New York Criminal Lawyer Blog
In the State of New York, if you commit a crime the police can arrest you and a local District Attorney can prosecute you for your alleged illegal conduct. For example, if you ball up your fists and intentionally take a swing at another person’s face, it is likely you would find yourself in front of a judge charged with Third Degree Assault if you gave that person a “shiner.” While not available to all complainants or victims, if you were the recipient of that drubbing and you have an intimate or domestic relationship with your attacker, you may pursue another means to hold your attacker accountable while providing yourself with security and safety going forward. In lieu of or in addition to the criminal justice system, New York’s Family Court Act may be your answer and enable you to obtain an order of protection or restraining order.
As a preliminary matter, and one you should consult with your New York order of protection lawyer or Family Court attorney, you must have a domestic relationship (“member of the same family or household”) ranging from current or former boyfriend or girlfriend to sibling or spouse. Assuming the New York Family Court has jurisdiction over your matter, as a petitioner (similar to a complainant), you can file a petition for an order of protection by setting forth violations of Section 812 of the New York Family Court Act. This section sets forth the offenses, aka, crimes, your lawyer will use as the foundation of your petition. With this in mind, what are the offenses listed in Family Court Act 812 and how to they compare to their brethren offenses in the New York Penal Law?
Starting from back to front, there is no difference between a Family Court Act offense and the New York Penal Law. Both the crime and the offense have the same elements. In the domestic violence context, you violate one you violate the other. That said, not every New York Penal Law crime is a violation of Section 812 of the Family Court Act. Certainly, Aggravated Harassment and Assault qualify in both statutes, but Forgery or Money Laundering, even if from a family member, would not violate the Family Court Act.
Simply, Article 8, and more specifically Section 812 of the New York Family Court Act codifies the offenses that you must establish in your petition for a restraining order or order of protection. Not a complete list of offenses, these “crimes” (again, crimes in the New York Penal Law context, but not in a Family Court civil proceeding) include:
- Second and Third Degree Assault: New York Penal Law 120.05 and 120.00
- Second Degree Aggravated Harassment: New York Penal Law 240.30
- Second Degree Harassment: New York Penal Law 240.26
- Second and Third Degree Menacing: New York Penal Law 120.14 and 120.15
- Third and Fourth Degree Stalking: New York Penal Law 120.50 and 120.45
- Fourth Degree Grand Larceny: New York Penal Law 155.30
Not an exhaustive list, take the time to ascertain whether your set of facts and admissible evidence establishes a violation of the Family Court Act and the New York Penal Law by reviewing your potential case with your restraining order attorney. Remember, these avenues are not mutually exclusive and you can decide the best choice for yourself. While there are benefits to both, always keep in mind that while a respondent (defendant in a criminal case) does not face incarceration or a criminal record at the close of a Family Court order of protection case, should your victimizer violate an order of protection in either Family Court or Criminal Court, he or she would be subject to either misdemeanor or felony Criminal Contempt and could still find him or herself before a New York criminal court judge.
The protections are there to keep you and your family safe from domestic abusers separate from or in conjunction with a prosecution in New York State. Whether you pursue a restraining order in White Plains’ Westchester County Family Court, Carmel’s Putnam County Family Court, New City’s Rockland County Family Court, Poughkeepsie’s Dutchess County Family Court or any of New York City’s Family Courts such as those in Manhattan, Brooklyn (Kings County) and Queens, know that you have rights and a means to secure an order of protection,
To learn about New York Family Court restraining orders, New York Domestic Violence laws and crimes and how one secures an order of protection in New York, or you merely want to educate yourself on how to best protect yourself from victimization, review the links found here and the Saland Law PC website.
Saland Law PC is a New York Family Court law practice representing clients as both petitioners and respondents in restraining order proceedings. The New York criminal lawyers and former Manhattan prosecutors at Saland Law PC represent crime victims both inside the courtrooms and through other legal avenues.