Understanding New York Criminal Court Orders of Protection

Posted By Galluzzo & Arnone LLP || 3-Nov-2010

Q: In what cases do criminal courts issue orders of protection?

A: Criminal Procedure Law Sections 530.12 and 530.13 authorize criminal courts to issue orders of protection when a criminal action is pending involving a complaint charging any crime or violation between family members, or for "good cause," or upon a conviction in a case in which an order of protection had been issued. Typically, orders of protection are issued in cases involving allegations of domestic violence, harassment, rape, or assault, and they direct the accused defendants to abide by an order of protection in favor of the complaining witness or victim.

Criminal courts do not issue orders of protection of behalf of places or entities, only on behalf of individuals. Thus, a court will not issue an order of protection on behalf of a bar or an organization, but might name multiple protected people on one order.

Q: What do these orders of protection instruct?

A: In New York criminal court, there are generally two types of orders of protection: full and limited. A full order of protection is a document – signed by the defendant and the judge -that orders a defendant to have "no contact whatsoever" with the protected person. This includes physically staying away from the person, the person's home, and the person's school or place of business. It also instructs the defendant to refrain from communicating with the protected person via mail, telephone, email, or any other form of electronic communication (such as text messages or instant messages etc.). Finally, full orders of protection prevent defendants from sending messages to the protected parties via third parties.

Limited orders of protection instruct people to refrain from "assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, disorderly conduct, criminal mischief, intimidation, threats, or any other criminal offense" against the protected person or persons. Of course, the Penal Law already protects everyone from these offenses; the limited order of protection simply makes the offender subject to additional charges.

Q: How long are orders of protection in effect?

A: When a case is ongoing, the order of protection (called a "temporary order of protection") usually extends from one court date to the next. Thus, the court has the flexibility to decide whether to reissue another temporary order of protection whenever the case is before it.

If a case involving an order of protection is dismissed, the order of protection is also immediately dismissed.

If, on the other hand, the case results in a conviction (whether by plea or conviction at trial), the court will usually order a "final order of protection". The duration of the final order of protection depends on the nature of the conviction, and can range from six months to ten years.

Q: What happens if a person violates an order of protection?

A: The Penal Law makes it a crime to violate an order of protection. A routine violation of an order of protection - say, a phone call in violation of a full order of protection - will support a charge of Criminal Contempt in the Second Degree, a class A misdemeanor under Penal Law Section 215.50(3). Violating an order of protection in a violent way - such as a threat or assault against the protected party - can make one liable for the felony charge of Criminal Contempt in the First Degree (Penal Law Section 215.51(b)). Finally, repeat violators of orders of protection can also be subject to felony charges under Penal Law Section 215.51(c).

Moreover, a person that violates a temporary order of protection can be subject to a revocation of their bail or liberty. After all, when the court orders an order of protection in a case, it is also making the defendant's adherence to the order a condition of their bail or release. When the police re-arrest a defendant for Criminal Contempt, a prosecutor has a basis to move for a bail hearing under Criminal Procedure Law Section 530.12(11)(a) that could result in the defendant being remanded into custody. Defendants that violate temporary orders of protection while in prison can have their telephone privileges revoked by the court as well.

Q: What if the protected person doesn't want the order?

A: The protected person does not have the right to nullify or cancel the order of protection. After all, the order of protection is a court order, ordered by a judge, and only a judge has the right to rescind it or allow for exceptions. So, if the protected person calls the defendant and asks him to go to dinner with her, the defendant has to expect that if he accepts the offer and the police see them together at a restaurant, he could be arrested and then probably convicted of criminal contempt.

Q: What if I live with the protected person? Where do I go?

A: Basically, if it's a full order of protection, you had better not go home (unless the protected person vacates the home voluntarily and permanently before you get there). Sadly, you might pay the rent for the apartment or even own the apartment, but that doesn't give you the right to go home if the court has issued a full order of protection against you and in favor of someone else that lives there.

Q: What if the protected person calls the person that the court ordered to stay away? Is the protected person guilty of violating the order of protection?

A: The short answer is no. The court has not ordered the protected person to do anything, and the Penal Law does not consider this to be an act of Criminal Contempt. It may, however, cause the court to view the complainant skeptically and/or rescind the order of protection.

Q: What should I do if I have more questions?

A: We recommend that you contact the lawyers at Galluzzo & Arnone LLP. They are experienced former prosecutors with a significant track record of success in defending people accused of domestic violence, sexual assaults and rapes, harassment and other crimes. They also have experience representing victims of domestic violence in criminal and family court cases and can help people understand and navigate what can be a very confusing and intimidating legal system. In short, contact them to make an appointment and see if they can help you.

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