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New York Stalking and Order of Protection

N.Y. Pen. Law §§ 120.45, 120.50, 120.55 & 120.60

Stalking is a very serious criminal offense. It involves repeatedly and obsessively inserting yourself into someone else's life when you are not wanted there. Types of stalking include following, electronically tracking, calling, emailing, testing, and communicating with another person in other ways after that person has asked you to stop. In some cases the perpetrator shows up at the victim's place of employment or repeatedly tries to communicate with the victim at his or her place of work. While stalking does not always involve physical injury or damage to property, it can. However, even when it does not, the stalker's behavior can be quite unsettling, causing the victim to fear for his or her safety or fear for the safety of his or her family members. For this reason it is not uncommon for an Order of Protection to be issued against a person accused of stalking. Sometimes referred to as a restraining order, an Order of Protection is a court order that places limitations on someone who has committed a crime against another person or who has directed threatening behavior toward another person such as stalking. If an Order of Protection is issued against you, it may direct that you stay away from the petitioner, stay away from the petitioner's children, move out of your home, and give up any guns that you possess. In addition, the order may direct you to remain in compliance with custody orders and to pay child support. While many Orders of Protection are based on the petitioner's legitimate fears, in some cases there is in reality no legal basis to sustain the order. In these cases the person accused, known as the respondent, can fight the Order of Protection and attempt to have it dismissed. If someone has wrongly accused you of stalking and as a result has an Order of Protection against you that is not justified there are ways that you can fight it. Contact an experienced New York Stalking and Order of Protection Lawyer who will explain to you your legal rights and work closely with you to get the Order of Protection dismissed.

Stalking Offenses

There are 4 stalking offenses in the New York criminal statute. If you are charged with any of these offenses either by request of the prosecutor or by petition of the victim, there is a good chance that an Order of Protection may be issued against you.

Stalking in the Fourth Degree

You will face this charge if you intentionally engage in a course of conduct that is directed toward a specific person that:

  • Is likely to cause reasonable fear of physical harm to that person, that person's family, or to that person's property
  • Causes harm to that person's mental or emotional health, where that conduct is following, telephoning, or initiating contact with that person or an acquaintance of that person after he or she told you to stop. Following includes using GPS to track that person.
  • Is likely to cause that person to fear that his or her job, business or career is threatened where that conduct is showing up at that person's job or telephoning or in some other way communicating with that person at his or her job.

Stalking in the fourth degree is a Class B misdemeanor. N.Y. Pen. Law §§ 120.45-120.60

Stalking in the Third Degree

The offense of stalking in the third degree is the same as stalking in the fourth degree except that:

  • You stalk 3 or more different people on at least 3 separate occasions; or
  • Within the prior 10 years you were convicted of one of the following predicate crimes: sexual misconduct, rape in the third degree, rape in the second degree, criminal sexual act in the third degree, criminal sexual act in the second degree, sexual abuse in the third degree, sexual abuse in the second degree, aggravated sexual abuse in the first degree, incest in the third degree, incest in the second degree or incest in the first degree. The stalking victim and the predicate crime victim must be the same or the predicate crime victim must be a member of the stalking victim's family.
  • Intending to annoy, harass or alarm the victim, you engage in a course of conduct that is likely to cause that person to fear that you will physically harm, kidnap, commit a sex offense, or commit the crime of unlawful imprisonment against him or her or that person's immediate family.
  • Within the last 10 years you have been convicted of stalking in the fourth degree.

Stalking in the third degree is a Class A misdemeanor. N.Y. Pen. Law § 120.50

Stalking in the Second Degree

Stalking in the second degree is very similar to the stalking in the third degree that involves engaging in conduct that causes the victim to fear that you will physically harm, kidnap, commit a sex crime, or commit a sex offense, except that in the case of stalking in the second degree you also display a weapon. Or you do so after within the last 5 years being convicted of a predicate sex offense. Or you do so against at least 10 different people on 10 separate occasions. Stalking in the second degree is a Class E felony. N.Y. Pen. Law § 120.55

Stalking in the First Degree

You will face a stalking in the first degree charge if while stalking someone you also cause the person physical injury. Or while stalking someone you also commit rape in the third degree, criminal sexual act in the third degree, female genital mutilation, rape in the second degree, and criminal sexual act in the second degree. Stalking in the first degree is a Class D felony. N.Y. Pen. Law § 120.60

Types of Orders of Protection

An Order of Protection can be issued by a Family Court judge or by a Criminal Court judge.

Criminal Court Order of Protection

If you are charged with stalking, the prosecutor will request that the judge presiding over your case issue a Temporary Order of Protection. This typically happens at the very beginning of the criminal case. The judge will usually grant the prosecutor's request for an Order of Protection based on the details included in the criminal complaint against you. An Order of Protection is usually very specific about what you cannot do and what you must do. For example, an Order of Protection can forbid a person from having any contact with the victim. This means that you will not be permitted to go to the victim’s home, place of employment, or school, or contact that person via email, phone, text or any other electronic means. The Order of Protection may also order you not to assault, threaten, harass, or stalk the victim.

If you live with the victim, the order may exclusionary, requiring you to move. If you have children with the victim, you may be ordered to pay child support. If you violate an Order of Protection, you could face additional criminal charges.

Based on the outcome of the stalking charges the Temporary Order of Protection may become a Permanent Order of Protection, meaning that it may remain in place for a number of years. However, if you do not believe that an Order of Protection is warranted, then there are ways to fight such an order to get it vacated.

Family Court Order of Protection

A Family Court Order of Protection is issued in cases where there is a domestic relationship between the defendant and the victim. For example, such an order can protect you against a spouse, former spouse, other family member, someone with whom you have a child, someone with whom you have had in intimate relationship or someone with whom you share a home. To get an Order of Protection in Family Court, the person seeking protection, not a prosecutor, completes a petition form called a "Family Offense Petition." The petitioner will describe what you have done that he or she finds to be threatening or dangerous.

Consequences of Violating an Order of Protection

Regardless of whether the Order of Protection is issued by Family Court or by Criminal Court, if you violate it the consequences can be quite serious. For example, if a Criminal Court issued the Order of the Protection because you have been charged with stalking and you then violate it, you can be sure that the victim will alert the police. You will be arrested and charged with criminal contempt in the second degree or criminal contempt in the first degree. N.Y. Pen. Law §§ 215.50 and 215.51

In People v. Lawing, 975 N.Y.S.2d 778 (2013) an Order of Protection was in place prohibiting defendant Jermel Lawing from going near his former girlfriend or their child. After violating the order on 3 occasions, Lawing was charged with two counts of criminal contempt in the first degree and one count of criminal contempt in the second degree. Upon conviction, Lawing was sentenced to 1 year in prison for the second degree charge and consecutive prison terms of 1 1/3 to 4 years for the two counts of first degree criminal contempt. Similarly, in People v. Talbot, 981 N.Y.S.2d 152 (2014), the defendant was charged with a crime based on a domestic violence incident with his wife, as well other criminal offenses. An Order of Protection was issued requiring that Talbot stay away from his wife. As part of a plea agreement Talbot's sentence was to be 1 1/3-4 years in prison, as long as he did not commit any additional crimes. Talbot was arrested for violating the Order of Protection. As a result the judge threw out the plea agreement and sentenced Talbot to 2-6 years in prison.

Keep in mind that even if you are ultimately cleared of the stalking charges you could still end up in jail due because you violated the Order of Protection. As long as the Order of Protection is in effect, you must follow it. If you eventually defeat the stalking charges you can request that the Order of Protection be dismissed. As long as the judge does not find any reason to extend the Order of Protection, it will be dismissed. On the other hand, if you are found guilty of stalking, the temporary Order or Protection will likely become permanent, meaning that it will remain in effect for several years.

Vacating a Family Court Order of Protection

An Order of Protection is a legally binding order. The only way for such an order to be changed or vacated is if a court so orders. The petitioner, meaning the person who requested the order has no authority to change the order. For example, suppose your girlfriend requested and received an Order of Protection against you after an argument. However, after a few days have passed she decides that she wants to see you and invites you to her home. If you go and see your girlfriend under these circumstances, you will be in violation of the Order of Protection. You could face criminal charges. Similarly, suppose you strongly believe that you girlfriend did not tell the truth when she requested the Order of Protection. Thus, you believe that it was wrongfully obtained and should never have been issued. Because of this, you feel justified in violating it. If you do, you will have violated it. It does not matter if the petitioner changes his or her mind, or if you feel that the order was not justified, if it is in place, you must abide by it.

The proper way to fight an Order of Protection and to seek to have it vacated is to go to court. When you were originally served with the Order of Protection, you would have also received a Summons to Appear. The Summons will let you know when you must appear in Family Court to respond to the allegations in the order. This will be your first opportunity to fight an Order of Protection. The key to successfully fighting an Order of Protection is to be prepared. You must demonstrate that the petitioner is not actually in need of protection from you. To show this you will need to refute the allegations that the petitioner made. Be prepared with evidence. Evidence may include eyewitnesses, police reports, and medical reports. Other factors that may support your case is evidence of steady employment, education, lack of criminal history, and positive contributions to the community. The Family Court judge will schedule a fact-finding hearing to determine if the petitioner's allegations are true. If the judge determines that the allegations are not true, then the case will be dismissed. N.Y. FCT. Law § 841. On the other hand, if the judge finds that the allegations are true then the judge may issue a permanent Order of Protection that can remain in effect for up to 5 years. N.Y. FCT. Law §§ 841 and 842

Being accused of stalking is serious. It is possible that you may end up having to go to prison, pay significant fines, and have a criminal record. In addition you will have to deal with having to abide by the rules of an Order of Protection. An Order of Protection is not only an inconvenience it can also have serious, negative effects on important aspects of your life. If you have been charged with stalking and based on that charge you have been served with an Order of Protection, contact the experienced staff of Stephen Bilkis & Associates, PLLC to discuss the details of your case. We have years of experience representing clients who have Orders of Protection filed against them, as well as clients who have been charged with domestic violence, stalking, assault, strangulation, sexual abuse, aggravated harassment and child endangerment. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your case. We serve those accused of stalking in the following locations:

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