Sunday, March 19, 2017

Ithaca DWI Lawyer: Understanding the Full Stay Away Order

It doesn't always play out this way but it can.
You know I didn't always just focus on DWI defense. Some of us that practice criminal defense have been exposed to a variety of cases. I was a public defender and handled the gamut of criminal and family matters. It helps to have a broader understanding and scope when you have more varied experiences to draw from. I love defending people period. They get into trouble, have a problem and need help, it's that simple. Although truly understanding just how everything works, when it comes to New York law and rules can prove complicated.

So what does it mean if the Judge in a New York domestic violence or fight situation issues a FULL STAY AWAY Order? In simple terms, can't I just text a message, or ask a friend or a relative to call them?

Where and When Do Order of Protections Begin?

In a typical situation it all begins when two people get into an argument. Often it is late at night or in the wee morning hours (mental function and batteries running low). Sometimes it's drug or alcohol fueled mess between lovers or friends. This fight can result in physical injuries and property damage. The police come and arrest for a variety of charges. These usually range from criminal mischief for the property damage to harassment, assault, and even obstruction of an airway or circulation (choking). Clearly, personal fights result in potential personal injuries. It is at this point a "he said, she said" or "he said, he said." It starts as a private matter between these people but because their private lives have erupted in harm and/or violence now the government (police, prosecutor, judge) must step in to protect from further and future harm.

New York State Judges Issue Two Types of Stay Aways (Orders of Protection)

There are two types of stay away or keep away orders:

The first is called a Full Stay Away Order of Protection and the second is called a Refrain From Order of Protection. 

Remember an Order of protection is issued directly by the judge. It is a contract of sorts, an agreement between two parties: You and the Judge or You and the Court. The only person that can remove or alter the Order of Protection is THE JUDGE.

The boyfriend, girlfriend, husband, wife, spouse, or the fiancé has NO power or authority to change or modify this Court Order. Only the Judge can remove or modify it. The best way to modify it is for the person who is being protected by it is to go and talk to the Judge or the District Attorney (prosecutor), and ask for it to be modified or removed entirely.

Full Stay Away Orders of Protection in New York State Mean NO Contact Whatsoever

No Direct or Indirect (by other people even) Contact through any form at all

No physical contact of any kind.
You Must Stay away from the home, school, business or place of employment of the person named in the Order.
No phone calls or texts.
No letters, emails or faxes.
No messages even through other people (indirect contact).
No presents (no gifts) because even good contact is still CONTACT.

No contacting the person in any way at all, even if you are invited to talk or meet by that person.

Remember only the judge can modify or take away a FULL STAY AWAY Order.

If you violate the Full Stay Away it is Contempt of Court. You have broke your agreement, your contract with the judge. 

The second type of Stay Away is called a Refrain from Order of Protection. Usually issued to those who are living together and married or in a long term relationship with children. 

Refrain from Orders are issued to stop harassing, intimidating, threatening or otherwise interfering with the person protected by the Judge's Order. 

Criminal Contempt (violating a Court Order) is a Separate Criminal Misdemeanor in New York State

Orders of protection are also called restraining order because they restrain your behavior. If you violate any Judge order of protection or restraining order you are in Violation of the crime of Criminal Contempt.

The New York Crime of Criminal Contempt is Easy to Prove by the Prosecutor

1. In order to violate Criminal Contempt i.e. New York Penal Law 215.50, New York Penal Law 215.51 or New York Penal Law 215.52 you first must have knowledge of the order of protection’s existence. Proven by your having been in court before the judge and having the judge explain it to you and having you in fact sign it. Check, you had knowledge of the Order of Protection.

2. They (police) must be able to prove you violated by showing contact by either direct or indirect means. Sometimes a text form your phone or a witness (the order's protector) that you talked to.

Criminal Contempt (2nd degree) is a Misdemeanor in New York State 

Criminal Contempt in the Second Degree: New York Penal Law section 215.50
Punishable by up to one year in jail.

Criminal Contempt (1st degree) is a Felony in New York State 
Punishable by up to four years in state prison.

New York Felony Criminal Contempt 215.51(b), you are guilty of First Degree Criminal Contempt if in violation of a duly served order of protection by the Judge 

YOU decide to Violate it by upping your contact to a greater degree of threat of harm:

intentionally place or attempt to place a protected party in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, dangerous instrument or some type of gun or firearm or by means of a threat or threats; or

intentionally place or attempt to place a protected party in reasonable fear of physical injury, serious physical injury or death by repeatedly following the protected party or engaging in a course of conduct or repeatedly committing acts over a period of time; or

intentionally place or attempt to place a protected party in reasonable fear of physical injury, serious physical injury or death when you communicate or causes a communication to be initiated with that person by telephone, written communication or electronic communication (such as a text, Facebook message, email, etc.); or

with the intent to harass, annoy, threaten or alarm the protected party, you repeatedly make telephone calls to that person, regardless of whether or not you have a conversation, with no purpose of legitimate conversation; or

with the intent to harass, annoy, threaten or alarm the protected party, you strike, shove, kick or subject that other persons to physical contact or merely attempt to or threaten to do the same; or

by physical menace, you intentionally place or attempt to place the protected party in reasonable fear of death, imminent serious physical injury or physical injury.

Both level of criminal contempt are merely a matter of degree. If your contact is more than just casual and is threatening, it is taken very seriously by judges in New York State Courts.

They (Orders issued for them) can Contact You BUT YOU Can Not Contact them Back

Yes, it's true that those who have orders of protection to guard them from contact by you can reach out and contact you. If they do not have an orders of protection issued to protect you (called cross or dual orders) for both parties then they can contact you unharmed. BUT you cannot and must not contact them.  

So there you have it, more information and understanding of the dangers present in violating orders of protection. Discuss with a local criminal defense attorney what your defenses and options are for your situation. Remember that not all people or problems are exactly the same.