New York 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 New York Domestic Violence Lawyer who will listen to the facts of your case and vigorously defend you against the criminal charges.
- New York Criminal Lawyer
- N.Y. Penal Law and Domestic Violence
- N.Y. Penal Law and Domestic Violence against a Girlfriend
- N.Y. Penal Law and Domestic Violence against a Wife
- N.Y. Penal Law and Domestic Violence against a Child
- N.Y. Penal Law and Domestic Violence and Sexual Assault
- N.Y. Penal Law and Domestic Violence and Reckless Endangerment
- N.Y. Penal Law and Domestic Violence and Strangulation
- N.Y. Penal Law and Domestic Violence and Assault
- N.Y. Penal Law and Domestic Violence and Assault with a Knife
- N.Y. Penal Law and Domestic Violence and Assault with a Gun
- N.Y. Penal Law and Domestic Violence and Stalking
- N.Y. Penal Law and Domestic Violence and Menacing
- N.Y. Penal Law and Domestic Violence and Harassment
- N.Y. Penal Law and Order of Protection
- N.Y. Penal Law and Fight an Order of Protection
- N.Y. Penal Law and Domestic Violence Offense Sentencing
Under New York law there is no one crime that is called "domestic violence." In other words, you cannot be arrested and charged with domestic violence. Domestic violence is a broad term for violence that occurs between people who are related or who have a social relationship such as being married, living together, or dating. In order for a crime to be termed domestic violence, it does not have to involve people in a romantic relationship or who have a past romantic relationship. It also refers to violence between family members or those sharing the same household. While anyone can become a domestic violence perpetrator or victim, where a victim suffers a serious injury from domestic violence, the victim is typically male and the perpetrator male.
Domestic violence can involve a number of different crimes such as disorderly conduct, harassment, aggravated harassment; sex crimes such as sexual misconduct, sexual abuse, and rape; assault crimes such as assault, reckless endangerment, and stalking; strangulation and murder.
Disorderly conduct. Disorderly conduct is a common domestic violence charge. It involves acting violent towards another person in public. Thus, if you have an argument with your wife or girlfriend public, for example, and the argument gets loud or if physical violence ensues, then one or both you will likely face a charge of disorderly conduct. Disorderly conduct is not considered a crime, but a violation. N.Y. Pen. Law § 240.20.
Harassment and aggravated harassment. Harassment and aggravated harassment are also common charges related to domestic violence. Harassing someone involves annoying or violent behavior toward another person such as striking, shoving, kicking, engaging in other physical contact, following, or engaging in other alarming conduct. N.Y. Pen. Law § 240.25 and 240.26. Such harassment becomes aggravated harassment if it is accomplished using a 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 misconduct. Under the New York Penal Law you have committed sexual misconduct if you engage in sexual intercourse, oral sex, or anal sex with another person without that person's consent. Even if you are in a romantic relationship with the person such as marriage, cohabitating or dating, if you have sex with that person without his or her consent, then you have committed an act of domestic violence involving the crime of sexual misconduct.
The New York sex crimes statute has specific definitions for sexual intercourse, oral sex and anal sex. Sexual intercourse has its ordinary meaning-- a penis penetrating a vagina. It does not matter if the penetration was not complete. Any penetration is enough for there to be sexual intercourse for the purpose of a charge of sexual misconduct. Oral sex refers to sexual contact between the mouth of one person and penis of another person, the mouth and the anus, or the mouth and the vagina or vulva. Anal sex means contact between the penis and the anus. N.Y. Pen. Law § 130.00(1)
Sexual misconduct is a Class A misdemeanor. If you are convicted of sexual misconduct the maximum sentence that you could face is up to a year in jail. N.Y. Pen. Law § 130.20.
Sexual abuse. Sexual abuse is defined as having sexual contact with another person without that person's consent. Sexual contact is touching of the sexual or intimate parts for sexual gratification. N.Y. Pen. Law § 130.00(3). Sexual or intimate parts refer to the vagina, penis, anus, rectum, buttocks, breasts, lips and mouth. There are three degrees of sexual abuse: sexual abuse in the first degree, second degree or third degree. The charge you will face depends on the basis for the lack of consent. For example, if you used physical force or threats to have sexual contact with your wife or girlfriend, then the charge will be sexual abuse in the first degree, a Class D felony. N.Y. Pen. Law § 130.65. On the other hand, if you have sexual contact with your cousin who was 13 years old, the charge would be sexual abuse in the second degree, a Class A misdemeanor. N.Y. Pen. Law § 130.60. In both cases the acts of sexual abuse would also be classified as acts of domestic violence.
Rape. Rape involves having sexual intercourse with another person without that person's consent. Lack of consent can be based on exerting physical force against the victim, threatening the victim. Lake consent can also be based on having sex with someone who is physically helpless or mentally incapacitated. If you have sex with a minor, that is also considered rape regardless of whether or not the minor appeared to have agreed to have sexual intercourse with you.
There are 3 degrees of rape: rape in the first degree, second degree and third degree. Rape in the first degree is the most serious rape charge. You will face this domestic violence charge if you exert physical force on a member of your household in order to have sex with that person, if the victim was physically helpless, or if the victim was less than 13 years old. Rape in the first degree is a Class B felony. If convicted, you will face up to 25 years in prison. N.Y. Pen. Law § 130.35. Rape in the second degree and rape in the third degree also involve having sex with someone without that person's consent, however, for a second degree charge the lack of consent is based on the victim being mentally disabled, mentally incapacitated, or because the victim was less than 15. N.Y. Pen. Law § 130.30. You will have committed rape in the third degree if the victim's lack of consent was based on the victim being less than 17 years old or for any other reason. N.Y. Pen. Law § 130.25.
Assault. You have committed assault if you cause physical harm to another person. 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. If you hit your spouse, girlfriend, roommate, child, or other family member, for example, then you would have committed an act of domestic violence that included assault.
There are several different offenses related to assault. If when you assault someone you intend to cause serious harm and you in fact do cause serious harm, the charge you will face is 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. For example, in People v. Thurnquest, 938 N.Y.S.2d 749 (2012), defendant Chet Thurnquest was arrested on a charge of assault in the second degree as well other domestic violence charges after being accused of repeated striking his wife and pushing her out of a moving vehicle, resulting in serious injuries to his wife.
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 permanent disfigure, or the assault was with depraved indifferent to human life. N.Y. Pen. Law § 120.10. In the case of People v. Thurnquest, where the defendant pushed his wife out of a moving car, the defendant was also charged with assault in the first degree. In People v. Khan, 906 N.Y.S.2d 782 (2010), a first degree assault charge was based on the defendant hitting his wife in the torso with a large cleaver causing injuries. In People v. Russell, 824 N.Y.S.2d 684 (2006), the defendant punched victim several times, causing her to lose her right eye.
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. For example, in People v. Fairman, 957 N.Y.S.2d 265 (2012), the defendant, who was the father of the victim's children, charged with strangulation in the second degree based on twisting a shirt around the victim's neck. The victim testified that she was unable to breathe and experienced blurry vision. The couple's children were witnesses to the defendant's actions.
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.
Murder. In the most severe cases of domestic violence, the victim is murdered. Murder in the second degree is the charge you will face if you cause the death of your spouse, significant other, roommate or someone else in your household while you were under the influence of extreme emotional disturbance. N.Y. Pen. Law § 125.25. Murder in the first degree involves intentionally causing the death of another person. N.Y. Pen. Law § 125.27Punishment for conviction for a domestic violence crime
If you are arrested and charged with a crime where the victim is involved in domestic relationship with you, once of the preliminary actions of the court will be to issue a order for protection. An order of protection is issued in order keep victims of violence, abuse, harassment, or threats safe from harm or further harm. To keep the victim safe the judge has the power to grant a variety of different types of protections and restrictions. For example, the order may require you to refrain from communicating with the victim via telephone, mail, or electronically, refrain from injuring your pets, pay child support, pay expenses related to your hospitalizations that were the result of his or her abuse, move out of the residence, and to surrender any guns he or she may possess. N.Y. FCT. Law § 842; N.Y. FCT. Law § 842-A.
If you are ultimately convicted of a crime based on a domestic relationship, 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 and a fine of up to $500.
- Class A misdemeanor: The maximum possible sentence is 1 year in jail and a fine of up to $1,000.
- Class E felony: The maximum possible sentence is 4 years in prison and a fine of up to $5,000.
- Class D felony: The maximum possible sentence is 7 years in prison and a fine of up to $5,000.
- Class C felony: The maximum possible sentence is 15 years in prison and a fine of up to $15,000.
- Class B felony: The maximum possible sentence is 25 years in prison and a fine of up to $30,000.
- Class A-II felony: The maximum possible sentence is life in prison and a fine of up to $50,000.
- Class A-I felony: The maximum possible sentence is life in prison and a fine of up to $100,000.
In addition to possible jail or prison term, probation and fine, if you are convicted of a domestic violence related crime, if the crime is 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. Furthermore, if you are convicted of a sex crime, you will have to register as a sex offender for a minimum of 20 years. 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: