Westchester County Domestic Violence Offense Sentencing

The concern about domestic violence has increased over the last few decades. And with recent high profile cases, there is even more pressure on law enforcement to arrest and convict those who are accused of crimes related to domestic disputes. Domestic violence is a term used to describe certain violent or threatening crimes that involve people who are in certain types of intimate relationships. Such relationships include people related by blood or marriage, current or former spouses, co-parents of a child, and people who are dating or at one time dated. Examples of crimes that are often related to domestic violence include disorderly conduct, harassment, various sex crimes, stalking, menacing, reckless endangerment, strangulation, and assault. While a few of these crimes are misdemeanors, the vast majority are felonies. This means that if you are convicted you will end up in prison for several years. Furthermore, you will have to deal with other consequences such as being ordered to pay stiff fines, being placed on probation, being subject to an Order of Protection, and having a permanent criminal record. Thus, if you are charged with a domestic violence offense it is critical that you contact an experienced Westchester County Domestic Violence Offense Sentencing Lawyer who will work aggressively to help ensure the best possible outcome given the circumstances of your case.

Definition of Domestic Violence

Domestic violence is not one particular crime, but is a term that used to describe certain types of criminal offenses where the defendant and the victim have a domestic relationship. Specific criminal offenses that commonly result from domestic disputes include disorderly conduct, harassment, aggravated harassment, sexual misconduct, sexual abuse, rape, assault, reckless endangerment, stalking, strangulation, and murder.

Punishment for conviction

If you are convicted of an offense related to domestic violence there is a very good chance that your sentence will include incarceration. It will also likely include a fine, fees, restitution, and possibly post-release supervision or probation.

While the sentence the judge will give you will be based on statutory sentencing guidelines, judges do have some discretion. The sentence that you will receive will also be affected by mitigating and aggravating factors. One aggravating factor is your criminal history. If you have been convicted of a felony within the last 10 years you will be considered to have a prior criminal conviction. Other aggravating factors that may cause the judge to give you a stiffer sentence include lack of remorse, use of a deadly weapon or dangerous instrument, and serious injury to the victim. Mitigating circumstances include a lack of a prior criminal conviction, remorse, and lack of physical injury to the victim.

Prison. Whether or not you are sent to prison and for how long depends largely on the classification of the crime and your prior criminal record. If you have no prior criminal history in some cases the judge will have the option of sentencing you to no prison at all. If you have been convicted of a felony within the prior 10 years, in most cases the judge will be required to sentence you to some time in prison, particularly if your prior conviction was for a violent felony.

  • Class B misdemeanor. The maximum possible sentence is 3 months days in jail. The following offenses are Class B misdemeanors: harassment in the first degree, menacing in the third degree, stalking in the fourth degree
  • Class A misdemeanor. The maximum possible sentence is 1 year in jail. The following offenses are Class A misdemeanors: menacing in the second degree, aggravated harassment in the second degree, stalking in the third degree, criminal obstruction of breathing or blood circulation, reckless endangerment in the second degree, assault in the third degree, sexual misconduct, forcible touching, sexual abuse in the second degree and sexual abuse in the third degree.
  • Class E felony. The maximum possible sentence is 4 years in prison. The following offenses are Class E felonies: menacing in the first degree, stalking in the second degree, aggravated sexual abuse in the fourth degree, and criminal sexual act in the third degree
  • Class D felony. The maximum possible sentence is 7 years in prison. The following offenses are Class D felonies: stalking in the first degree, strangulation in the second degree, reckless endangerment in the first degree, assault in the second degree, rape in the second degree, criminal sexual act in the second degree, sexual abuse in the first degree, and aggravated sexual abuse in the third degree.
  • Class C felony. The maximum possible sentence is 15 years in prison. The following offenses are Class C felonies: strangulation in the first degree and aggravated sexual abuse in the second degree.
  • Class B felony. The maximum possible sentence is 25 years in prison. The following offenses are Class B felonies: assault in the first degree, rape the first degree, criminal sexual act in the first degree, and aggravated sexual abuse in the first degree.
Probation

In addition to being sentenced to time in jail or prison or instead of being sentenced to jail or prison, your sentence may include probation. The length of your probation term depends on whether the crime was a misdemeanor or a felony. If the crime was a sex offense, then the probation term will be twice as long as it otherwise would be.

  • Class B Misdemeanor: 1 year
  • Class A Misdemeanor: 3 years
  • Felony: 5 years
  • Misdemeanor sex offense: 6 years
  • Felony sex offense: 10 years

If you are placed on probation, there will be many rules that you will be required to follow or risk being sent to prison. The rules are that you must:

  • Avoid injurious or vicious habits
  • Refrain from frequenting unlawful or disreputable places
  • Refrain from consorting with disreputable persons
  • Have a job or be enrolled in school
  • Undergoing available medical or psychiatric treatment and remaining in a specified institution, when required for that purpose
  • Complete an alcohol or substance abuse program, if ordered by the court
  • Support your family
  • Pay restitution
  • Perform community service
  • Post bond or other security for the performance of any or all conditions imposed;
  • Install an ignition interlock device on any vehicle that you use
  • Refrain from consuming alcohol
  • Regularly report to your Probation Officer
  • Obtain permission before traveling or moving outside of New York
  • Notify your Probation Officer if you move or change employment
  • Submit to electronic monitoring

N.Y. Pen. Law § 65.10

If your probation officer suspects that you have violated the terms of your probation, you will be summoned to court. The judge will determine whether to revoke your probation, continue it, or modify the terms of your probation. N.Y. CPL. Law § 410.70

Post-release supervision

If convicted of a violent felony assault part of your sentence will include a term of post-release supervision of up to 5 years. Like probation, while you serve your term of post-release supervision there will be several rules that you must follow. If you violate any of the terms of your post-release supervision you will receive a revocation hearing before a judge. Based on the evidence presented, the judge may allow you to continue with the post-release supervision with the terms undisturbed, require you to go back to jail for a period and then return to post-release supervision status, or require you to return to prison to complete your original sentence plus additional time for violating your post-release supervision.

Fines, Fees and restitution

There are several financial consequences to committing a domestic violence related crime. The judge may order you to pay a fine of up to $500 for a Class B misdemeanor, up to $1,000 for a Class A misdemeanor conviction or up to $5,000 for a felony conviction.

You will also be required to pay certain fees including a "mandatory surcharge" of $300 for felonies and $175 for misdemeanors as well as a victim assistance fee of $25. N.Y. Pen. Law § 60.35. If you are convicted of a sex crime then there are additional fees, including a sex offender registration fee. You may also be required to pay fees related to probation and post-release supervision of $30 per month.

Another financial consequence is that you may be ordered to pay restitution to the victim. Generally, the maximum amount of restitution is $15,000 for felonies and $10,000 for misdemeanors. However, the restitution may be considerably more as medical expenses for knife wounds can be significant and the court may require you to pay those expenses.

Failure to pay a fine, fee or restitution may result in your being charged with a misdemeanor and sent to prison for up to a year, your wages being garnished or a judgment being filed against you. However, the court may lower the amount of restitution or modify payment terms if you show the court an inability to pay.

Sex offender registration

If you are convicted of a domestic violence sex offense such as rape or sexual abuse, you will be required to register as a sex offender under the New York Sex Offender Registration Act. Such registration means that you must supply certain personal information and information related to your crime to law enforcement which will be added to a sex offender database. N.Y. Cor. Law § 168. Such information includes your name, aliases, date of birth, sex, race, height, weight, eye color, home address, internet screen names and email addresses. If you are a student you will have to provide its name and address. In addition, you will have to be regularly photographed. 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.

Order of Protection

If you are convicted of a crime related to domestic violence, the court may issue a permanent Order of Protection against you placing restrictions on your interactions with the victim. An Order of Protection, commonly referred to as a restraining order, is a legally enforceable court order that is designed to protect someone against the violent or threatening acts of another person. The person whom the Order is designed to protect is referred to as the victim. If an Order of Protection is issued against you it will place limitations on your behavior. In a criminal court proceeding the prosecutor may request that the judge issue an Order of Protection.

An Order of Protection can be full, limited or combination of both. A full Order of Protection will require you to stay away from the victim. The judge will be very specific as to what you can and cannot do. For example, the Order of Protection may require that you stay away from the home, school, business or place of employment of the victims. N.Y. Crim. Proc. Law § 530.13(1)(a). A full order of Protection is also called a "stay away" Order. A limited Order of Protection requires you to stop certain types of behavior including harassing, intimidating, threatening, or otherwise interfering behavior directed toward the victim or family members of the victim. It may also direct you to refrain from injuring or killing a pet of the victim. N.Y. Crim. Proc. Law § 530.13(1)(b). This type of Order is also called a "refrain from" Order.

At the beginning of the proceeding the judge may issue a temporary Order of Protection. At the resolution of the proceeding, if you are convicted the judge may make the Order of Protection permanent. Even though such an order is called "permanent" the maximum duration of a permanent Criminal Court Order of Protection is 8 years for a felony conviction, 5 years for a Class A misdemeanor conviction or 2 years for a Class B misdemeanor conviction.

Accusations of domestic violence are complex, often involving complicated emotional and family issues. In order to resolve such cases it is necessary to understand both the fine details of criminal law as well as the sensitive issues involved in family conflicts. Depending on the facts of your case there may be a number of ways to reach a favorable resolution. The staff at Stephen Bilkis & Associates, PLLC has years of experience successfully defending clients in New York criminal courts who have been charged with crimes related to domestic violence such as stalking, reckless endangerment, rape, assault, sexual 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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