Table of Contents
Crimes Against Family Members
There is no single crime called “domestic violence” in New York. Domestic violence is a category of crimes, known as “family offenses” that occur between “members of the same family or household”.
Members of the Same Family or Household
In domestic violence prosecutions, “members of the same family or household”, include:
- People related by blood.
- People related by marriage (in-laws, steps).
- People legally married to each other.
- People formerly married to each other.
- People who have a child in common, regardless whether they’ve ever been married or lived together.
- People who are, or were, in an “intimate relationship”.
A relationship doesn’t have be sexual to be an “intimate relationship”:
Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”.
Depending on circumstances, roommates who’ve never been in a sexual relationship might or might not be in an intimate relationship.
- aggravated harassment in the second degree
- assault in the third degree, assault in the second degree, and attempted assault
- coercion in the second degree as set forth in subdivisions one, two and three of section 135.60 of the penal law
- criminal mischief
- criminal obstruction of breathing or blood circulation
- disorderly conduct
- forcible touching
- grand larceny in the fourth degree and grand larceny in the third degree
- harassment in the second degree and harassment in the first degree
- identity theft in the third degree, identity theft in the second degree, and identity theft in the first degree
- menacing in the third degree and menacing in the second degree
- reckless endangerment
- sexual abuse in the third degree and sexual abuse in the second degree as set forth in subdivision one of section 130.60 of the penal law
- sexual misconduct
- stalking in the fourth degree, stalking in the third degree, stalking in the second degree, and stalking in the first degree
- strangulation in the second degree and strangulation in the first degree
Being accused of domestic violence can result in unique consequences, on top of the usual risks of arrest, conviction, and punishment that go along with being accused of any crime.
Loss of Residence
Within 24 hours of being arrested on domestic violence charges, the Criminal Court will issue a temporary order of protection (“TOP”) against you. Among other things, the TOP most likely will order you to stay away from your accuser’s home.
If you live with your accuser, this means that you can’t return home while the TOP remains in effect. You’ll have to find somewhere else to live, immediately.
If you’re legally responsible for rent or mortgage payments at your former residence, then you’ll remain legally responsible for those payments while you’re barred from living there. If your accuser can’t or won’t make those payments, then you’ll be financially responsible for two residences. If you don’t make those rent or mortgage payments, your credit rating could be damaged, and you could end up on a tenant blacklist or in foreclosure proceedings.
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No Contact with Your Children
A TOP most likely will order you to have no contact with your accuser. This means that you can’t directly communicate with your accuser in person, by phone, by text by email, or by any other means. You can’t have other people communicate with your accuser on your behalf.
If you and your accuser have children in common, you won’t be able to arrange visitation with your accuser. You’ll have to petition Family Court for a visitation order; or, if you’re married to your accuser and you want a divorce, you could also seek visitation in Supreme Court through a divorce proceeding.
If you have an existing custody or visitation order, you likely will need to get a new one, because the existing order requires things that are forbidden by the subsequently issued TOP: 1) communication with your accuser, and/or 2) pick up and/or drop off of the children at your accuser’s home.
Criminal Court and Family Court have what’s called “concurrent jurisdiction” over domestic violence cases. This means that a person accused of domestic violence can be:
- The defendant in a Criminal Court proceeding; or
- The respondent in a Family Court proceeding; or
- Both the defendant in a Criminal Court proceeding, and the respondent in a Family Court proceeding.
In Criminal Court, the District Attorney files criminal charges against the accused person (“defendant”). The Court will issue a TOP while the case is pending. The outcome could include a criminal conviction; punishment such as jail, probation, and/or fines; and a final order of protection directing the defendant to have no contact with the accuser.
In Family Court, the accuser (“petitioner”) files a family offense petition against the accused person (“respondent”). The Court might issue a temporary order of protection while the case is pending. The outcome could include a final order of protection and/or probation. Although Family Court proceedings can’t result in a criminal conviction, Family Court can make a “contempt” finding and sentence the respondent to jail if the respondent violates an order of protection.
Fingerprints Not Destroyed
Ordinarily, the fingerprints of a person convicted of the non-criminal offense of harassment in the second degree are destroyed. However, this won’t occur where the offense is “committed against a member of the same family or household”.
Loss of Federal Firearms Rights
New York must notify the FBI of certain misdemeanor family offenses in order to “assist the bureau in identifying persons prohibited from purchasing and possessing a firearm or other weapon”.
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