Domestic Violence Complaints In Westchester- Did I Make A Big Mistake

By Michael Joseph on October 23, 2012

Families often get into heated arguments and occasionally have to confront aggressive and violent conduct between family members. Often the first impulse is to call the police and this results in criminal charges being brought against a family member. Unfortunately, that call has unintended consequences and the charges do more harm then good. In Westchester, once a call regarding an alleged domestic incident is made, often the husband is arrested, even where no crime was actually committed. Once a husband appears in any of the Westchester criminal Courts including White Plains, Yonkers, Mt. Kisco, Scarsdale, Port Chester, Rye, Mount Vernon, Pelham, Mamaroneck, Mt Kisco, Greenburgh, Elmsford, Armonk or New Rochelle, the court will issue an Order of Protection requiring the husband to stay away from the wife and his own home. Any violation of the order of protection will cause a new charge of criminal contempt, which is often more serious than the original charge for which the person was arrested.

The expenses relating to defending the charges, the difficulties that result from the Stay Away Order of Protection that is usually issued by the criminal court and the inability of the family to get counseling while the criminal proceedings are pending can be devastating. Often the family is destroyed even if the family member is ultimately acquitted. While a case is pending, the Westchester District Attorneys often ignore the spouse’s pleas to cancel the order of protection.

Recently our White Plains Criminal Defense Lawyers were retained in just such a circumstance. Our client’s husband, after an isolated domestic violence incident, had been arrested and charged with NY Penal Law Section 120 Assault in the Third Degree. Our client never wanted her husband arrested and the Stay Away Order of Protection issued by the criminal court prevent him from coming back to the family home. The marriage had two children who were very upset that their father was not at home. Our client wanted to attend counseling with her husband and attempt to save the marriage. He had no history of violence and this was the first and only time such conduct had occurred. In this circumstance, she felt, the criminal proceedings were doing more harm than good.

Our Westchester domestic violence lawyers represented the wife and intervened in the criminal case on her behalf. Our attorneys relied upon Section 530.11 of the New York Criminal Procedure Law and Section 812 of the Family Court Act to argue that all victims of family offenses have a right to chose as between criminal charges or bringing a civil proceeding in Family Court. Our lawyer argued that every victim has to be informed that: (1) a family court proceeding is a civil proceeding and is for the purpose of attempting to stop the violence, ending the family disruption, obtaining protection and then getting counseling to attempt to save the family, (2) a proceeding in the criminal courts is for the purpose of the prosecution and conviction of the offender, and (3) that the victim has a right to make an election as to how she wishes to proceed.

Our lawyer was able to end the criminal prosecution and have the Stay Away Order of Protection vacated and replaced with a Refrain From Order of Protection. This provided protection against unlawful conduct to our client, but allowed the husband to return home. It also allowed both to attend counseling together. Our client was very happy with the result and felt the kids and the marriage would have been devastated had the Stay Away Order of Protection and criminal prosecution continued.

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