New York Domestic Violence Attorney
In New York, unlike many states, any crime can be classified as Domestic Violence if the person charged with the crime has a “family or household” relationship with the victim / complaining witness. Although many of the crimes typically charged as Domestic Violence do involve violent acts or the threat of violence, some do not.
What is Domestic Violence?As noted above, whether or not a crime is charged as Domestic Violence depends upon the relationship of the accused to the victim / complaining witness. A crime may be categorized as Domestic Violence when it is committed against a “family or household” member, as defined in Section 459-a of the New York Social Services Law. That definition is broader than one might expect and includes:
- People who are related by blood, such as parents, children, siblings and cousins;
- People who are related by affinity, such as spouses, in-laws and step-relativdes;
- People who have a child in common, regardless of whether they have ever lived together or been married;
- People living in the same household; and
- People who are or have been intimate partners
Commonly Charged Domestic Violence Crimes in New YorkSome of the crimes commonly charged as Domestic Violence are those you would expect, including Assault, Strangulation and Stalking. Some of the most common among those include:
Assault may be charged in either the Third Degree, New York Penal Law Section 120.00, or the Second Degree, Penal Law Section 120.05. Assault in New York, which is discussed in greater detail elsewhere on this site, involves intentionally causing a physical injury or a serious physical injury, with or without a weapon.
Strangulation / Criminal Obstruction of Breathing
“Strangulation” generally refers to three different crimes in New York. The first is actually called Criminal Obstruction of Breathing or Blood Circulation, Penal Law Section 121.11. The crime is a class A misdemeanor, and is charged when a person:
- Intentionally impedes breathing or circulation in another person by
- Pressure to the throat or neck; or
- Blocking the nose or mouth
Strangulation in the Second Degree, Penal Law Section 121.12, is charged when a person’s normal breathing or circulation is impeded causing:
- Loss of consciousness;
- Stupor; or
- Physical injury
A class D violent felony, Strangulation in the Second Degree carries a possible penalty of up to 7 years in prison and a period of post-release supervision if a person has no prior felony convictions.
Strangulation in the First Degree, Penal Law Section 121.13, is charged when a person’s normal breathing or circulation is impeded, causing serious physical injury. The First Degree crime is a class C violent felony, meaning a determinate sentence of 3.5 to 15 years and a period of post-release supervision if a person has no prior felony convictions.
Strangulation offenses can be difficult to prove beyond a reasonable doubt, meaning that a skilled criminal defense attorney may be able to win an acquittal or a conviction on a lesser charge only at trial, or even to negotiate for a plea bargain to a lesser offense because the prosecution understands the challenges associated with proving the charge.
Aggravated Harassment in the Second Degree
Although there are other types of Harassment under New York Law, Aggravated Harassment in the Second Degree, Penal Law Section 240.30, is frequently charged in Domestic Violence cases. The crime is a class A misdemeanor, and is charged when:
- A person communicates with another and threatens physical harm or damage to property to another person or a member of the household of that person;
- A person, intending to harass another person, makes phone calls, whether or not a conversation results; or
- A person makes physical contact by striking, shoving, kicking, or otherwise subjects to physical contact a family or household member, whether or not physical injury results
Stalking and Menacing
Stalking in the Fourth Degree, Penal Law Section 120.45, may be charged when a person commits a series of acts that:
- Cause fear to an immediate family member (Penal Law Section 120.45(1));
- Cause mental harm to a person by a series of communications when previously and clearly told to stop (Penal Law Section 120.45(2)); or
- Cause fear that employment is threatened by appearing or communicating at that person’s place of work when previously and clearly told to stop (Penal Law Section 120.45(3))
Stalking in the Fourth Degree may overlap with other crimes, including Aggravated Harassment in the Second Degree, and is a class B misdemeanor.
Stalking in the Third Degree, Penal Law Section 120.50, may be charged when a person:
- Commits the Fourth Degree crime while having previously been convicted of Stalking; or
- Commits a series of acts that cause a fear of physical injury or worse against a person or a member of that person’s family
Menacing in the Third Degree, Penal Law Section 120.15, occurs when a person places another in fear of physical injury or worse. The crime is a class B misdemeanor, and often overlaps with other crimes such as Stalking and Aggravated Harassment in the Second Degree.
Menacing in the Second Degree is charged when a person is placed in fear of physical injury or worse by:
- Display of a weapon (Penal Law Section 120.14(1)); or
- A series of acts over a period of time (Penal Law Section 120.14(2))
The Second Degree crime is a class A misdemeanor.
Other Crimes Commonly Charged as Domestic Violence Offenses
Some of the most common Domestic Violence charges that may not directly involve actual violence or threat of violence are set forth below.
Criminal Mischief is charged when a person damages the property of a family or household member, whether that property is a cell phone, a piece of electronic equipment, a car or anything else. The degree in which the crime is charged depends on the value of the property.
Criminal Mischief in the Fourth Degree, Penal Law Section 145.00, is charged when property of any value is damaged.
Criminal Mischief in the Third Degree, Penal Law Section 145.05, may be charged when the property damaged is valued at more than $250.
However, a person without a significant criminal history will often be charged with Criminal Mischief in the Fourth Degree even if the property is valued at more than $250, unless the property in question is worth several thousand dollars. The Fourth Degree crime is a class A misdemeanor and the Third Degree a class E felony.
Criminal Mischief in the Second Degree and Criminal Mischief in the First Degree are rarely charged in association with allegations of Domestic Violence.
Endangering the Welfare of a Child
At first glance, Endangering the Welfare of a Child, Penal Law Section 260.10, may bring to mind crimes of violence. However, committing any crime in the presence of a child will support this charge. Thus, a person who uses or sells a controlled substance, shoplifts, or commits any other crime, violent or non-violent, in the presence of a child is considered to be Endangering the Welfare of a Child. This becomes a Domestic Violence crime when the child in question is a family or household member.
Robbery and Larceny
Larceny in New York, which is discussed in depth elsewhere on the site, is the taking of property. Like Criminal Mischief, Larceny is charged in differing degrees depending upon the value of the property. With regard to Larceny, an additional factor applies: when property is taken from the person (as opposed to picked up from a café table or taken from an unoccupied vehicle, for example), the crime is charged in the Fourth Degree and is a felony, regardless of the value of the property.
Robbery in New York involves the taking of property by force. Although “force” may bring violent action to mind, the degree of force required to sustain a charge of Robbery in the Third Degree, Penal Law Section 160.05, may be sustained by acts like taking a cell phone out of someone’s hand or carrying an item out of the person’s home when he is present and objecting.
Being charged with a crime doesn’t necessarily mean being convicted of a crime. If you’re facing Domestic Violence and other charges, get help from an experienced criminal defense lawyer.
Orders of Protection (OOP) and Criminal Contempt
Orders of Protection
When a Domestic Violence case is underway in New York, an Order of Protection (OOP) will typically be entered. You may have heard these OOPs mistakenly referred to as restraining orders.
The Order of Protection will name the complaining witness / victim and other protected parties, and will prohibit the person charged from taking specific actions with regard to the protected persons. In most cases, the judge will explain the OOP to the person charged, and then the person charged will sign the OOP.
An OOP entered at arraignment is usually in effect for 6 months, but if the case is still pending at the expiration of that period, the OOP will be extended. It is very unusual for an OOP to be dropped while a case is pending, even if the complaining witness / victim requests it.
There are two different types of OOP: full and limited OOPs entered in connection with criminal cases. A full OOP bars contact of any kind, including in-person contact, any communication and contact by third parties. When a full OOP is in place, the person charged may not go near the victim / complaining witness’s home, work or school and may not contact the protected persons by text, email, social media, phone, or any other means. That includes sending messages through a third party such as a friend or relative. Here is what an OOP from a criminal domestic violence case looks like:
A limited OOP, on the other hand, only prohibits a person from committing a crime against the complaining witness. Of course, committing a crime is always prohibited, but when a crime is committed against a protected party in violation of an OOP, the actor may be charged with Criminal Contempt.
Criminal Contempt in Domestic Violence Cases
A person is in contempt of court when he or she disobeys a judge’s order. An OOP is a court order, so violating its terms is contempt of court. Contempt charges may carry harsher penalties than the underlying crime, and may impact bail. Contempt may be either a misdemeanor or a felony, depending upon the nature of the violation and whether the defendant has prior Family Offense convictions.
Criminal Contempt in the Second Degree, Penal Law Section 215.50(3), is a class A misdemeanor. The crime is defined simply as disobedience to a lawful court order. Criminal Contempt in the First Degree, Penal Law Section 215.51(a), (b) and (c), is a class E felony and is charged when the person accused of violating an OOP by:
- Intentionally placing a protected person in fear of physical injury by displaying a weapon;
- A course of conduct;
- Physical menace;
- Electronic communication;
- Making or threatening to make physical contact with the protected person; or
- Damaging property that belongs to a person protected by an OOP and is valued at more than $250
A person is also charged with Criminal Contempt in the First Degree when he or she commits Criminal Contempt in the Second Degree but has been convicted of that crime within the previous 5 years.
Violating an Order of Protection can have serious consequences. Don’t face those charges alone. Contact our office today to learn more about how we can help.
Felony Aggravated Domestic Violence
Under Aggravated Family Offense, Penal Law Section 240.75, if a person convicted of a specified offense within the previous five years is charged with one of those offenses, the charge is a class E felony (unless the offense itself is a more serious felony).
Specified offenses include, among others:
- Criminal Obstruction of Breathing
- Criminal Mischief
- Contempt; and
- Aggravated Harassment
“Pressing Charges” in Domestic Violence Cases
Often, in cases involving Domestic Violence, the victim / complaining witness will have second thoughts after the police arrive. Sometimes that’s because he or she doesn’t want to see a loved one arrested; sometimes it’s out of fear or based on practical considerations like being dependent on a spouse’s income.
Whatever the reason, it is important to understand that the victim / complaining witness does not make the decision. If the police make an arrest, an Assistant District Attorney (ADA) will call a victim / complaining witness about whether or not to proceed with criminal charges. In some counties, these ADAs take the complaining witness’s wishes into account. For example, an ADA in the Bronx will often decide not to proceed with charges if the victim says shortly after the arrest that he or she does not wish to go forward. On the other hand, in Manhattan and many other counties, the ADA will move forward with a case after arrest, regardless of the complaining witness’s wishes.
Once the case is underway, the decision is solely in the hands of the ADA, although the complaining witness’s willingness to cooperate may be a factor in that decision. In determining whether to proceed with a case, offer a plea bargain or go to trial, an ADA will generally consider:
- Any history of Domestic Violence between the parties, whether or not charges were filed;
- Any criminal history of the accused;
- The specific facts of the case, such as
- What happened?
- Was there injury?
- How severe was the injury?
In New York, when law enforcement responds to Domestic Violence incident, whether or not an arrest is made, the police fill out something known as a Domestic Incident Form (DIR), which is kept on file years after an arrest. Here is what a DIR looks like:
And, of course, the ADA must always consider whether he or she will be able to prove the elements of the crime beyond a reasonable doubt. If the answer is no, then the ADA has an ethical obligation to dismiss the case.
Remember, a charge is not a conviction. Even in Domestic Violence cases, an aggressive criminal defense lawyer may be able to negotiate for dismissal, a Family Adjournment in Contemplation of Dismissal, or other resolution that does not involve a criminal conviction.
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