occasions where the protected party days or weeks later did just that.
While it is not a statutorily identified defense, if the protected party is using the Order of Protection to coerce you to do something or threaten you or threaten a violation if you do not do something, then your criminal lawyer will likely want to bring this to the attention of prosecutors. Maybe the accuser left you a voice message, text or email containing the threat even if it is subtle. Maybe there is third party corroboration or a recording that you made of the improper demands. Even though you may have violated the Stay Away Order, prosecutors do have discretion in pursuing criminal charges. Unfortunately, the police usually do not share this discretion and must make the initial arrest.
Beyond the circumstances of its use or abuse, Order of Protections and violations of these court mandates can be challenged similarly to any other case. Simply, what proof exists of that violation? Is it merely the complainant’s word against yours? Can prosecutors corroborate the violation with texts or emails? If so, can law enforcement continue a case even if the complainant wants to drop the charges (the simple answer is “yes” but obviously depends on the evidence)? Alternatively, can you provide an alibi or your own corroboration?
If you are accused of or arrested for any degree of Criminal Contempt in New York, be prepared for a battle. Fortunately even though your freedom, record and career are all at stake, Crotty Saland PC has the experience and knowledge to advocate on your behalf and put you in the best place to resolve your case and minimize your exposure both inside and outside the courtroom.
Call the New York Criminal Contempt lawyers and former Assistant District Attorneys at 212.312.7129 or contact us online today.