What Happens at an Order of Protection Hearing in New York City?
If a judge issued an order of protection that orders you to stay away from your home, then you may be entitled to an order of protection hearing. At that hearing, the judge will determine whether there is a reasonable basis to issue an order of protection that prevents you from staying in your home.
At your arraignment, your lawyer can request a prompt order of protection hearing so that the judge can potentially modify your order of protection to allow you to continue to live in your home.
Orders of protection that prevent you from staying in your home are often issued in domestic violence cases because domestic violence allegations often involve spouses or significant others making accusations that the defendant harassed or injured the complainant in their home.
However, sometimes orders of protection that prevent you from living in your home can be issued in cases that don’t involve domestic violence. For instance, if you are charged with assault or harassment for getting into an altercation your roommate, you may be charged with a non-domestic violence offense that involves an order of protection that orders you to stay away from your home.
Your Due Process Right to a Hearing
An order of protection that prevents you from living in your home can be very stressful and difficult to manage. If you are arrested, arraigned in court, and the judge tells you that you can’t go home or contact the complainant, then it may be very difficult to figure out what to do.
For instance, your cell phone, work clothes, and countless other necessary things for your life may be at your home, and an order of protection can prevent you from accessing those things. Although your lawyer can request an access order at your arraignment so that you can immediately go home with a police escort to get some of your things, being kicked out of your own home is an awful situation to be in.
If you are a parent and share childcare responsibilities with the complainant, an order of protection may make it very difficult for you to care for your child and do routine things such as take your child home from school.
In short, an order of protection that orders you to stay away from home can be devastating.
Fortunately, in 2021, an appellate court in New York ruled that, for a court to order a defendant to stay away from his home and thereby deprive him of such an important and fundamental property interest, the court must conduct a hearing to ensure that there is in fact a reasonable basis to issue an order of protection. Consequently, defendants now have a due process right to an order of protection hearing if they have a property interest that is affected by the issuance of an order of protection. At the conclusion of that hearing, the court may dismiss the order of protection.
What Happens at an Order of Protection Hearing?
If a defendant informs the court at his arraignment that an order of protection that orders him to stay away from the complainant and her home would prevent him from living in his home, then the court will order a prompt order of protection hearing. Typically, such hearings will occur within a week after the arraignment.
The appellate case that declared the due process right to an order of protection hearing—Crawford v. Ally—did not specify the exact form of the order of protection hearing. Because of this, the nature of the hearing is very dependent on the specific judge. For instance, some judges require live testimony under oath in court, whereas some judges simply want an informal conversation between the parties on the record about whether the order of protection should be issued.
However, Crawford did outline the factors that the court should consider, namely factors already articulated in the order of protection statute, C.P.L. 530.12. So, regardless of the formality of the hearing, the factors that the court should consider include the following:
- Whether the defendant poses a danger of intimidation or injury to the complainant;
- Prior history of abuse;
- Past or present injury;
- Drug or alcohol abuse; and
- Access to weapons.
Types of Orders of Protection
To be clear, an order of protection issued while a case is pending is a temporary order of protection, which means the order of protection is in effect only so long as the case exists. In other words, if the case gets dismissed, then the order of protection is eliminated, and the defendant is consequently no longer ordered to stay away from the complainant. Order of protection hearings are for the purpose of assessing the need for, and conditions of, a temporary order of protection.
If a defendant is ultimately convicted, then a final order of protection may be issued, which will be in effect for an established period, and the conditions of that order will be negotiated by the parties or set by the judge.
At an order of protection hearing, the court will assess whether it should issue a temporary order of protection and what the conditions of that order should be. After a hearing, the court will typically decide whether to issue a temporary order of protection that is either full, limited or subject to incidental contact.
A full order of protection generally means that the defendant can have no contact with the complainant and must stay away from where the complainant lives. So, if the defendant lives with the complainant, then the defendant will not be able to go home and must live elsewhere while the case is pending.
A limited order of protection generally means that the defendant can be with the complainant, but he will be exposed to additional penalties if he engages in criminal conduct toward the complainant. For instance, if a limited order of protection is issued yet the defendant then commits misdemeanor assault against the complainant, he may be charged with felony contempt for violating the order of protection by assaulting the complainant.
A full order of protection subject to incidental contact means that the defendant may be allowed to go to the area where the complainant lives, but he must walk away in the event he sees the complainant. This condition is often set after the defendant gets into an altercation with a neighbor in his building and is charged with an offense like harassment. A full order of protection subject to incidental contact in the building would allow the defendant to still live in his building, but if he saw the complainant in the building, he would need to walk away and not communicate with the complainant.
Need Help? Speak to NYC Criminal Defense Attorney Cody Warner Today
If you have been charged with a crime and the judge issued an order of protection, contact Cody Warner for a free consultation. Cody can assess your case to determine the best path forward.