What Violates an Order of Protection in New York?
People charged with certain offenses must abide by a temporary order of protection while their cases are pending, and they may have to abide by a final order of protection if they are convicted.
The consequences of violating an order of protection can be serious, including jail time and additional, more serious charges, such as criminal contempt.
Most orders of protection order a defendant to not engage in certain conduct towards the person named in the order of protection. Typically, an order of protection will require a person to not do things towards the person named in the order of protection, such as:
- Go near the person
- Go to the person’s home
- Call the person
- Send the person a text message
- Contact the person through a third-party
- Contact the person on social media
- Harass or assault the person
Sometimes the court will grant certain exceptions to a standard order of protection. These exceptions can apply to either a temporary order of protection, a final order of protection, or both.
Subject to Incidental Contact
A typical order of protection can be subject to incidental contact, which means that the person against whom the order is issued can legally be near a person protected by the order in certain situations.
For instance, if you are charged with assault for getting into a fight with a neighbor who lives in your building, a court may allow you to still go inside the building where the other person lives—since you live there as well. The court will likely order you to avoid speaking with the person if you run into them inside the building, and the court will likely also order you to walk away from the person if you are near them.
The court may also limit a standard order of protection in some situations. The court could say that you may live with, or be near, the person named in the order of protection, but you are obligated to not engage in any illegal conduct towards that person, such as harassing or assaulting them. If you were to engage in the prohibited conduct, you could face more serious charges and penalties compared to if the order didn’t exist.
For instance, if you are charged with a domestic violence offense for pushing your spouse, but your spouse wants you to come home, the court may let you still live with your spouse. In that situation, the court may issue a limited order of protection, allowing you to continue to live with your spouse.
Even if the order of protection issued in a case is a full order—without any restriction—the court may give you an access order, which allows you—with a police escort—to go to the home of the party protected by the order of protection so that you can get your belongings. An access order is typically granted shortly after a person is arrested so that a person can gather his or her belongings.
A defendant must have knowledge of the order of protection to be guilty of violating the order. Although it may seem obvious that a person against whom an order of protection is ordered would know about the order, that isn’t always the case.
When an order of protection is issued when a defendant is in jail custody, sometimes he doesn’t get a copy of the order of protection after the court proceeding is over. The court officers must be sure to get a copy of the order to the defendant, and unfortunately, that doesn’t always happen. Also, judges don’t always describe the contents of the order of protection. If the judge doesn’t describe what the order of protection requires, and the defendant doesn’t have a copy to review, it can be unclear to the defendant what the rules were in the order of protection. If the prosecution can’t prove the defendant knew the exact terms of the order of protection, it may have trouble proving its case.
One of the most common issues with orders of protection is whether the defendant had the intent to violate the order of protection. To be convicted for violating an order of protection, the prosecution will have to prove that a defendant intended to violate the order.
Sometimes defendants inadvertently run into the party protected by the order, and in those situations, the defendant has a great defense because any contact with the complainant was inadvertent.
This issue typically happens when the defendant and the protected party live in the same neighborhood or street, and therefore it’s not unlikely that the parties might run into each other. Obviously, if the two parties don’t live or work near each other, then it would be very suspicious if the defendant randomly ran into the protected party.
A very common problem that defendants run into when orders of protection are issued in domestic violence cases is that their partner will often tell the defendant that they want them to come home and live with them again—despite the order of protection.
Many defendants incorrectly believe that the person who is protected by the order of protection has the power to cancel the order of protection if they want to be back with the defendant. However, that is not true. Only a judge can modify an order of protection. So, even if the person protected by an order of protection asks the defendant to come over to visit them, the defendant will still be charged with violating the order of protection.
Oftentimes when a defendant gets back together with a complainant when the complainant asks the defendant to do so—in violation of the order of protection—the defendant thinks that things will be fine between them and that it’s fine for the defendant to contact the complainant. However, if there is a subsequent fight and someone calls the police, the defendant will undoubtedly face much more serious charges. Therefore, it’s critical for defendants to always listen to what the judge orders them to do and only contact a protected party if and when the judge says it’s okay to do so.
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If you have been charged with violating an order of protection, give NYC criminal defense lawyer Cody Warner a call for a free consultation. He can assess your case to determine the best path forward. Contact us today.