Is An Order Of Protection Automatically Put In Place When Someone Is Arrested On Domestic Violence Charges?
It’s not automatically put in place but it’s automatically asked for by the prosecution. There are some judges who are willing to stick their necks out and see sometimes if the case is not true; if the judge has questions, if the judge really suspects or sees the history and knows that this is really not a true allegation, who is willing to turn around and say, “I am not going to issue this order of protection”. However, more than 95 percent of the time, an order of protection is issued.
In New York, there are two different types of Protection Orders; They have ‘Stay Away Orders of Protection’, and ‘Refrain From Orders of Protection’. An order of protection becomes a huge advantage to one party if they are seeking to really use it as a sword instead of a shield, and that’s a big disadvantage to the person against whom it is issued.
What Makes A Charge Under Domestic Violence Fall Under A Misdemeanor Or A Felony?
In New York, there is only one charge that is a felony that’s from domestic violence: if there is the allegation of violating an order of protection that was issued on a domestic violence case. Other than that, the penal law is the controlling statute. However, if the underlying charge is a misdemeanor, it remains a misdemeanor, it doesn’t automatically become a felony just because it’s a domestic violence charge. That’s the only good thing in this area. It’s just whatever the penal law determines the charge to be, that’s what it will be.
Does An Alleged Victim Actually Be Injured For Charges To Be Made?
No. In the penal law, there are certain charges that there is no injury necessary. There are harassment charges, there are aggravated harassment charges and there is actually an assault charge that do not require injury; it could require just physical pain, substantial pain, and that is by the testimony and by the opinion of the person who’s alleging it. It’s enough that the person goes and he says that “This individual punched me or slapped me,” Even though there is no broken nose or black eye, there may not even be a mark on the person’s face or anywhere, they come and said, “And it really, really hurt a lot.” That’s sufficient to be charged in New York for a harassment or an assault charge.
Attorney Eric Sachs answers some Common Questions Related To Domestic Violence Charges. Call the law office of Eric Sachs for a free initial consultation at (516) 679-0400 and get the information and legal answers you’re seeking.