Posts Tagged ‘Criminal Contempt in the Second Degree’

Domestic Violence Prosecutions in New York City Explained by a Criminal Defense Attorney

Friday, July 13th, 2012

Every year, police officers in New York City make thousands of arrests for “domestic violence,” or violent crimes by one person against a family member or romantic partner. (Click here for recent New York state statistics). There are so many arrests of this sort that prosecutors receive specialized training about these cases and every precinct in New York City has a “domestic violence officer” responsible for investigating reports of domestic violence. Also, many counties use specialized domestic violence courts, including the relatively-new “Integrated Domestic Violence” courts. Nonetheless, many people have serious misconceptions about these cases and how they proceed through the criminal justice system.

The most common arrest charges falling under the general umbrella of “domestic violence” include Assault in the Third Degree (Penal Law Section 120.00) and Aggravated Harassment in the Second Degree (Penal Law Section 240.30). Both are Class A misdemeanors punishable by up to a year in prison. Other less-common charges include Strangulation, Stalking, Assault in the Second Degree (Penal Law Section 120.05, a Class D felony), and homicide and manslaughter.

Once a complaint or report about domestic violence is made to the police (usually in the form of a 911 call), an arrest is virtually guaranteed. Indeed, people routinely call the police to say that they were assaulted by their partners but are surprised to learn that the police will actually arrest their assailant. Seemingly, many complainants think that the police will come and simply calm down the situation at home. However, if the complaint is for assault or some other form of violence, an arrest is almost certainly going to happen, even if the complainant changes her mind about the report and begs the police not to arrest her partner/assailant.

After a suspect is arrested, the police will probably try to take a statement from him.Suspects almost never help themselves by talking, because at this point, the suspect is almost certainly going to be charged with a crime (and spend a night in jail) no matter what they say to the police. Defendants, even clever ones, are far more likely to incriminate themselves – perhaps without even realizing it.

The defendant will be arraigned in criminal court, and the judge will almost certainly issue a full order of protection. Orders of protection are temporary and generally last until the next court date, when they are typically renewed. Order of protection come in two typical varieties: a full order of protection instructs someone to stay away from another person (as well as their home, office, school etc) and have no contact whatsoever with that person, whereas a limited order of protection instructs a person to commit no crimes against another person. The penalties for violating these orders of protection can be serious, and the violator can expect to be charged with Criminal Contempt.

Complaining witnesses or victims of domestic violence often come to court for the partner’s arraignment begging for the court not to issue an order of protection, but this almost never works. Plainly put, it is not the victim’s decision about whether he/she wants an order of protection, and the victim protected by the order of protection does not have the power to negate it. Thus, even if a victim invites a defendant over to the victim’s residence, the defendant cannot go see the victim without possibly being guilty of Criminal Contempt. The domestic violence officers in precincts routinely make “follow-up visits” to the homes of victims with pending cases to see if defendants have returned home, and if they catch defendants at the homes in violation of the orders of protection, they will arrest the person on the spot without any questions asked (or necessary, really).

Victims cannot “drop charges” in New York City as the prosecutor is solely in charge of deciding whether to prosecute someone. However, as a practical matter, prosecutors usually have difficulty proving cases without cooperative victims. In fact, if a victim declines to cooperate with the prosecutor altogether, the case will usually be dismissed pursuant to CPL § 30.30, though it might take 90 days (for a misdemeanor) or six months for a felony.

Shortly after a defendant’s arraignment on domestic violence charges, prosecutors will contact the victim and ask them to sign a “supporting deposition,” or affidavit in support of the complaint. The prosecutor usually cannot make much happen in a misdemeanor case without one fo these, though occasionally domestic incident reports (DIRs) or independent eyewitnesses can be used to pursue cases without the victim’s cooperation.

The results of these cases can depend wildly. Certainly, a cooperative victim makes a conviction far more likely for a defendant. Also, when injuries are serious (or harassing conduct particularly menacing), prosecutors are more likely to insist that defendants plead guilty to misdemeanors or do time in jail. In most other cases, prosecutors are often willing to negotiate plea bargain offers involving violations or even ACD’s with counseling programs such as DVAP and final orders of protection with varying lengths.

If you or a loved one have been arrested for domestic violence, you should strongly consider retaining the services of an experienced criminal defense attorney with a background in domestic violence prosecutions.