Long Island Domestic Violence Defense Lawyer
What are Domestic Violence Crimes?
Domestic Violence under New York State law is less of a specific crime but a broad category of crimes that may fall under this general category. Domestic violence often involves a spouse, co-parent, or intimate partner being physically or psychologically abused. This is an area of the law where many traditional criminal offenses blend with the realm of family courts. Any number of crimes may fall within this broader term, like assault or harassment. Also applicable are orders of protection , which are matters determined under family court but with criminal law implications.
If you or a loved one have been charged with any matter labeled a domestic violence crime, you are likely looking for explanations and a greater understanding of what these terms may mean.
What is Concurrent Jurisdiction?
One of the most important aspects of domestic violence crimes is the fact that the New York family court system has concurrent jurisdiction with the criminal court system for so-called “family offenses.” These family offenses are more broadly known as domestic violence actions. These may include assault, sexual misconduct, sexual abuse, stalking, harassment, etc. As New York statutes provide for both civil and criminal remedies, a victim may file for civil charges in family court or criminal charges in criminal court or file both at the same time. It is not uncommon, however, for courts to consolidate simultaneous cases.
When the courts must consolidate these cases, they are transferred to the Integrated Domestic Violence Court, which hears divorce, child custody, visitation, child support, and orders of protection.
What is an Order of Protection?
An Order of protection is a court order that may be requested by the victim in the family court or by a prosecutor on behalf of the victim in criminal courts in New York. Also known as a protective order in may states, the specifics of this order will typically involve certain limitations on what a person may do. These orders may prevent someone from going to a specific location, like the victim’s home, place of work, school, etc., though allowances may be made for a specific time and date to remove personal belongings. They may establish specific times and places for child visitation. If a person harasses, intimidates, abuses, etc. the victim or a minor child, that person may also find themselves in violation of this order. These orders may also include paying attorney fees to the victim.
Not all people who live together or who have a close relationship will qualify for an Order of Protection in the family court. If the parties are related by blood or marriage (consanguinity or affinity), they qualify for this order. If the parties are currently or formerly married, their relationship qualifies. The two parties do not need to have blood relationship or marriage if they have a child in common or have been in an intimate relationship.
If someone is a defendant in a criminal case, however, there are fewer limitations on who may obtain an order of protection. Criminal Orders of Protection are more difficult to obtain, however, as they require proof beyond a reasonable doubt, as is the case in any criminal matter. Family law Orders of Protection require only a preponderance of the evidence to prove the order is necessary.
What are Temporary Orders of Protection?
Before a final determination can be made, the court may issue a temporary order, if an Order of Protection has been requested, but the protection cannot be placed on hold until a full hearing. A Temporary Order of Protection is not a determination of guilt or even that the underlying allegations are true, only that if the allegations were true, protection would be necessary immediately.
What are Domestic Violence Crimes?
Since there is not a specific crime labeled as a domestic violence offense in the same way there are theft or sexual offenses, it is important to know what may qualify as a domestic violence offense.
First and Second Degree Harassment as well as Second Degree Aggravated Harassment may be considered a domestic violence crime or a family offense under New York law, if the victim has a qualifying relationship to the person charged. The lowest tier of these crimes, Second Degree Harassment, requires the intent to harass, alarm or annoy another by doing any number of acts, such as shoving, kicking, or making physical contact with the victim or threatening to do so, by following the victim around a public place, or repeated acts against the victim. The seriousness of this crime moves up the tiers as the threats grow more serious and the victim’s fear of physical harm increases.
Sexual Abuse and Misconduct
New York law also recognizes sexual abuse in the second and third degree as well as sexual misconduct and forcible touching as family offense matters. Third degree sexual abuse applies where a person has sexual contact without the consent of the victim or where the consent is insufficient, as it is where the victim is under the age of 17 and unable to give consent under New York law. Second Degree Sexual Abuse may apply where a person is incapable of consent for some reason other than the victim being less than 17 years of age. Sexual misconduct occurs when a person engages in certain sexual contact without the victim’s consent. A person may be found guilty of forcible touching where the person forcibly touches the sexual or intimate parts of another with the intent to degrade or abuse the victim or for the purpose of gratifying sexual desire.
New York’s disorderly conduct law is a broad term allowing for a number of acts to qualify under this statute. For example, a person may be charged with the crime for fighting, threatening, or otherwise being violent, making unreasonable amounts of noise, or for using abusive or obscene language and/or gestures in public. Getting into a fight on the street may qualify under this law.
Unlike other criminal offenses, all four tiers of the crime of stalking qualify as family offenses under New York law. A person may be accused of stalking in the fourth, and lowest, degree for engaging in a course of conduct with no legitimate purpose with the desire to cause harm or fear of harm to another person or their employment. More serious tiers of this crime occur where a person is a repeat offender, involves a weapon in the commission of these acts, stalks someone under the age of fourteen, or actually causes physical injury to the victim.
Though this crime has a very mild-sounding name, even the lowest possible tier carries potential jail time of up to one year. A person may be charged with criminal mischief for damaging the property of another. As the value of the property increases, the tiers of this crime also increase. The use of an explosive will automatically take this crime from a misdemeanor to a felony.
A person may be charged with menacing for intentionally placing or attempting to place another person in fear of death, imminent serious physical injury or physical injury. Repeatedly doing this this action as a course of conduct, using a weapon, or committing the crime of menacing while an Order of Protection is in place can upgrade the charge to a more serious degree.
A person may be charged with assault if the person intends to cause injury to another and actually caused injury or behaving recklessly and causing injury as a result. Though the lowest tier of this crime is a misdemeanor, when serious physical injury is caused by the person’s actions, the crime becomes a violent felony. Actions against a person under the age of 18 can also increase the seriousness of the charge and the penalties.
The act of strangulation is the criminal obstruction of breathing or blood circulation that causes stupor, loss of consciousness, or other physical injury or impairment. Because there can be some overlap between strangulation and assault and harassment, a person could potentially be charged with all three offenses. However, New York state law treats the act of strangulation more severely. Even without serious physical injury, this crime is considered a class D violent felony, and where the act causes serious physical injury, the charge transforms to the class C violent felony First Degree Strangulation.
Obstruction of Breathing or Blood Circulation
Similar to strangulation, there is some overlap with assault and harassment under New York state law. If a person obstructs the breathing or blood circulation of another by applying pressure on the throat or neck of the victim or blocks the nose or mouth of a victim, the person could be charged with this class A misdemeanor. Unlike strangulation, this does not require that even a stupor be caused by the act. The mere attempt to block off air or blood supply is sufficient.
Unlike many of the other domestic violence crimes, Reckless Endangerment is not characterized by an intentional act. It is instead determined by how reckless a person’s actions are. The lowest tier of this crime applies where a person has engaged in a course of conduct that creates a substantial risk of serious physical injury to another. First degree Reckless Endangerment occurs when a person is either indifferent to human life or commits an act that creates a grave risk of death to the victim.
What do some of the Terms Mean?
Like many laws, there are added terms within these charges that are not necessarily easily understood on their own. It is important if you or a loved one has been charged with a particular crime that you understand the nuances to that crime.
Physical Injury and Serious Physical Injury
One major difference between the tiers for some of these charges is the severity of the injury (or potential injury) to the victim. New York law defines a physical injury as “impairment of physical condition or substantial pain.” A serious physical injury is not mere pain but instead a risk of death or actual death, long-term disfigurement, poor health, or the loss or impairment of an organ or other body part. A mere physical injury may be temporary, but a serious physical injury has long-lasting or even permanent consequences.
Intentional, Reckless, Criminally Negligent
Though some charges include the intentional infliction of an injury, some merely require recklessness or criminal negligence. These are the incidents when an individual wants an injury to occur and causes an injury to someone. Recklessness occurs when someone is aware that a particular action has a substantial and unjustified risk, and despite that risk, the person proceeds with the action. Though being intoxicated may be a defense to intentional acts, it is not a defense to reckless assault. Criminal negligence occurs when an individual fails to act in a circumstance described by statute in such a way that this is a “gross deviation” from the standard of care a reasonable person should exert in a given situation.
Many of the above crimes also have lower degrees of attempt. The crime need not be committed pursuant to the statute for an attempt charge to apply. All that is necessary is that a person has taken a significant step toward the commission of the crime.
New York law now requires an officer to arrest you if he or she has probable cause to believe you have committed an act of domestic violence. Please see Mandatory Arrest in Domestic Violence Cases for a complete discussion of what this law means in practice.
What to Do after a Charge?
If you or a loved one has been charged with a Domestic Violence crime, you should consult with an attorney immediately. If an Order of Protection is put into place, a person could find his or her actions severely limited, including access to children or property. These charges could also affect immigration status, as many of these crimes are violent offenses that can lead to deportation.
If you have been arrested for domestic violence in Nassau, Suffolk or Queens County, call Scott J. Limmer without delay
You can contact Scott by phone at 516-742-2300 to speak to him immediately. He is available 24 hours a day, 7 days a week, year-round and your initial consultation is free.
Nassau County Criminal Law Office
200 Old Country Road Suite 2 S Mineola, NY 11501 Telephone: 516-742-2300
Queens County Criminal Law Office
80-02 Kew Gardens Road Suite 300 Kew Gardens, NY 11415 Telephone: 718-742-6300