New York City Domestic Violence Charges
By Don Murray, Esq.
If the police or the District Attorney's Office labels your case a "domestic violence" or "special victims" case, then your case takes on layers of difficulty not associated with other cases in the system (even compared with cases of seemingly greater violence).
The real reason these cases take on extra layers of difficulty is a simple, basic motivation for human behavior: FEAR. Every agency that comes into contact with a domestic violence case (police, prosecutor, and judicial) is driven by FEAR of the consequences if THIS case is going to be THE CASE.
THE CASE is the seemingly "minor" domestic incident in which the accused walks away from the courtroom, returns home, and murders the complaining witness. Such cases, however rare and unpredictable they are, universally make headlines throughout the city.
The Judge is blamed, the Police are blamed, and the Prosecutors are blamed because it is easy to blame them. (Why the person who commits the criminal act isn't blamed is a good question.) Careers are held back and even ruined as a result of such publicity. Is it totally insane? Is it wrong and unfair? Of course. But that is the FEAR that is underneath the way the system treats nearly all domestic violence allegations.
And as you might expect, a system driven by FEAR leads to unexpected, illogical results.
The first step in this fear-driven process is police interaction.
Police officers who respond to a call of domestic violence (regardless of who makes the call) are required by police department policy to make an arrest (or at least this what the police will often will say to the people they arrest). This policy exists because the police don't want to be blamed for failing to arrest a person who five minutes later murders his/her spouse. Everyone seems to believe that the police are or ought to be able to predict the future.
Initially such a police policy might even seem a reasonable response on the "If it saved one life..." theory. The problem of course, is that such a policy sweeps up any number of idiotic, childish, stupid situations into the criminal justice system. It is a shining example of just how bad the criminal justice system is at dealing with family issues.
The police policy is really a fear-driven means to pass the responsibility for each case to someone else, namely the District Attorney's Office. "Arrest Everyone and Let the Prosecutor Sort 'Em Out" is a fair summary of the Police policy. Having arrested everyone possible, the Police will never be able to be held responsible by the New York Post if the accused later commits an offense even worse than the one currently charged. "All we can do is arrest them. It's up to the Prosecutor to make sure they get punished," the Police Department will say.
And the police approach might "work" if the Prosecutor did "Sort 'Em Out". But as a practical matter, the Prosecutor doesn't really "sort 'em out" for the same reason the police don't want to "sort em out". They don't want to take responsibility for using their judgment.
Once someone actually uses his discretion to make a decision, that person is subject to being held responsible by the New York Post if it turns out that it was THE CASE.
So the District Attorney's Office sometimes seems to take a "Prosecute everyone and let the Judge or Jury sort em out" approach. At arraignments, for example, the Prosecutors as a general rule request bail in just about every single case they label domestic violence, regardless of the defendant's background.
This forces a decision on the Judge, who must actually make a decision.
By requesting bail the Prosecutors protect themselves from criticism by the New York Post by making it possible for them later to say "We requested that the Judge set bail. We did all we could do." If the Judge decides to release a person without bail, then the New York Post responsibility rests with the Judge.
Now this of course places the Judge in a politically awkward position. The Judge must actually use his or her discretion. Therefore, the judge is subject to New York Post "Judge is responsible for all future actions of people who come before her" criticism.
How Judges respond to this difficulty depends on the personality of the Judge. Sometimes Judges will give the Prosecutors exactly what they ask for. In other words, if the Prosecutors ask for $500 bail, the judge will set exactly that. This is actually an interesting way of attempting to deflect New York Post criticism. If the defendant makes bail and kills someone, the Judge can always take the position that he set exactly what the Prosecutors asked for and that he must assume that the Prosecution evaluated the case (and the defendant) when requesting the bail. The Judge can take the position that if the Prosecutors had requested higher bail he would have set higher bail and the tragedy would never have happened.
Temporary Orders of Protection (TOPs)
Add Temporary Orders of Protection to the above recipe for seemingly absurd results and you begin to gain an understanding of just how terrible Criminal Court is at dealing with domestic issues.
A TOP is an order from a Court to stay away from another person and to avoid doing what is otherwise illegal anyway. Violating a TOP is now a felony offense in some situations and a misdemeanor in all others. Ideally, TOP's are designed to provide a powerful reason to in fact stay away from another person (the threat of criminal conviction and jail).
Judges in New York City issue TOPs in virtually (almost without exception) every case in which the Prosecutor requests one. Right or wrong, that's the way it is. Not issuing an Order of Protection is perceived as an extremely dangerous thing to do. The New York Post would have a field day if something happened in a case in which a judge refused to issue a requested TOP.
In the best light, this process could be described as a "Chicken Soup - It can't hurt" philosophy. Forget about the fact, however, that law is supposed to operate based on reason rather than on whether a particular ruling "can't hurt".
TOP's provide no REAL protection, however. No TOP has ever stopped a bullet or deflected a knife.
And also, the TOP gives the complaining witness, a private citizen, the power of arrest over another person. Once you have a TOP in your favor, you can have the named person arrested at your whim. All it takes is a call to the police. "He saw me on the street and threatened to kill me" is all it takes. The police don't want to "take any chances" so the person is arrested. Let the Prosecutor sort 'em out. And the Prosecutor doesn't want to be blamed for anything, so they prosecute and let the Judge (or jury) sort 'em out.
And think about who is given that power of arrest -- a person who is by definition is in an extremely emotional state and either justifiably angry or a prior maker of false allegations. Either way, the potential for abuse is extreme. Police and prosecutors refuse to accept that the potential for abuse (and actual abuse of TOP's) is incredible. Or perhaps they do accept that the potential for abuse is incredible and choose to ignore it for the sake of the general cause.
None of them wants to take the responsibility for undertaking to examine claims of violations of TOPs, because none of them wants to take responsibility even if they made a perfectly rational decision in a case. That future human behavior (especially in the realm of strong emotions) is impossible to predict accurately doesn't matter to The New York Post so it doesn't matter to the system.
In other words, given this fear-driven system, don't expect logical results.
The policies of the District Attorney's Office, the Police, and the reaction of judges to cases involving domestic violence combine to treat many cases as if they were THE CASE of the madman who will immediately kill everyone involved. And it is so clearly a case of covering themselves against absurd New York Post stories that they often don't seem to understand how absurd the results often are.
For example, in a case of ours in Queens, a client's girlfriend did not want to proceed against her boyfriend and affirmatively stated that some of the claims she originally made when she was angry were NOT TRUE. She affirmatively said she did NOT want a TOP so that they could be together.
Nevertheless, the Prosecutor refused to dismiss and only would offer a non-criminal offense called harassment to resolve the case. If the client accepted the deal, all he would have had to do to walk out of the courtroom FOREVER was to agree that he "harassed" his girlfriend. If he simply spoke those magic words, the Prosecutor and the Judge were perfectly prepared to permit him to leave the Court FOREVER and to be with his girlfriend as if nothing ever happened.
But our client refused even to admit that he harassed his girlfriend. Since the Prosecutor refused to dismiss the case, the case had to be adjourned. Over our objection, the Judge issued a FULL TOP ordering the defendant to stay away from the complaining witness completely.
Remember that moments before, the Judge was perfectly content to permit our client and the complaining witness to go off together into the sunset. All he had to do was say the word "yes" when asked whether or not he harassed his girlfriend. But because he refused to speak that magic word, the judge insisted that the girlfriend have a full TOP. This was despite the fact that she was in Court specifically requesting that she NOT be given a full TOP.
Therefore, our client risked arrest on a new charge if he had any contact with the complaining witness until the next court date. Somehow, our client stopped being a threat to the complaining witness if he spoke the magic word to the judge (even if he didn't really mean it). But by not speaking the magic word, our client was such a serious threat to the complaining witness that the judge had to overrule the complaining witness' own judgment and order him to stay completely away.
Does it make sense? Of course not. But that's what happens when the system is driven by fear. Results can be irrational.
Domestic Violence Accusations in New York City
If you have a criminal case labeled domestic violence in new york city, you can expert to have your case treated far differently than other types of criminal cases. This article explains how differently your domestic violence case will be treated and attempts to explain why the system treats domestic violence cases differently.
Call 718-268-2171 for more information about Domestic Violence cases in New York or to schedule your free consultation with a New York criminal defense lawyer from Shalley &
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