A recent NY Post article
involving a former Victoria Secret’s model (March 28, 2016, see p. 3) gives me
the chance to discuss the very broad topic of ‘domestic violence’ cases but also other issues that arise from
these types of situations. In fact, the topic of domestic violence is so broad
that the very same fact pattern from a domestic violence case can be litigated,
in NY, by those very same parties in more than 1 Court and all at the very same
time. This article focuses primarily on the NY State court system but I assure
you that other states have basically the same court system and utilize the same
principles. To try to impress anyone who reads this article and already knows
about criminal law, I am going to discuss some basics of criminal law, Family Court practice including Orders of Protection, and
how divorce cases can also provide a
litigant with a separate Order of Protection, all in this same
article.
The Post article
describes a case that took place in the Criminal Court in
downtown
Manhattan, which is officially known as ‘New York County’ in the NY State court
system. I tried to combine my discussion of the criminal charges involved in
this case with my discussion about Orders of Protection (in general) but it got
too messy, so I had to separate the 2 topics; the material on Orders of
Protection follows these next paragraphs where I discuss the criminal charges
from the NY Post article. Anyway, this former model allegedly flew into a rage
against her then-boyfriend by repeatedly hitting him in the face, throwing his
TV remote out of the window, throwing his laptop across the room, and pushing
his TV off the stand, according to the ‘criminal
complaint.’ Anytime you read about a person who is accused of having intentionally
damaged and/or destroyed property belonging to another person without that
person’s consent, it’s virtually guaranteed that the defendant will be charged
with some degree of ‘criminal mischief.’
Nowhere in the Post’s article did it say what exact degree of criminal
mischief this woman was charged with. Only at the very end of the article is it
stated that the total value of the property that was damaged was $2,951. Based
on this amount, I’m pretty sure that she was charged with criminal mischief in the 2nd degree, which is a D
felony.
This
case was definitely a ‘domestic violence’ situation and it resulted in the
filing of
criminal charges against this woman. But if her then-boyfriend did not call the
police and if the police did not find out, on their own, and arrest her, the
victim could have sought help from the Family Court, namely in the form of a
‘stay away’ Order of Protection (shortened to ‘O/P’) but that would have been
issued on the same day that the victim filed his ‘O’ Petition seeking an Order
of Protection. Also in a typical criminal case stemming from a domestic
violence situation, at the arraignment this woman’s then-boyfriend would have
been issued a Temporary Order of
Protection (‘TOP’), most likely a ‘stay away’ TOP. Many people will tell you
that Orders of Protection are not to be taken lightly, meaning that if the
alleged aggressor is accused of violating it, it will trigger a new, separate
criminal case where the charge of contempt
of Court will be made against the accused party. If an accused party was
fortunate enough to be released on her own recognizance, meaning no bail was
set, for the original criminal case, but is then charged with contempt of
Court, you can pretty much count on 2 things:
A) the accused will be forcibly arrested either at home or place of
employment; and B) some amount of bail
will be set by the Court at the arraignment.
In NY, the Family Court
and the Criminal Court are each entitled to issue an Order of Protection to a
litigant, even if it’s for the same litigant and lasting for basically the same
period of time. The standard O/P that the general public is used to is a ‘stay
away,’ meaning that the accused must stay away from the victim at all times,
the accused cannot contact the victim’ directly or through a 3rd party,
etc. In the Criminal Court, these Temporary Orders of Protection, well over 90%
of the time, command the defendant to stay away from the victim. But if the
exact same domestic violence situation is litigated in either the Family Court
or in an open divorce case, there is a realistic chance that the ‘TOP’ that the
Court issues to the victim will be a ‘refrain’
TOP which is the other type of Order of Protection that permits the parties
to be in each other’s physical presence, meaning they can live together, eat together,
complain about the economy together, etc., so long as the alleged aggressor refrains
from engaging in abusive, harassing and damaging conduct towards the victim. In
all NY Family Court cases, the party that files any type of Petition is called the
petitioner and the opposing party is called the respondent (and never the
‘defendant’). But in a divorce case, the person who files the case is called
the plaintiff and the other spouse is called the defendant.
Getting back to the
Post’s article, let’s say that besides not stating the exact degree of
the criminal mischief crime that was charged, assume that the article also did
not state the total value of the personal property that was damaged. So long as
the combined value of the items that were damaged (the TV, the remote, laptop,
and other items) was more than $250 dollars but did not exceed $1,000, this
woman would have been charged with criminal mischief in the 3rd
degree (NY Penal Law Sec. 145.05). There
are 2 prongs of the crime of criminal mischief in the 3rd degree and
since the 1st prong addresses the intentional damaging/ destruction
of a motor vehicle, I will not discuss it. Nevertheless, if you know of someone
in NY who was accused of intentionally damaging and/or destroying a motor
vehicle, 3rd degree crim. mischief is an E felony, punishable by up
to 4 years’ jail time. But what most of the general public does not know is
that when criminal charges are discussed in the media, the maximum jail
sentence that is mentioned normally is imposed only if the accused party goes
to trial and then loses. Even then, there are so many situations where the
defendant gets less than the max. jail time.
Returning to the crime
of criminal mischief in NY, the 2nd prong of criminal mischief in
the 3rd degree is very simple and states as follows: ‘[a] person is guilty of criminal mischief
in the 3rd degree when, with intent to damage property of another
person, and having no right to do so nor any reasonable ground to believe that
he or she has such right, he or she (2) damages property of another person in
an amount exceeding $250.’ Again, this is an E felony and it is an amazingly
simple crime: go and intentionally break
a person’s flat screen TV, car windshield, drone, new bike, and chances are you
have committed an E felony. Now compare criminal mischief in the 3rd
degree with the next-highest degree, that being the 2nd degree of
criminal mischief:
In NY, the only
difference between the 3rd degree and 2nd degree of
criminal mischief is the total value of the property that was damaged. The
entire definition of the 2nd degree of this crime is exactly the
same as the 3rd degree, with the only exception that instead of the
words ‘in an amount exceeding $250’ (see the previous paragraph), the words ‘in
an amount exceeding $1,500’ is how the crime of crim. mischief in the 2nd
degree is defined here in NY. Second degree criminal mischief is a D felony and
is punishable by up to 7 years in jail which, once again, is rarely ordered by
the judge. I am using the word ‘rarely’ as a term of art but in order to be
sentenced to the max of 7 years for being found guilty of this crime, you not
only have to lose the trial but the accused, in all likelihood, has to have
prior criminal convictions. It is a basic principle of criminal law, personal
injury, politics, and life in general that the closer you are to the city (Any
city in the US), the more lenient the court system will be. For this simple
reason, you’ll see that even if a car accident or other type of personal injury case takes place in the
suburbs, the plaintiff’s lawyers will always try to file the lawsuit in the
very liberal, meaning plaintiff-friendly, boroughs of the Bronx, Queens,
Brooklyn a/k/a Kings County and sometimes in Manhattan (NY County). But
somehow, Staten Is. a/k/a Richmond County does not qualify as a ‘liberal’
jurisdiction. Any place where a large number of Republicans live and work is
normally not viewed as ‘liberal’ and this is just one of the truths of living
in America.
I
know that if I were not a lawyer and had no knowledge about the legal system or
if I had a
child who was charged with a felony (such as crim. mischief in the 3rd
or 2nd degree), this would scare the daylights out of me. This type
of fear is what often causes people to take drastic measures, such as grossly overpaying
for a defense lawyer or hiring the very first lawyer that they speak to. In NY,
the crime of criminal mischief is separated into 4 separate degrees and the
differences are essentially based on the value of the damaged property. Similarly,
in NY the crime of larceny is also separated into 5 degrees (the lowest being petty larceny a/k/a shoplifting) and
like criminal mischief, the 5 degrees of larceny are based on the total value
of the property that is alleged to be stolen and/or misappropriated.
In this case involving
the former Victoria’s Secret model, thankfully nobody died or was seriously
injured. The article’s last paragraph states that, ‘[u]nder the deal, [the
defendant] agreed to pay [the ex-boyfriend] $2,951 for his ruined electronics,
and in return, if she keeps out of trouble for 6 months, her record will be
wiped clean.’ In NY, anytime you see the words ‘if he/she keeps out trouble for
6 months,’ you’ll know that the case was resolved by an ‘ACOD,’ shortened for
the term ‘adjournment in contemplation
of dismissal’ which, pursuant to the NY Crim. Procedure Law, provides that
the criminal case will be dismissed not right away but rather in 6 months’
time, so long as the accused party is not rearrested for a new, unrelated crime
either in NY or anywhere else (the term ‘ACOD’ is shortened to ‘ACD’ in the
boroughs of NY City). This type of dismissal does not require the accused party
to return to Court in 6 months’ time and does not result in a conviction going
on that person’s record. But the accused party’s FBI report will always have an
indication that a criminal case took place. The only way to erase the actual
arrest is to have the arrest voided (this is different from just having the
final disposition of the criminal case ‘sealed’) and it is extremely difficult
to have a person’s arrest voided. The
police and/or District Attorney’s office has to conclude that the arrest should
never have happened in the first place. If you notice, in our legal system in
America when a defendant wins a trial, the jury (or the judge, in a bench trial) never finds the accused to
be innocent. The best outcome that a
defendant can hope for, after a trial, is a finding of not guilty. For most people, there is a huge difference between the
term ‘not guilty’ and the term ‘innocent’ and I understand this completely.
This former model in the
Post’s article received an ACD, despite being charged with at least 1 felony
(crim. mischief in the 2nd degree, a D felony). This goes to show
you that in some situations, a person can be charged with a felony but yet
still escape with a dismissal, albeit a delayed type of dismissal. In the City
of NY, for criminal cases that are basically tantamount to nuisance crimes (loitering, urinating in public, drinking an open
container of alcohol in public, etc.), I’ve seen the ACD period shortened from
6 months to just 24 hours. But an ACD often comes with the issuance of a final
Order of Protection that, in a domestic violence situation, normally lasts for
12 months from the last day of Court, referring to the day that the defendant
is sentenced. The victim in a case like the one described in the Post article
(meaning her now ex-boyfriend) would have to vigorously push the DA’s office in
order for the Court to not issue a final Order of Protection at all or
for it to be changed to a ‘refrain’ O/P that would allow the defendant and the
victim to be in each other’s physical presence.
The
$2,951 amount that the woman in the NY Post article paid is normally
referred to as
restitution. Remember that this case
took place in the relatively liberal criminal court in New York County where a
D felony was disposed via an ACD. In the suburbs, the probability is that for
the exact same fact pattern that lead to the same crimes being charged, a
defendant who is a former model might not obtain an ACD. In order to obtain
that kind of outcome a/k/a disposition, your defense lawyer will have to
perform some magic that is too extensive for me to explain here.
Orders of Protection
The actions that the woman from the NY Post article gave rise to the filing
of criminal charges against her. But in many situations, a person’s actions do
not rise to the level of any single crime, so the Criminal Court does not get
involved at all, meaning no Temporary Order of Protection is ever issued from
that Court. Nevertheless, there are many examples of obnoxious, irritating and
even dangerous behavior, in domestic situations, that cause the supposed
‘victim’ to want to seek court intervention. In fact, it’s not uncommon for
both people in a romantic, domestic or familial relationship to want to seek
official protection from the Court, in the form of an Order of Protection.
A very common example of
a ‘non-crime’ that causes many people to seek an Order of Protection not from
the Crim. Court but rather from Family Court is excessive drinking; if the
drinking is done in the presence of the parties’ child(ren), the Court might
even commence a Neglect case against that parent. The Criminal Court will have
nothing to do with this type of fact pattern because in the US, a person can
drink excessively and so long as he/she does not a motor vehicle (as defined by
the NY Vehicle & Traffic Law) or commit any other crime, the excessive
drinking itself is definitely not a crime. But the Family Court can get
involved by issuing either a ‘refrain’ Order of Protection (ordering the respondent to not drink, either
excessively or at all, in the presence of the petitioner and the child(ren). If
the fact pattern shows that the case has extreme aspects to it, the Court might
issue a ‘stay away’ O/P.
In
NY, there is no statute stating that any litigant is entitled to possess only 1
Order of
Protection at any one given point in time. I currently have a domestic violence
situation right now wherein the wife filed an ‘O’ Petition in the Family Court.
The judge granted her a Temporary Order of Protection that was only a
‘refrain,’ thereby allowing the respondent husband to remain in the marital
residence. But then the police somehow (I am using this term somewhat
sarcastically) learned about this situation and asked whether she wanted to
file a criminal complaint against her own husband. She said yes, despite not
reading English at all, and when the police wrote out a short criminal
Affidavit and the wife signed it, her husband was arrested, booked and brought
to Criminal Court to be arraigned. But the most frustrating aspect of this
domestic violence situation is that the ‘TOP’ that the Criminal Court judge
issued at the arraignment is a full ‘stay away’ that only allows the defendant father to have parenting time
with their children pursuant to an Order from either the Family Court or the
Supreme Court (if they had already filed a divorce case, which they have not
yet).
In NY, the Supreme Court
has exclusive jurisdiction to issue
a Judgment of Divorce, meaning that
this is the only Court that can deem a married couple to be divorced (in NY,
there is no ‘common law marriage’ but if a couple is here from
another state where the institution of ‘common law’ marriage is recognized,
there is case law stating that the couple will be deemed to be a married couple
in NY). Many people do not know that the NYS Family Court has concurrent jurisdiction with our
Supreme Court, meaning that all the issues that are litigated in a typical
contested divorce case (in Supreme Court) can instead be litigated in the
Family Court. Of course, well over 95% of the general public who are
contemplating divorce, currently going through a divorce, or who are already
divorced would not have any idea of this. If you want to know why, I’ll be
happy to tell you why, just email me at HenryLungPC@gmail.com
or call the office at (516) 248-8253 or (888) 539-2015.
I
happen to practice regularly in all of these 3 areas of law that I’ve discussed
in
this article
(criminal defense law, Family Court practice, and divorce law a/k/a matrimonial
law which is a misnomer because there is nothing ‘matrimonial’ about handling a
divorce). I have seen a litigant up to 2 separate Orders of Protection at the
same time but never 3, which is nevertheless still possible. But to have 3 open
and active cases going on at the same time, at least 1 of those litigants will
be missing many days of work and/or school. In NY, if this happens to take
place, nobody from any of the Courts that issued the Orders of Protection will
check up with the other Court(s) to find out if the victim only needs 1 Order
of Protection. Unfortunately, that is not how our legal system works.
Unless
the alleged aggressor a/k/a bad person takes the proper steps to have the
TOP or
multiple TOPs rescinded, all of them will stay in place (generally speaking)
and even remain in effect after the underlying case (Family Court case,
Criminal case and/or divorce case) is over. I always say that Orders of Protection are very similar
to mechanic’s liens and Notices of Pendency a/k/a lis pendens
in this way: very easy to file and obtain from the Court
but a royal headache to get removed or rescinded.
If you have read up to
this point, I thank you for taking the time to read this material. I have
practiced law very intensely for the past 16 years and I know what I am doing.
I have to include the standard disclaimer language, as follows: the
information contained in this Article have been prepared by The Law Office of
Henry Lung, PC for general informational purposes only. None of the contents of
this Article should be considered to constitute legal advice or a legal
opinion. Therefore, The Law Office of Henry Lung, PC cannot make any representation or warranty
regarding any of the information contained in this Article. The descriptions of
the cases that I have handled in the past should not be interpreted as any form
of guarantee or promise that I can produce the same results in your case. But I guarantee you that the descriptions
of my prior cases, including the final results, are accurate and I say with
pride that these clients were very satisfied with how I handled their cases.
You should not rely or act upon any information provided
in this Article without first consulting with me or an experienced lawyer of
your choosing. It goes without saying that I must disclaim any responsibility
in connection with any actions that someone might take that are based upon what
he/she has read in this Article.
I can be reached at HenryLungPC@gmail.com
or call me at (516) 248-8253 / (888) 539-2015.
