New York Domestic Violence cases can encompass a variety of serious charges. In addition, Domestic Violence is taken very seriously by New York Courts and prosecutors. Sometimes, however, a simple argument between lovers or spouses can be easily misconstrued, and the penalties, punishments, and arrests for New York domestic violence can seem disproportionate for the sort of conduct punished in those situations.
In New York accusations of domestic violence can present a defendant with an uphill battle and result in all types of consequences from divorce and child custody issues to child protective services issues. Call our experienced New York domestic violence lawyers today for a free consultation. Our New York domestic violence attorneys may be able to help you get your domestic violence charges dismissed or reduced and can help you with the collateral consequences that you may face.
In New York, the legal definition of domestic violence changes depending on the statute that is prosecuted, but, generally the legal scope is wider than what society may consider domestic violence is. Social Services Law Article 6-A sheds some light on what New York considers domestic violence to be by explaining who victims of domestic violence are. Essentially, Social Services Law Article 6-A, explains that domestic violence victims are people who are older than 16, spouses, and parents with children where children are the victim of a crime, the crime actually injures the body or the mind, and the crime is committed by a person who lives in the house. Family court and criminal court carry concurrent jurisdiction over domestic violence.
Domestic violence is one of there areas of the law, that, in recent years, has seen some of the most severe erosion of constitutional protections. For example, the Fourth Amendment protects the right to persons to be safe in their home from unreasonable searches without a warrant. There are very few exceptions to this warrant requirement for the home. Even if someone committed a misdemeanor, they flee home and manage to make it inside before the police catch them, as long as no felonies were committed on the way there, the police still need to get a warrant before entering the residence. However, in the context of domestic violence, the police can enter a home without a warrant if in order to render help to someone who they think may be injured inside, or to protect someone who they speculate may be being injured inside the home. Police have also entered homes to question a person about their missing significant other. Additionally, despite the fact that the Fourth Amendment clearly prohibits warrantless searches of the home, police can enter a home if a person with an order of protection out against them is inside a home in which they are not supposed to be.
Domestic violence crimes have been used as a justification to erode Fifth Amendment rights as well. The police have used public safety as a justification to disregard the Fifth Amendment where they needed to find a gun or knife, find someone that they believe is a victim of domestic violence, find the truth of a potentially violent situation, or talk down a captor from harming a hostage, or prevent the death of a person. Although these may seem like important exceptions to reading a person their rights, or questioning someone despite their invoking their right to remain silent, the trend is against resolute constitutional protection of those accused of domestic violence in New York, somehow making them a second class defendant.
Criminal Procedure Law 140.10(4) takes away any discretion from the police and mandates arrest where the police have cause and reason to believe that a person who the police were called to investigate has committed a crime listed in Criminal Procedure Law 530.11(1) against a member of their family. The listed crimes basically encompass all felonies except some types of grand larceny, misdemeanor crimes against the family where a protective order is violated, and the violation of a “stay away” protective order. Notice the lack of the requirement for an arrest warrant. Criminal Procedure law 140.10(4) completely removes all discretion from the police under these the circumstances, but, at the same time police speculations can now form the basis, and with only a little investigation, justification for arrests.
To even further stack the deck, accusers who may or may not be framing up a defendant are informed in writing of their legal rights and all remedies available to them without the need to consult an attorney. There is a great deal of assistance rendered to anyone who accuses someone of domestic violence and, in fact, if the police do a poor job of rendering this assistance or advising the accuser of their rights they may face departmental discipline.
Furthermore, prosecutors routinely give accusers special attention not accorded to typical victims of crimes, and judges are even permitted to routinely advise accusers of the dates and times of sentencing hearings so that damaging statements may be presented against defendants.
In addition, recently prosecutors have used evidence such as medical records, 911 calls, photographs, and police testimony to prosecute individuals accused of domestic violence even when the victim chooses not to testify or wants to drop the charges. Victims of domestic violence usually sign sworn statements about the incident during the heat of an argument and then the victims can be threatened with arrest if they change their story or refuse to testify.
In New York accusations of domestic violence can be very serious and have life changing consequences. Call our experienced New York domestic violence attorneys today for a free consultation.
At Tilem & Associates, we have handled many cases in which domestic violence was alleged against our client. There is no singular crime titled “domestic violence”, but rather a broad expanse of crimes that occur from one partner’s acts against the other. The accused and the victim need to have been in an intimate relationship, either currently or in the past for the case to be handled as domestic violence charges. Our experienced team of New York attorneys can help you with your domestic violence case, regardless of which criminal charges are involved.
Intimate partner relationships include all kinds of close relationships, including people who have been legally married or divorced, people who have a child together, blood relatives as well as relatives by marriage, as well as people who are unrelated who have or currently live together for periods of time as well as those an in a current or former relationship. The relationship between the two people involved does not have to be sexual in nature and does not have to be currently ongoing for domestic violence charges to apply to the situation.
Criminal domestic violence cases usually begin when one partner reports the other for committing some act against them. While multiple acts are listed by name, like assault, harassment, reckless endangerment, sexual abuse, stalking, coercion or threats, any violation of the penal law can be charged in the domestic violence unit. New York State has a mandatory arrest order for any domestic violence cases, meaning that if one partner is choosing to press charges the aggressor will be arrested if a felony has been committed or if a person disobeys an order of protection by making contact or committing a family offense crime.
If there is no order of protection in place and the crime that was committed was a misdemeanor, the police do not have to arrest the aggressor if the victim requests that they do not. The police are allowed to ask the victim if they wish to press charges or make the arrest even when the arrest is not mandatory. Most times, once police are involved or if an arrest has been made, the victim can request a temporary order of protection. This order is given a specific end date unless reason is shown by the victim that the order needs to be extended.
These charges will be handled in the domestic violence part of the courts, not the general criminal or family part. In this type of situation, the victim does not participate in the case except for as a witness, but the accused will be processed as if in criminal court. If the accused is convicted following the court proceedings, the temporary order of protection will become a permanent order from the court. If you are dealing with charges that have been moved to the domestic violence part, call our experienced team of New York attorneys now to make sure that you have a team on your side to fight for you and your rights.