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
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
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
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.