Articles Posted in Domestic Violence

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Understanding Domestic Violence and the Criminal Justice System

Some of the most common types of cases in New York City’s criminal courts are those involving domestic violence. The criminal courts classify as “domestic violence” those crimes allegedly committed against family members, spouses, and/or current or former romantic partners. Those crimes can include actual violent acts like assault and/or rape, threatening behavior like menacing or harassment, and violations of orders of protection (criminal contempt), among other things. Typical charges might include Assault in the Third Degree (Penal Law 120.00, a class A misdemeanor), Aggravated Harassment in the Second Degree (Penal Law 240.30, a class A misdemeanor), Strangulation in the Second Degree (Penal Law 121.12, a class D felony), and Criminal Contempt in the Second Degree (Penal Law 215.50) (a class A misdemeanor).

Many victims of domestic violence are surprised to learn that they cannot simply “drop the charges” against a defendant, or voluntarily and immediately terminate the criminal case they helped initiate. Quite frequently, a dispute between family members or spouses leads to someone calling the police, and when the police arrive, one of the participants in the argument (or the victim) reports that they have been assaulted or threatened. That report alone provides probable cause for the police to make an arrest, and, generally, police are in fact required to make an arrest under such circumstances. The complainants frequently regret having made the reports leading to the arrests, but after the arrests, the decision about whether the case proceeds or not is not the complainant’s decision to make.

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There has been a media firestorm about NFL running back Ray Rice’s assault of his wife Janay Rice. While exiting an elevator in Atlantic City, NJ, Ray Rice – a powerfully built football player – punched his wife in the face and appeared to knock her unconscious. He then dragged her along the floor of the casino; the entire gruesome episode was captured on videotape and Ray Rice was arrested.

Generally, the reaction from the public and other players has been appropriately scornful of this detestable conduct. After initially suspending him for just a few games (a decision for which the league commissioner, Roger Goodell, received considerable and deserved criticism), the NFL suspended him from playing for a year. His team waived him despite his multi-million dollar contract and importance to their on-field success. Ray Rice’s Nike sponsorship has been canceled and his high jersey even removed from the display case of his high school. If there’s any silver lining to this terrible tragedy, it is that it has forced people to have frank conversations about the problem of domestic violence.

Some people have been wondering aloud, also, about the disposition of the criminal case that arose from this act. Ray Rice was indicted for aggravated assault but ultimately allowed to enter into a pre-trial intervention (or diversion) program, whereby he will avoid jail or even a criminal conviction so long as he attends and successfully completes an anger management program. Also, seemingly, there is no order of protection preventing him from interacting with his wife.

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Criminal Contempt charges are very serious and can be quite difficult to defend against in some circumstances. The overwhelming majority of the Criminal Contempt cases pursued by prosecutors involve violations of orders of protection, and usually are classified as “domestic violence,” meaning that the complainant and defendant are or were in some sort of romantic or familial relationship.

The least serious of these Criminal Contempt charges is Criminal Contempt in the Second Degree, Penal Law § 215.50, a class A misdemeanor punishable by up to one year in prison. The statute reads as follows:

A person is guilty of criminal contempt in the second degree when he engages in any of the following conduct: 1. Disorderly, contemptuous, or insolent behavior, committed during the sitting of a court, in its immediate view and presence and directly tending to interrupt its proceedings or to impair the respect due to its authority; or 2. Breach of the peace, noise, or other disturbance, directly tending to interrupt a court's proceedings; or 3. Intentional disobedience or resistance to the lawful process or other mandate of a court except in cases involving or growing out of labor disputes as defined by subdivision two of section seven hundred fifty-three-a of the judiciary law; or 4. Contumacious and unlawful refusal to be sworn as a witness in any court proceeding or, after being sworn, to answer any legal and proper interrogatory; or 5. Knowingly publishing a false or grossly inaccurate report of a court's proceedings; or 6. Intentional failure to obey any mandate, process or notice, issued pursuant to articles sixteen, seventeen, eighteen, or eighteen-a of the judiciary law, or to rules adopted pursuant to any such statute or to any special statute establishing commissioners of jurors and prescribing their duties or who refuses to be sworn as provided therein; or 7. On or along a public street or sidewalk within a radius of two hundred feet of any building established as a courthouse, he calls aloud, shouts, holds or displays placards or signs containing written or printed matter, concerning the conduct of a trial being held in such courthouse or the character of the court or jury engaged in such trial or calling for or demanding any specified action or determination by such court or jury in connection with such trial.

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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 violence” include 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 Strangulation, Stalking, 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.

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We have previously covered the basics of the recently (2010) enacted set of crimes involving strangulation. As noted, Penal Law section 121.11 states that “A person is guilty of criminal obstruction of breathing or blood circulation when, with intent to impede the normal breathing or circulation of the blood of another person, he or she: a. applies pressure on the throat or neck of such person; or b. blocks the nose or mouth of such person. Criminal obstruction of breathing or blood circulation is a class A misdemeanor.”

Strangulation in the Second Degree under Penal Law 121.12 states that “A person is guilty of strangulation in the second degree when he or she commits the crime of criminal obstruction of breathing or blood circulation, as defined in section 121.11 of this article, and thereby causes stupor, loss of consciousness for any period of time, or any other physical injury or impairment. Strangulation in the Second Degree is a class D felony.”

Some lawyers have questioned, however, whether it would be possible to be convicted of an Attempt to Commit the Crime of Strangulation in the Second Degree, or whether such attempt would be completely encapsulated by the misdemeanor charge. For example, suppose the facts were that a man intended to impede the normal breathing or circulation of the blood of another person by applying pressure to the neck of another person and that person did NOT suffer stupor, loss of consciousness for any period of time, or any other physical injury or impairment. That would clearly be a prima facie case of the misdemeanor charge.

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There are three separate menacing statutes in New York, each specifying a different gravity of offense. Menacing is often paired with Stalking (Penal Law section 120.45) and Aggravated Harrassment (Penal Law section 240.30) charges, but can be charged as a standalone offense.

The basic charge is Menacing in the third degree (Penal Law section 120.15) is defined as follows:

A person is guilty of menacing in the third degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury. Menacing in the third degree is a class B misdemeanor.

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Although it has always been illegal in New York to intentionally cause physical injury to another person (see Assault, Chapter 120.00 of the Penal Law), a relatively new set of laws has increased the penalties for the strangulation of another person. New York Penal Law Section 121.11 (Criminal Obstruction of Breathing or Blood Circulation) makes it a class A misdemeanor to apply pressure on the throat or neck of another person, or block the nose or mouth of another person, with the intent to impede the normal breathing or blood circulation of that person. This crime can be a Class D violent felony (Strangulation in the Second Degree, Penal Law 121.12) where stupor or a loss of consciousness is caused by the act, and can be a Class C violent felony (Strangulation in the First Degree, Penal Law 121.13) where the person suffers serious physical injury as a result. Obviously, there is an exception for people who impede breathing/blood flow for medical/dental purposes, such as surgery (Penal Law Section 121.14).

In our experience, these cases most often arise in domestic situations. We have seen a number of people charged with Attempted Strangulation in the Second Degree – which is a very serious E felony – in cases where they have attempted to restrain or defend against a hysterical or aggressive wife, girlfriend or partner. Also, we have seen many cases in which complainants assert that they lost consciousness as a result of strangulation, when in reality, they had simply passed out due to drug or alcohol abuse. Finally, some strangulation cases may be defensible as consensual acts of auto-erotic asphyxiation. Thus, understanding the precise facts of the encounter, as well as the medical and scientific evidence, is absolutely critical in defending these cases.

If you or a loved one have been arrested for a violation of the Strangulation laws, you should consider contacting the experienced criminal defense lawyers at Galluzzo & Arnone LLP. Their lawyers include three former prosecutors in the Manhattan District Attorney’s Office, all of whom investigated and prosecuted dozens of assault- and strangulation-related cases. (Matthew Galluzzo, in particular, was a supervisor in the Domestic Violence Unit and regularly advised and trained other prosecutors in how to effectively investigate and prosecute domestic violence cases.) As criminal defense lawyers, they have leveraged their experience on behalf of their clients, many of whom have seen their assault and domestic violence-related charges dismissed as a result of their efforts. Call them or email them to schedule an appointment.

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The arrest of a friend or loved one often happens unexpectedly. The majority of New Yorkers do not have any experience with the criminal justice system and are often thrust into a position of having to deal with the possibility of bail being set. This post will explain a few factors that go into a judge’s decision as to whether to set bail, explain what steps should be taken immediately before the arrested person sees the judge, and finally, if bail is set, will explain the basic process.

First of all, the question may arise, “What is bail?” Bail is simply a condition set forth by the Court that the defendant must first comply with before he can be released from the custody of the New York City Department of Corrections. In most cases, that would be an amount of money designated by the judge in either cash or bond. The difference between these two methods of bail will be explained later.

It should be noted that in the case of many first-time offenders, no bail will be set at all. This is because the purpose of bail is to ensure that the defendant returns to court to answer for the charges. Contrary to popular belief, bail is not supposed to be “preventative detention,” or a way to prevent people from committing future crimes. Thus, if a defendant is an otherwise law-abiding citizen, and the charge is not serious enough to warrant bail, a judge may simply release him or her on their own recognizance. This is sometimes called “ROR.” In other cases, however, a judge may determine that a certain amount of bail is appropriate even for a first time offender. The criteria that the judge will consider is set forth in the Criminal Procedure Law:

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Before you send that threatening email or text message, or scream in anger at someone over the phone, you should take a deep breath and stop to consider whether you might actually be committing a crime by doing so. In New York state, Aggravated Harassment in the Second Degree (Penal Law 240.30) is a Class A misdemeanor punishable by up to 1 year in jail. A person is guilty of this crime, when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Either (a) communicates with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or (b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, by telegraph, or by mail, or by transmitting or delivering any other form of written communication, in a manner likely to cause annoyance or alarm; or

2. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication; or

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Many juveniles in New York City are arrested every week and given a family court summons for a crime that would otherwise subject him or her to a permanent criminal record. A juvenile is “defined” in the Penal Law as a person under the age of sixteen years old. To be more precise, it is actually a defense to a criminal charge that the defendant was less than sixteen at the time the offense was allegedly committed. See Penal Law 30.00. Often times juveniles are arrested for such offenses as Criminal Possession of Marijuana in the Fifth Degree, Penal Law 221.10, Unlawful Possession of Marijuana, Penal Law 221.05, Petit Larceny, Penal Law 155.25, Assault in the Third Degree, Penal Law 120.00, Criminal Mischief, Penal Law 145.00, and Making Graffiti, Penal Law 145.60. However, in other cases, the charges can be more serious, especially where a victim has been killed or seriously injured or a felony charge, such as a drug sale, are involved.

The Family Court process can be daunting for a family inexperienced in defending against allegations such as these, even in juvenile arrest matters. A young defendant and his or her family will most likely be interviewed by probation and if the charge warrants it, be brought before a judge where an adjudication of juvenile delinquency can be made either through an admission or, in some cases, after a fact-finding hearing. The Family Court Act requires the attendance of the juvenile respondent and his or her counsel to be present during such a hearing. It is for this reason, that it is important that your child’s rights are protected by a lawyer experienced in handling juvenile arrest cases. If an adjudication of juvenile delinquency is made, the Family Court Act requires a dispositional hearing to take place within 10 days of the adjudication (if the charge is a felony) or within 50 days of the adjudication (for all other cases). The possible outcomes of a dispositional hearing for a juvenile defendant are three: (i) a conditional discharge, which for all intents and purposes is an order from the court requiring the juvenile to stay out of trouble and comply with whatever other conditions the court deems necessary to correct the behavior, (ii) probation, which would imply reporting to a probation officer for a set period of time, or, in extreme cases (iii) placement in a juvenile detention facility. The court’s decision will be the result of a balancing of the needs of the juvenile against the need to protect the community.

Simply put, should a loved one or family member of yours require assistance in sorting out a family court or adult criminal matter, you should call Galluzzo & Arnone LLP.