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Criminal Contempt in the Second Degree

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 in New York. Commonly called orders of protection (instead of restraining orders) by New York criminal lawyers, a charge of NY PL 215.50(3) is not solely limited to cases involving domestic violence, but is routinely associated with these offenses. 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.

On its face, the law of Second Degree Criminal Contempt is relatively clear. That is, you are guilty of NY 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 domestic offenses. If you disobey the mandate of the court, i.e., violate the order of protection or restraining order, you will face up to a year in jail.

What Constitutes a Violation of an Order of Protection

There is no general response to what violates a restraining order and what conduct will result in a charge of Second Degree Criminal Contempt. 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 in an order of protection you consult with your criminal attorney. Can you call to discuss childcare issues or apologize for past transgressions? Do not act first and ask questions later. It is routine that even contact from a third party on your behalf will violate an order. The last thing you want to do is inadvertently violate a restraining order and find yourself being held in custody with a significant amount of bail.

Defenses to Violating an Order of Protection

As a preliminary matter, do not misunderstand what or who is limited or protected by an order of protection. The complainant or victim who is named on that restraining order 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 contacting of you does not violate the order or, for that matter, invalidate the order. If, however, you engage them, contact them back, etc., because of the “strict liability” nature of NY PL 215.50(3), you can violate the order. While the protected party may claim they would never turn you into the police, as Assistant District Attorneys and prosecutors we have witnessed countless occasions where the protected party days or weeks later did just that. Again, if you make contact in violation of the restraining order you will face up to a year in jail.

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 its violation if you do not do something, then your criminal lawyer will likely want to bring this to the attention of prosecutors. Maybe the protected party 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 order of protection, 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, orders of protection and violations of these 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 prosecutors 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?

Called by the Police for Questioning or Placed Under Arrest: How to Respond

Even thought the two founding New York criminal defense attorneys at Saland Law both spent years as prosecutors and served in the Domestic Violence Unit, there is no answer to how you should respond to questing that will cover every situation. Further, this webpage can serve as advice in terms of how you should conduct yourself. Obviously, should you get a call from any detective who merely claims he or she wishes to speak with you, you should consider immediately calling a New York criminal lawyer or Criminal Contempt attorney.

Remember, before you say anything to any law enforcement official, admit to anything or apologize for any conduct…what you say can and will be used against you whether in a criminal proceeding or for other venue. Do not sink your own ship. Do not think you are smarter than the police and you can talk yourself out of your predicament. If you decide to apologize, write out or give an oral statement, or try to get cute and pull the wool over their eyes, what you say can be the piece of evidence the police need for probable cause to arrest you or an Assistant District Attorney the proof beyond a reasonable doubt to convict you. Exercise your judgment and call your criminal lawyer before you compound the dire situation you find yourself facing.

If you, a family member or friend is charged with violating an order of protection pursuant to New York Penal Law 215.50(3), be prepared for a battle. Unfortunately, your freedom, record and career are all at stake.

Call the New York City Criminal Contempt lawyers and former Manhattan Assistant District Attorneys at (212) 312-7129 or contact us online today.

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