Westchester County Domestic Violence Against a Girlfriend

It is not uncommon for boyfriends and girlfriends to have disagreements. Unfortunately, it is also not uncommon for such arguments to escalate to physical violence with the girlfriend being the victim. Domestic violence is a general term used to describe violent acts or threats between people in certain types of relationships such as being married, formerly married, dating, living together, and having children together. Domestic violence is also called domestic abuse, family violence, and intimate partner violence. The types of crimes that are commonly involved in these incidents include reckless endangerment, harassment, assault, sexual assault, strangulation, and stalking. Because there are so many domestic violence crimes where a girlfriend is the victim and because the public had demanded that more be done to stop domestic violence, law enforcement is quick to arrest and charge you if your girlfriend accuses you of violence even where it is not clear that you did anything wrong. The consequences of being convicted of a crime related to a domestic dispute are life-changing. If you have been charged with a domestic violence offense based on an incident involving your girlfriend, contact an experienced Westchester County Domestic Violence Against a Girlfriend Lawyer who will explain to you your legal rights and vigorously defend you against the criminal charges.

Definition of Domestic Violence

Under New York law there is no one criminal offense that is called "domestic violence." It is a broad term for violence that occurs between a boyfriend and girlfriend, a married couple, significant others, roommates and family members. Criminal offenses that commonly result from domestic disputes include disorderly conduct, harassment, aggravated harassment, various sex crimes, assault, reckless endangerment, stalking, and strangulation.

Disorderly conduct. Disorderly conduct is a common domestic violence charge. For instance, if you are your girlfriend get into a heated argument or get into a physical fight while riding subway, you can be charged with disorderly conduct. Disorderly conduct is defined as fighting, engaging in violent, tumultuous or threatening behavior, making unreasonable noise, using abusive or obscene language in public, with the intent of causing a public inconvenience, annoyance or alarm. N.Y. Pen. Law § 240.20. Disorderly conduct is not a misdemeanor or felony, but a violation.

Harassment. You will face a charge of harassment if you behave in an annoying or violent way toward your girlfriend. Examples of this type of behavior includes striking, shoving, kicking, following, sending letters or emails for not legitimate purpose, or engaging in other alarming conduct against your girlfriend. N.Y. Pen. Law § 240.25 and 240.26

Sex crimes. Contrary to what many believe it is possible to sexually assault your girlfriend. 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 recklessly or negligently injure another person. It does not matter if you did not intend to injure that person. N.Y. Pen. Law § 120.00. There are several different offenses related to assault. If when you assault your girlfriend with the intent to seriously harm her and you do in fact seriously harm her, you will be arrested and charged with assault in the second degree. N.Y. Pen. Law § 120.05. This type of assault often involves the use of a deadly weapon such as a gun or a knife. However, the "weapon" can be almost anything that can cause someone harm.

Assault in the first degree is similar to assault in the second degree except that the assault was with a dangerous weapon and caused the victim a serious injury, the intent of the assault was to permanently disfigure, or the assault was with depraved indifferent to human life. N.Y. Pen. Law § 120.10.

Reckless endangerment. To face a charge of reckless endangerment, it is not required that you must actually cause harm to another person. The law only requires that you have engaged in conduct that created 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. Stalking is one of the most common types of domestic violence crimes. Stalking is defined as engaging in the following activity:

  • A course of conduct that is likely to cause your girlfriend to fear that you may cause her harm, that you may harm a member of her family, or that you may harm one of her friends or acquaintances.
  • A course of conduct that your girlfriend has asked you to stop and that causes your girlfriend significant mental or emotional damage material harm, including following, telephoning or initiating communication or contact with your girlfriend, a family member of your girlfriend, or a friend or acquaintance of your girlfriend.
  • A course of conduct that is likely to cause your girlfriend to reasonably fear that her job or career is threatened, such showing up at her job, telephoning her there, or otherwise initiating communications with her at her job when she has asked you not to do so.

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 cause injury to your girlfriend. Another reason that you will face this charge is while in the course of stalking the victim you also commit one of the following sex offenses: rape in the third degree, rape in the second degree, criminal sexual act in the third degree, criminal sexual act in the second degree, or female genital mutilation. N.Y. Pen. Law § 120.60 (2).

Stalking in the fourth and third degrees are misdemeanors. Stalking in the second degree is a Class E felony, while stalking in the first degree is a Class D felony.

Strangulation. Strangulation involves obstructing the breathing or blood circulation of another person. While there is also a misdemeanor criminal offense called criminal obstruction of breathing or blood circulation, strangulation is a much more serious offense. 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 her to lose consciousness, fall into a stupor, or cause a physical injury. N.Y. Pen. Law § 121.12. For example, in People v. Fairman, 957 N.Y.S.2d 265 (2012), the defendant, who was the former boyfriend of the victim, was charged with strangulation in the second degree based on twisting a shirt around her neck to the point where she was unable to breathe and experienced blurry vision. 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.

Orders of Protection

If someone accuses you of a domestic violence crime, then that person may also seek to Order of Protection against you. An Order of Protection is issued in order keep victims of violence, abuse, harassment, or threats safe from harm or further harm. An Order of Protection may be a short-term order, an emergency order, or long-term order. An emergency Order of Protection is typically only issued where the petitioner has shown that there is a danger of immediate harm unless an order is issued. An emergency order is valid for only a few days, until a hearing can be held. After a hearing, the court may issue a longer term Order of Protection.

To keep the victim safe the judge has the power to grant a variety of different types of protections and restrictions including that you must:

  • Refrain from contacting the victim
  • Refrain from further abuse including abusing the victim, the victim's children, and the victim's pets
  • Pay child support
  • Pay the victim's hospital bills
  • Move out of the residence, if you live with your girlfriend
  • Stay away from the victim's place of work or school
  • Surrender any guns that you possess

If you violate the terms of an Order of Protection, you may be arrested and criminally prosecuted. N.Y. FCT. Law § 846. This means that not only will you still have to face the original criminal charges based on the act of domestic violence, you will also face a criminal charge related to violating the order of protection.

Arrest and Arraignment

The first step in the criminal process is that you will be arrested and taken to the local police precinct. At the local precinct your personal information will be taken and you will be fingerprinted. Then you will be taken to Central Booking where you will remain until your arraignment.

Within approximately 24 hours of your arrest you will be arraigned. At your arraignment you will learn the exact charges against you. In some cases the charges will be different from what you expected. Based on a review of the evidence, the assistant district attorney assigned to your case may decide to raise or lower the charge, or to add additional charges.

At your arraignment you will also learn whether or not bail will be required. While you were waiting to be arraigned, you were interviewed by a representative from the Criminal Justice Agency (CJA). The judge uses the report from the CJA to help decide what to do about bail. The judge can set a dollar amount for bail. The judge can choose to remand you, meaning that you will have to remain in jail while you await trial. Or the judge can release you on your own recognizance, meaning that you will not be required to post bail.

At some point your case may be resolved through plea-bargaining. You and the prosecutor may arrive at a mutually satisfactory compromise that would require you to plead guilty to a lesser crime that would result in a lighter than if you were found guilty of the original assault charge after a trial. Any agreement that you come to with the prosecutor is subject to the approval of the judge.

Punishment for conviction

If you are ultimately convicted of a crime based on an act of domestic violence against your girlfriend, your punishment may range from probation up to life in prison. It depends on the charge. One of the least severe domestic violence offenses is disorderly conduct. Disorderly conduct is classified as a violation. This means that if you are convicted the maximum possible sentence that you will have is 15 days in jail and a fine of up to $250. However, the vast majority of crimes related to domestic violence are either misdemeanors or felonies. In most cases, if you are convicted you face the possibility of going to prison for many years.

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

Keep in mind that if you are charged with a domestic violence offense, it is possible that you will not be charged with just one offense, but with a variety of offenses. If you are ultimately convicted of several offenses, your sentence will be based on all of the crimes of which you were convicted.

In addition to being sentenced to time in jail or prison, if you are convicted of a domestic violence offense, your sentence may be just probation, or a combination of incarceration and probation. The length of your probation term depends on whether the crime was a misdemeanor or a felony, and whether or not the crime was a sex crime. If the crime was a misdemeanor the mandatory term of probation will be 3 years; for a felony, 5 years. If the crime was a misdemeanor sex crime the mandatory term of probation will be 6 years; for a felony, 10 years. Prison and probation sentences are served concurrently. This means that if you are sentenced to 4 years in prison and 5 years probation for a felony conviction, you will serve the first 4 years of your probation term while you are in still in prison, leaving you to serve only one year probation after you are released from prison.

While probation is certainly very different from being in jail or in prison, probation does come with several restrictions. For example, you may be required to refrain from associating with other people with criminal backgrounds, using alcohol excessively, using illegal drugs, and patronizing disreputable places. You also must show that you are responsible by holding a job, diligently seeking a job and supporting your family. You will have to regularly report to your probation officer. Under New York Criminal Procedure Law, if it is suspected that you have violated the terms of your probation, you will be required to appear in court before the judge that originally sentenced you. The court will determine whether to revoke your probation, continue it, or modify the terms of your probation. N.Y. CPL. Law § 410.70

In addition to possible jail or prison term, probation and fine, if you are convicted of a crime that is also a sex offense, you will be required to register as a sex offender. Under the terms of the New York Sex Offender Registration Act 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. Depending on the risk the court determines that you present to the community, you may have to register 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 the state of New York without informing law enforcement. If you do move, you must let the local law enforcement in your new jurisdiction that you have moved to that jurisdiction. You must then follow the sex offender registration rules of that jurisdiction. Even if you do not leave New York, you will have to keep law enforcement 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.

Defending a criminal case that is based on a domestic violence is complex because of the emotions involved in the relationship between the defendant and the victim. However, just like any criminal case, if you are convicted of a crime you will face serious consequence that may include prison, fines, restitution, an Order of Protection, and a permanent criminal record. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts, including the Integrated Domestic Violence Court, who have been accused of stalking, reckless endangerment, rape, assault, strangulation, child endangerment 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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