Queens Domestic Violence

The incidence of domestic violence has reached an alarming rate. With many high profile cases dominating the media, New York law enforcement as well as law enforcement agencies across the country are under increased pressure to aggressively prosecute those accused of domestic violence. Domestic violence is a catchall term to describe crimes involving people who are in a romantic relationship, are members of the same family, or who live in the same household. Types of domestic violence range include stalking, harassment, assault, rape, murder, as well as other crimes. A victim of domestic violence can be a wife, husband, girlfriend, boyfriend, child, other relative, or housemate. While domestic violence is clearly a problem, in their zeal to punish alleged perpetrators of domestic violence prosecutors do not always get it right. If you are charged with a domestic violence offense contact an experienced Queens Domestic Violence Lawyer who will work aggressively to help ensure the best possible outcome given the circumstances of your case.

What is Domestic Violence?

There is no one criminal offense in New York that is called "domestic violence." In other words, you cannot be arrested and charged with domestic violence. Domestic violence, also referred to as family violence or intimate partner violence, is a general term to describe acts of violence or threats that occur between people who have a family or intimate connection. Examples of crimes that are often associated with domestic violence include harassment, sexual assault, assault, reckless endangerment, stalking and strangulation.

Harassment and aggravated harassment. Harassment and aggravated harassment are common charges related to domestic violence. Harassment is behavior that is meant to annoy, intimidate or alarm someone. It can involve physical contact that does not result in injury such as kicking or shoving. Or it can involve filing false reports against someone or disseminating untrue information about someone. N.Y. Pen. Law § 240.25 and 240.26. The more serious charge of aggravated harassment involves harassing someone using written or electronic means of communication such as a letter or telephone. N.Y. Pen. Law § 240.30. For example, in People v. Bohlman, 913 N.Y.S.2d 497 (2010), the defendant faced several charges, including aggravated harassment in the second degree based on calling, texting and mailing letters to the victim, defendant's ex-girlfriend.

Sexual assault. Contrary to what many believe it is possible to sexually assault your spouse or partner. If you have sexual intercourse, oral sex, anal sex, or perform any other type of sexual act with someone without that person's consent, you would have sexually assaulted that person, regardless of the relationship you have with that person. Examples of the sex crime charges that you may face include: sexual misconduct, sexual abuse, and rape.

Assault. You have committed assault if you cause physical harm to another person regardless of whether it was done intentionally, recklessly or with criminal negligence. It does not matter if you did not intend to injury. All that is required is that your recklessness or negligence resulted in the physical harm to another person. N.Y. Pen. Law § 120.00. There are different assault offenses in the New York criminal code based on the extent of the victim's injury and who the assault was accomplished. For example, if you shoot your boyfriend with a gun, causing him to suffer life-threatening injuries, you would face a charge of assault in the first degree. N.Y. Pen. Law § 120.10. On the other hand, if you kick your ex-wife in the abdomen cracking her rib you may face a charge of assault in the second degree. N.Y. Pen. Law § 120.10. If you shove some against a wall resulting in a bump on the head that is painful for only a couple of days, you may only face a charge of assault in the third degree. N.Y. Pen. Law § 120.00

Reckless endangerment. Reckless endangerment is different from assault in that assault involves causing a victim injury, while reckless endangerment involves engaging in conduct that creates a significant risk of causing another person serious injury. N.Y. Pen. Law § 120.20. To be charged with reckless endangerment in the first degree, the prosecution must establish that not just that your actions posed a substantial risk of serious injury to another person, but that your actions showed a depraved indifference to human life and posed a risk of death to another person. N.Y. Pen. Law § 120.25

Stalking. If you follow another person such as your girlfriend or boyfriend, or if you communicate with that person in a way that makes that person fear for his or her safety, you are a stalker. N.Y. Pen. Law § 120.45. There are 4 stalking offenses: stalking in the fourth degree, third degree, second degree, and first degree. The most serious stalking offense is stalking in the first degree. You will face this charge if while stalking someone you also intentionally or recklessly caused the victim physical injury, or if you also commit a sex crime against the person you stalked. N.Y. Pen. Law § 120.60.

Stalking in the fourth and third degrees are misdemeanors, with penalties of up to one year in jail. Stalking in the second degree is a Class E felony with a possible sentence of up to 4 years in prison, while stalking in the first degree is a Class D felony with a possible sentence of up to 7 years in prison.

Strangulation. Strangulation involves obstructing the breathing or blood circulation of another person. To face a charge of strangulation in the second degree, when causing the obstruction of the breathing or blood circulation of another person you also cause that person to lose consciousness, fall into a stupor, or cause a physical injury. N.Y. Pen. Law § 121.12. A strangulation charge will be raised to the more serious charge of strangulation in the first degree if the victim suffers serious injury. N.Y. Pen. Law § 121.13.

What Happens if I am Arrested for a Crime Related to Domestic Violence?

If you are arrested for a crime related to domestic violence you will be taken into custody at the local police precinct. Next you will either be given a Desk Appearance Ticket (DAT) and released, or you will be sent to Central Booking to await arraignment. DATs are typically only given in cases where the charge is a misdemeanor. If you are given a DAT it will state where and when you must appear for arraignment. If you do not show up, a warrant will be issued for your arrest. On the other hand, if you are charged with a felony you will be held in Central Booking for up to 24 hours until your arraignment.

The arraignment is the first time you appear before a judge. The Assistant District Attorney (ADA) assigned to your case will let you know the charges you are facing. The judge will also make a decision on bail. The ADA will give the court reasons why bail should be set and recommend an amount. You will argue for low bail or no bail. Factors that the judge will consider in determining bail include:

  • Your ties to the neighborhood
  • Your job
  • Your mental condition
  • Your criminal record
  • Seriousness of the crime with which you are charged

The judge can choose to remand you, meaning that you will have to remain in jail while your case is being resolved. Or the judge can release you on your own recognizance (ROR), meaning that you will not be required to post bail to be released. However, if you are released it is imperative that you show up at court for every hearing and for each day of your trial. If you do show up you will be considered a fugitive and the judge will issue a bench warrant for your arrest.

At some point during the process you may reach a plea agreement with the prosecutor. You will likely agree to plead guilty to a charge that is less serious than the original charge. The prosecutor may offer you a deal in order to avoid going to trial. Or, the prosecutor may be unsure as to whether or not he or she will be able to win a conviction if the case goes to trial. Whatever the reason, if you accept a plea agreement, the prosecutor will be able to close the case and declare a victory. A plea deal may be attractive to you as you will not face the cost of an expensive trial and you do not risk a more severe sentence. However, the result will be that you will have been convicted of a crime and you will be sentenced.

What is an Order of Protection?

If you are charged with a assault with a knife, at the beginning of your case the prosecutor may request that the judge issue an Order of Protection in favor of the victim to make sure that the victim is not harmed or threatened while the criminal case is being adjudicated. The Order of Protection may be a "stay away" order or a "refrain from" Order of Protection. If the Order of Protection is a stay away order, then you must not have any type of contact with that person. This means that you must cannot have any physical contact with the victim, you must stay away from the person's home, school, or job, you must not call, text, email, or fax the person, you must not communicate with the person through a third party, and you must not send the person gifts. A stay away order may also be exclusionary meaning that if you live with the victim you are required to move.

If there is a refrain from Order of Protection, then you are prohibited from doing specified acts such as harassing, intimidating, or threatening the victim. While a criminal court Order of Protection that is issued at the beginning of a criminal case is generally temporary, depending on the outcome of the case, a temporary Order of Protection may become final-- meaning that it will remain in effect for up to 8 years. It the court concludes that there is no basis for the Order of Protection, it will be dismissed.

However, if you violate an Order of Protection there will be serious consequences. For example, if you are out on bail and you violate the Order of Protection, your bail may be revoked and you may be sent to jail. If you are on probation, violating an Order of Protection will be a violation of the terms of your probation. You will likely be sent to prison.

What is the Punishment for A Conviction for a Domestic Violence Crime?

If you are convicted of a domestic violence crime there are number of ways that the court may resolve your case.

Prison. You may be sent to prison. The amount of time in prison depends on several different factors the most important of which are the classification of the crime and your criminal record.

  • Class B misdemeanor: The maximum possible prison sentence is 3 months days.
  • Class A misdemeanor: The maximum possible prison sentence is 1 year in jail.
  • Class E felony: The maximum possible prison sentence is 4 years in prison.
  • Class D felony: The maximum possible prison sentence is 7 years in prison.
  • Class C felony: The maximum possible prison sentence is 15 years in prison.
  • Class B felony: The maximum possible prison sentence is 25 years in prison.

If you have not been convicted of a crime in the past 10 years, the judge will not be required to sentence you to prison at all, unless the crime you are convicted of is a violent felony. If you have been convicted of a felony in the prior 10 years, then the judge will be required to send you to prison for at least a minimum amount of time.

Probation. All or part of your sentence may be probation. For a Class B misdemeanor the term of probation would be 1 year, for a Class B misdemeanor, 3 years and for a felony, 5 years. If you are convicted of a sex crime the term will be 6 years for a misdemeanor and 10 years for a felony. While probation is preferable to being incarcerated you should know that serving probation is not without challenges. For the entire time that you are on probation you will be required to follow strict rules that are designed to help prevent you from committing another crime. If you break any of these rules there will be severe consequences. Typical rules include:

  • You must not commit a crime. If you commit even a "minor" infraction including a misdemeanor, you could be in violation of the terms of your probation.
  • You must not associate with other people who you know have criminal records
  • You must not patronize unlawful or disreputable places. This means that you are not permitted to go to places known for illegal activity.
  • You must not possess controlled substances or drug paraphernalia
  • You must consent to warrantless searches without probable cause
  • You must submit to home visits by your Probation Officer
  • You must regularly report to your Probation Officer
  • You cannot leave the State of New York without permission.
  • You must let your Probation Office know if you move. You cannot move out of state without permission. Your Probation Officer will have to approve such a move and will have to make arrangements with your new jurisdiction to take over your probation supervision.
  • You must not own, possess or purchase a gun
  • You must refrain from drinking alcohol
  • You must complete any ordered substance abuse treatment or medical treatment
  • You must stick to a curfew
  • You must have job or be enrolled in school. If you change jobs or schools, you must let your Probation Officer know.

Financial consequences. In addition to being sent to prison, as part of your sentence the judge may order you to pay fines, fees, and restitution. For felony assault the fine would be up to $5,000, while for a misdemeanor offense the fine would be up to $1,000. Fees include a "mandatory surcharge" of $175-$300 as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If your sentence includes probation or post-release supervision you will be required to pay a monthly supervision fee of $30. As sex crime conviction will bring even more fees such as a fee related to sex offender registration.

Restitution is money that you may be ordered to pay that will go directly to the victim. The amount of restitution will be based on the losses suffered by the victim such as medical bills. Generally, the maximum amount of restitution is $10,000 for a misdemeanor and $15,000 for a felony. Furthermore, you will also have to pay a fee to the company charged with collecting the restitution from you.

Failure to pay a fine, fee or restitution may result in you being charged with yet another crime that could mean a year in prison. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Long-Term Consequences. Even if you are convicted of only a misdemeanor and receive a sentence that includes little or no jail time, there will be other consequences that are life-altering. You will have a criminal record that will impact many aspects of your life. For example, you will be barred from working in certain professions such as being a teacher, nurse, home healthcare worker or lawyer. In addition, you will no longer to be able to own a gun, serve in the military, or serve on juries. Some colleges may refuse admission or ban you from living on campus. You will also not be able to receive certain government benefits such as welfare or federally funded housing. If you are not a U.S. citizen, under federal law you may be subject to deportation.

Furthermore, you are convicted of a sex offense you will also be required to register as a sex offender. This means that upon conviction, you will have to register certain information with a designated law enforcement agency. N.Y. Cor. Law § 168. You will have to register for at least 20 years. In some cases, you will be required to remain on the sex offender registry for the rest of your life. As a registered sex offender several restrictions will be placed on you. For example, you will not be able to move out of New York state without informing the New York Department of Criminal Justice Services. If you do move, you must let the local law enforcement that you have moved to that jurisdiction, and you must follow that jurisdiction's sex offender registration rules. Even if you do not leave New York, you will have to keep the Department of Criminal Justice Services informed of your address. Some sex offenders will have to verify their address to the police every 90 days. You will also have to report to the local police and have your photograph taken every three years. You may have to let the police know the name and address of your employer, and the name of the school you are attending. If you do not follow these rules, you can be arrested and charged with a Class D felony that could result in jail or prison time.

Domestic violence court

When you are involved in a domestic violence crime, your case may be handled by a special court called the Integrated Domestic Violence Court (IDV). To be eligible for IDV court, the parties involved must have a criminal domestic violence case as well as a family court case or a matrimonial case. While all cases will be adjudicated separately, a single judge will oversee all cases to ensure that the outcomes are coordinated and not inconsistent.

Furthermore, cases handled in IDV have systems in place to facilitate access to community services such as victim assistance services and to ensure intensive defendant monitoring. For example, if you are on probation, the court will designate someone to work closely with you and the IDV to oversee compliance with the terms of your probation.

The consequence of being convicted of a domestic violence crime is that you will likely end up incarcerated for an extended period of time. In addition, even if you are not incarcerated, but receive a sentence that includes just probation and a fine, you will end up with a criminal record that will stay with you for the rest of your life. Thus, if you have been charged with any crime related to domestic violenc, it is important that you are represented by someone with experience. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts, including those accused of domestic violence involving stalking, reckless endangerment, rape, assault, sexual assault, strangulation and murder. Contact us at 1.800.NY.NY.LAW (1.800.696.9529) to schedule a free, no obligation consultation regarding your case. We serve those accused of domestic violence in the following locations:

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