New York Domestic Violence Legal Questions

Before submitting a motion, an attorney has to determine whether there are viable legal grounds for the motion. When we talk about a motion to dismiss, this can include a number of different potential grounds, including speedy trial, facial sufficiency, or even in the interest of justice.    It is unclear by your post what specific grounds you believe the motion to dismiss should be submitted. Is there a specific reason that you believe your case should be dismissed on motion?    Sometimes, folks feel that a case should be dismissed immediately because there is insufficient evidence. This is unfortunately not necessarily the case - the evidence, and whether the District Attorney has sufficient evidence to prove the charges against you beyond a reasonable doubt - is typically an issue for trial. Without articulable, legal grounds for dismissal, a motion to dismiss may simply not be viable.  With that being said, these are issues that your current attorney should speak with you about. If you are unhappy with your current attorney, that is a separate issue in itself. While there are certainly some outstanding public defenders, there are also many public defenders who are not as great. When you are assigned a public defender, you unfortunately do not get to pick your lawyer - that is a benefit that you do receive when you hire one.    I hope all this information is helpful. ... Read More

While criminal contempt is a serious charge, it is not necessarily one that can't be resolved without jail time. Generally speaking your attorney should be negotiating with the District Attorney's Office towards a possible disposition that would not involve you going to jail. Typically these can include violations, adjournments in contemplation of dismissal, or even in a worst case scenario a misdemeanor with a program. Your best bet though is to contact an experienced criminal defense attorney to help you by negotiating with the DA. Good luck!... Read More

Domestic Violence cases can be a bit tricky. District Attorney's Offices operate under the impression that a large percentage of the time, victims on DV cases end up forgiving their partners, recanting their statements, and become uncooperative with the DA's office overall.  It sounds to me like you are the complainant on the case you're speaking about. If that's the case, the most important thing for you to do, or rather not do at this point is try to contact your partner if there is an order of protection issued against them in your favor. Even if you don't want the order of protection, that order is a COURT order and cannot be waived by anyone other than the Court. If the defendant on the case is found to be speaking with the complainant, regardless of whether the complainant is the one who initiated the contact, the defendant will be rearrested and charged with Criminal Contempt for violating the order. Additionally, if you have a "family relationship" with the defendant i.e. husband/wife, you have a child in common, etc., you may be able to have the order modified in Family Court to make it easier to speak with the defendant.  With that being said, as far as how you can "withdraw" the case, you should get in contact with the defendant's attorney and let them know that you do not want to proceed with the case, and that you are seeking to sign a dismissal affidavit. His/her attorney should then draw one up for you to sign and have notarized. This can oftentimes be helpful in these types of cases. Additionally, if the ADA contacts you, you should let them know that you will NOT sign a supporting deposition or cooperate because you do not want to continue with the case.  Bearing that in mind, you should be aware that the DA's office may not outright dismiss the case even with a dismissal affidavit. Sometimes, particulary in severe cases, they try to prosecute through alternate means, such as using photographic evidence, 9-1-1 phone calls, hearsay statements that are admissible because they are subject to exceptions to the rule, etc. If you are interested in learning more about domestic violence and orders of protection, I have an article on OOP on my blog that you may find helpful. https://www.michaelschillinger.com/blog/2020/12/understanding-temporary-orders-of-protection-tops/... Read More

Order of Protection are typically issued in two ways.    1) Through the family court - if there is some type of intimate relationship a person can make an application for an order of protection in the family court - these are some examples - related by blood or marriage, have a child in common, they were in an intimate relationship, or they were in a relationship and lived together. It doesn't sound like this is the case here.  2) Through the criminal court - in order for the criminal court to get involved and issue an order of protection, the mother of your daughter would have to contact the police department and have your girlfriend arrested. In order to do that, some type of criminal conduct would have had to have occurred, otherwise the police will not make an arrest if they do not have probable cause to do so. If the mother of your daughter can credibly allege that your girlfriend committed some type of criminal conduct against her or against the child, then it is possible that the police will get involved.    I hope this information is helpful.   ... Read More

You reference a criminal court case in your question but say it's a family court order so I wasn't sure whether the Full Order of Protection comes from the criminal court or family court. Either way though, you should be able to bring an application in the family court to modify the order of protection to a limited order of protection where you can be around your husband. Your husband may want to check with his probation officer though to ensure that there was no specific agreement with the DA or Probation that the order would not be modified for the duration of the probation period. ... Read More

If you made false allegations against your significant other and want the case dismissed, you should contact your significant other's Attorney and speak with them. They will be able to assist you with getting the charges dropped and vacating the order of protection. It is important to note though, that you should not contact your significant other because even if you initiate the contact, that can still be viewed as a violation of the order of protection on their end and can result in additional criminal charges against them.   In terms of whether you will be charged with perjury or filing a false police report, that's impossible to say definitively, but typically the police department does not arrest potential domestic violence victims for allegations that they have made. With that being said, if you are concerned that you may be arrested, you should contact an attorney immediately and discuss your options directly with them.   ... Read More

If you made false allegations against your significant other and want the case dismissed, you should contact your significant other's Attorney and speak with them. They will be able to assist you with getting the charges dropped and vacating the order of protection. It is important to note though, that you should not contact your significant other because even if you initiate the contact, that can still be viewed as a violation of the order of protection on their end and can result in additional criminal charges against them. ... Read More

Based on what you're saying, I'm assuming you are the complainant on the domestic violence case that is being prosecuted by the District Attorney's Office. Typically Criminal Court orders of protection are subject to Family Court modification - what this means is that you may bring your order of protection to the Family Court in your county to have it modified from a full order of protection to a limited order of protection. Essentially this means that the subject of the order of protection would then be able to communicate with and be around you without having fear of being rearrested, but they are still ordered by the Court to refrain from assaulting you, harassing you, or committing any other crime against you. If you do not want to go through this procedure, you can attempt to write a letter to the judge, however, the issue may be that the prosecutor is making a plea offer on the case that includes a full order of protection, in which case the final disposition would include that full stay away order. If you are outright looking to dismiss the case, you can certainly contact the prosecutor and let them know that information and they may be more amenable to a disposition that includes a limited order of protection. With all that being said, many District Attorney's Offices in New York will still attempt to prosecute a domestic violence case even if the complainant is uncooperative. They are able to do this by using your 9-1-1 call, prior statements that you may have made, statements the defendant may have made, etc. I hope this information is helpful.    ... Read More

You have the same protections available to you as to any spouse who may be subject to domestic abuse- you have the right to a protective order, if warranted, and to obtain a divorce. You should consult with a qualified attorney. Gerry Wendrovsky, Esq.- Upper West Side Divorce Lawyer www.upperwestsidelawyer.com  ... Read More

If this is a matter in Westchester County, you can call me to discuss this at (914) 527-5367 and/or check my website at RichSweeneyLaw.com. It sounds to me like there will be an issue of evidence. Make sure you keep any hospital records, recordings, texts, e mails and any other proof of what he has done to you and your child. If you can't afford an attorney, ask the Judge for an attorney to be assigned in court.  ... Read More

Filing a false report is a crime. You don't specify what allegations were made that were false. If the part of the statement that was false was important, then you could be charged with filing a false report. Of course it is unfair to the other person not to tell the truth. make an appointment with a lawyer and discuss the facts and how to deal with it.  ... Read More

If you do not show up at the court on the return date, your petition will be dismissed and the temporary order of protection will automatically expire.  Alternatively, you and your boyfriend can appear in court and tell the court that you wish to withdraw your petition because you and your boyfriend have agreed that he will attend counseling and anger management.  The court will then dismiss case on consent.... Read More

Once a person files a complaint, only the District Attorney can consent to withdraw it. Probably the court issued a temporary order of protection against your daughter requiring her to stay away from you and your home. You could go to the arraignment and talk to the defense attorney. If a complainant is subpoenaed to appear in court for a trial, some complainants don't show up and the case is dismissed.... Read More