Domestic Violence Crimes
Social Services Law 459-a defines Domestic Violence terms and, more specifically, what constitutes “family or household member[s]” for the purpose of these prosecutions. SSL 459-a encompasses far more relationships under this umbrella than a literal reading of the statute would imply. Brothers, wives, nephews, ex-wives, and even former partners or friends who had “intimate relationship[s]” that may or may not involve sexuality, can avail themselves of protection. At the same time, the accused can find him or herself facing a “DV” prosecution as well.From Arrest to Arraignment and Beyond: Understanding Process
The DV arrests process in New York is much like other cases, but there are some critical differences. For example, the NYPD, and other law enforcement agencies such as the Westchester County Police or a local police department in Poughkeepsie, New City, Scarsdale or Carmel, treat these husband/wife, boyfriend/girlfriend, and similar matters as “must arrest.” The days of telling an accused to “walk it off” are long gone. In NYC, a complainant is presented with a Domestic Incident Report or “DIR” where he or she can summarize what occurred. While the police may also draft this narrative, an alleged victim need not sign this document.
While not mandatory, it is fairly routine for prosecutors to attempt to question or take a statement from a defendant. Whether that person committed a crime or is the victim of a misrepresentation or misunderstanding, remember that what you say can, and will, be used against you in court. What a defendant might think is beneficial to speak to the police, know that while talking yourself out of an arrest you very well may dig your proverbial ditch that much deeper. Simply, law enforcement is not cutting you lose at this stage in the overwhelming majority of cases. They will err on the side of caution and bring you before a judge. As such, it behooves you to wait for your lawyer. Keep in mind that due to the highly sensitive nature of family offenses and those involving intimate partners, the Assistant District Attorney who is assigned your case is not only trained in handling these types of cases but will likely keep your case from start to finish.
At arraignment, crimes of this nature routinely involve the issuance of a Stay Away Order and a judge setting some form of bail or condition upon a defendant’s release. From there the case is sent to a specific court part, if one exists, where it is monitored and followed more closely.Order of Protections: Keeping Parties and Families Apart
It makes no difference if a prosecution is in Queens, Brooklyn, White Plains, Nanuet, Brewster or Yonkers. Courts almost always err on the side of caution and issue a Restraining Order to best ensure the accuser or complainant is protected from future victimization. Not only must you have a full understanding of and about Domestic Violence Orders of Protections, but recognize that many prosecutors and judges default to completely full or “stay away” orders that do not permit any contact even if the parties want to remain together. Barring the court allowing for the Stay Away to be modified by Family Court, an arrest may preclude you from your own home and seeing your children. Compounding matters further, a full Order of Protection will be in effect from your arraignment until the following court date often weeks later. Should you violate the court’s instruction and communicate with the protected party, law enforcement can pursue Criminal Contempt charges even if the complainant initiated the contact. For that matter, depending on the alleged conduct and your history, you may be exposed to an Aggravated Family Offense.The Prosecutor’s Power: Moving Cases Forward
While an Assistant District Attorney may use a DIR to prosecute a misdemeanor case in lieu securing a supporting deposition, it is likely that the ADA will try to convince a complainant to sign the corroborating affidavit. Whether a complainant should or should not sign is case specific and ultimately up to that specific person. What is relevant, however, is no matter what the DA or any other member of law enforcement may say, no person needs to sign this document nor any other affidavit. It is solely an accuser’s decision. Taking this a step further, while you can be subpoenaed to appear in court or before a Grand Jury, you must be properly served. Of critical import is the following: No party can every subpoena a complainant or witness to his or her office, mandate of phone call, or that you speak at all. Although you should consider retaining counsel if this becomes an issue, neither the police nor any prosecutor can force you to sit before him or her and answer questions.
With the above in mind, prosecutors can potentially pursue a case without the cooperation of an alleged victim. From 911 calls that are deemed “excited utterances” or “present sense impressions,” medical records, witness accounts, videos including police body cam recordings, and admissions from a defendant, the District Attorney can potentially prosecute without a victim all the way to and through trial.
At bottom, if a complainant wants to retract a story, clarify a misunderstanding, or just doesn’t want to prosecute a partner, family member, or other party, the law has provisions that may allow charges to proceed nonetheless.Practical Realities: Real World Consequences
It is likely that that both an accused and accuser will not only have countless questions but find themselves immersed in the real word consequences of an arrest or indictment. For example, should you or your partner, spouse, etc., sign the supporting deposition? What happens if the supporting deposition is signed? Will the case become more difficult? How will you get your clothes or personal items from your home if you cannot return? Is there a way the complaining party can withdraw the case? If a full Stay Away Order is issued, can you have it limited to allow contact? If a prosecutor or Criminal Court Judge refuses to do so, can you go to Family Court to amend that order so you can have contact with children? For that matter, even if you don't have children, can you remain in your home even if you are the sole provider or person who pays rent? Simply, whether or not you can or need to avail yourself of the Domestic Violence Survivor's Justice Act, or DVSJA, if you are smart from the outset, you will put yourself in the best position to reclaim your life, name and career.Associated Crimes and Criminal Statutes
Despite popular belief, there is no crime codified as or called “Domestic Violence.” There are numerous offenses, however, that can be charged as such. Some of these misdemeanors and felonies include:
- Assault crimes including Third Degree Assault, Penal Law 120.00, and Second Degree Assault, Penal Law 120.05. Examples include punches and kicks that cause “substantial pain” such as redness and bruising. Felony examples may include the use of a “dangerous instrument” or the causing of a more serious physical injury such as one that leaves an ugly scar.
- A Revenge Porn crime such as Unlawful Disclosure of an Intimate Image, New York City Administrative Code 10-180 (10-177*3), and Unlawful Dissemination or Publication of an Intimate Image, Penal Law 245.15.
- Second Degree Aggravated Harassment, Penal Law 240.30, where, for example, for repeated and threatening phone calls or texts that serve no legitimate purpose other than to frighten or harass the other party.
- One of any of the many Stalking crimes in New York including Stalking in the Fourth Degree, Penal Law 120.45, Stalking in the Third Degree, Penal Law 120.50, and Stalking in the Second Degree, Penal Law 120.55. An example may include following a person to work or around the neighborhood while putting that person in fear for his or her safety. Possessing or threatening the use of a weapon or causing a physical injury will enhance this offense.
- Any degree of Menacing including Menacing in the Third Degree, Penal Law 120.15, and Menacing in the Second Degree, Penal Law 120.14. These laws are violated where you threaten to hurt another person with or without a weapon or dangerous instrument.
- Strangulation and related crimes including Obstruction of Breathing or Blood Circulation, Penal Law 121.11, Strangulation in the Second Degree Penal Law 121.12, and Strangulation in the First Degree, Penal Law 121.13. Simply, putting your hands on another party’s neck and squeezing even slightly may result in a charge.
- Endangering the Welfare of a Child, Penal Law 260.10. Examples of this crime can include striking a child, Assault of another in front of that child, or using drugs around a child.
- Criminal Mischief crimes including Criminal Mischief in the Fourth Degree, Penal Law 145.00 and Criminal Mischief in the Third Degree, Penal Law 145.05. A violation of these statutes may include breaking a cell or mobile phone, damaging furniture or scratching a car. The dollar amount of the damage dictates whether an accused faces misdemeanor or felony charges.
- One of any three Robbery crimes including Third Degree Robbery, Penal Law 160.05, or one of four Grand Larceny offenses including Fourth Degree Grand Larceny, Penal Law 155.30, or Third Degree Grand Larceny, Penal Law 155.35. While taking a cell phone from an intimate partner’s hand may qualify as Grand Larceny, once force is used, prosecutors can elevate the offense to a more serious Robbery.
By no means a list of all potential statutes that you can be accused of violating, no matter the allegations and degree of the offense, you can expect that prosecutors will seek Restraining Orders and potentially incarceration, anger management programs, probation or a litany of other conditions. In fact, these misdemeanors are punishable by a year in jail and felonies carry sentences as lengthy as four, seven, fifteen or more years in prison. Even worse, other violent felonies not listed here can result in well over two decades incarceration or more.Your Defense, Your Future, Your Liberty
Due to “automatic arrest” policies, the potential for incarceration, and the stigma associated with the same, having experienced and skilled representation is not merely important, but critical to your defense. While you undoubtedly work with your counsel to challenge and respond to false allegations and lies, there are numerous approaches and means to start your defense.
Some questions your counsel will examine when developing the best strategy include identifying whether the complainant wrote out and signed a DIR and, if the allegation involves a misdemeanor, whether he or she signed the supporting deposition. Other issues may involve what, if any, evidence corroborates either your defense or your accuser’s allegations. For example, was there a 911 call that was made “in the moment,” are there any witnesses, did either party draft earlier DIRs, and are there other communications, such as text messages, that can be used towards your vindication? Remember, while you likely are subject to an Order of Protection preventing direct or third party contact, your counsel has every right to investigate and explore your defense.Arrest and Convictions: Consequences and Ramifications Outside the Justice System
Not only can a court sentence you to a term of imprisonment, community service, an anger management program or a litany of other conditions, certain plea deals or even arrests can endanger professional licenses and certifications for those in finance, law, medicine or other fields. Those on visas or with green cards should have similar fears. In fact, certain misdemeanors and felonies can not only qualify as Crimes Involving Moral Turpitude, but when former or current spouse, child, partner or other similarly situated person is the victim of an offense involving stalking or child abuse, neglect or abandonment, deportation is possible. Simply, the ramification of an arrest or conviction to your immigration status and legal standing in the United States cannot be overstated. Having represented foreign nationals and lawyers, financial services employees and other professionals such as teachers, doctors, accountants NYC employees, the attorneys at Saland Law are well aware of and prepared to address these collateral issues.
Make no mistake. Allegations of familial type violence, true or false, are often that much more severe. Protect your liberty, rights and career. Contact one of the New York criminal lawyers and former Manhattan prosecutors at Saland Law to best implement a successful strategy and put you in position to protect your life in the courtroom and well after your case is closed.
Call the New York criminal defense attorneys and former Manhattan prosecutors at (212) 312-7129 or contact us online today.