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.
Most domestic violence cases are misdemeanors, and in most cases, for a misdemeanor case to progress, the prosecutors need a sworn deposition (sometimes called a supporting deposition or corroborating affidavit) from the victim or primary witness. As a practical matter, if the complainants refuse to sign these documents, then it is normally very difficult for the prosecutors to prosecute these cases. Without these supporting depositions, many cases of domestic violence will get dismissed for failure to prosecute.
However, there are many misdemeanor cases of domestic violence in which the prosecutors do not require supporting depositions. Prosecutors can sometimes use “excited utterances” made by complainants to police officers in the heat of the moment to prove the crimes. They can also use recordings of frantic phone calls made to 911. Certainly, relevant third party or neutral witnesses can be called to testify against defendants where complainants or victims refuse to cooperate. In cases of Criminal Contempt (violations of orders of protection), there are typically neutral witnesses or police officers that can testify about the two parties being together when they shouldn’t be, per to the court order. In short, a complainant’s refusal to cooperate does not at all guarantee a dismissal in a misdemeanor case of domestic violence.
In felony cases, complainants can be subpoenaed to testify under oath before the grand jury. Some complainants are tempted to lie and say that their attackers did not in fact assault them. The problem with this approach is that it means that the either their initial report to police was false (and it is a crime to make a false report to police), or their testimony before the grand jury is false (and that would constitute the felony crime of perjury). Put another way, lying before the grand jury under such circumstances is likely to get the complainant into serious trouble.
In domestic violence cases, judges almost automatically order full orders of protection in favor of the alleged victim of the crime. This happens at arraignments, or the defendant’s first court appearance following the arrest. Some victims of domestic violence think that they can simply disregard the orders of protection, and some defendants believe that the person protected by the order can waive the order. That is not the case at all, however. Time after time, defendants are invited back home by the person protected in the order, only to get arrested when police officers do a follow up visit of the home and discover the defendant living with the person that the judge has ordered him to stay away from. The applicable charge in this case would be Criminal Contempt in the Second Degree, and it is very difficult to defend against under these circumstances.
If you or a loved one have been arrested for a crime of domestic violence, you should strongly consider contacting the experienced criminal defense attorneys at Galluzzo & Arnone LLP.