Domestic Violence in New York

Domestic violence occurs when a person becomes physically or emotionally violent toward someone with whom he or she has an intimate or familial relationship. The DV rate in the US is steadily climbing and the law is responding with harsher penalties and more effective strategies for building cases against domestic violence perpetrators. 

It isn’t always cut and dry though. Domestic violence cases can get very complex. Here is an overview of DV in New York.

What happens in a domestic violence case in NY?

A domestic violence case often begins when the victim or a witness calls the police to report an altercation. Sometimes the police witness the abuse which makes their job easier. Other times, it is one person’s word against the other and this can get difficult.

Once law enforcement believes that they have enough to make an arrest, they will charge the accused with domestic violence, arrest him or her, and transport them to the local police precinct where they will be booked. Shortly after being booked, they will make an appearance in court for their arraignment where the judge will review the charges, the arrest, and the initial information and evidence involved. At that time the judge will either determine a possible bail or deny bail. That will depend upon the defendant’s criminal history, whether or not they are a “flight risk,” and other factors. Sometimes the judge will simply release the defendant on their own recognizance, which means no bail with no money being put up.

If the defendant pays their bail, then they don’t have to remain in jail while awaiting for the case to be resolved. If they don’t pay their bail or if they are denied bail, then they will have to stay in jail while the case proceeds through the courts. If a person fails to show up for their appointed court date it could have serious legal consequences for them such as jail time, fines, and other ramifications.

If the person is out on bail and ends up in another domestic violence situation, they could be taken to jail where they will remain until their court date. It could also mean additional charges for them.

If the person is found guilty of domestic violence, he or she could get jail time, fines, supervised visitation with their children or their visitation could be revoked completely. They could be ordered to participate in anger management counseling, psychiatric counseling, and drug/alcohol counseling.

What acts constitute domestic violence in New York?

Domestic violence is not easy to define because New York law does not have any crime that is specifically called domestic violence. However, certain acts are often placed under the umbrella of domestic violence due to the events and circumstances surrounding them. Those acts include:

  • Assault – kick, hit, throw things at, punch, or use a weapon against.
  • Stalking – monitor, follow, or track.
  • Harassment – do something repeatedly that causes distress, fear, or alarm and does not serve any useful purpose.
  • Aggravated Harassment – do something repeatedly that causes distress, fear, or alarm and does not serve any useful purpose and uses electronic means like a computer or phone to carry it out.
  • Menacing – threatening to harm someone without using a weapon.
  • Reckless Endangerment – putting a person in a position that is dangerous, harmful, or could cause physical injury.
  • Strangulation or Criminal Obstruction of Breathing/Circulation – choke, strangle, put one or both hands on the neck and squeeze (even slightly), block mouth or nose.
  • Disorderly Conduct – behavior that others find disturbing such as fighting, drunken rages, yelling, “making a scene.’
  • Criminal mischief – take or destroy property without the owner’s permission even if it is a property that is jointly owned by the defendant and can include keying a car or smashing a cell phone.
  • Sexual Misconduct, Sexual Abuse, Forcible Touching – any type of sexual conduct or sexual contact that is unwanted.  
  • Intimidation – words or actions that force someone to do something, stop someone from doing something, or that makes them afraid.
  • Threats – making someone afraid by using words and sometimes voice inflections.
  • Identity Theft – using a person’s credit card, bank account, or personal information without their authorization or permission.
  • Grand Larceny – taking another person’s property that is worth more than $1,000 without their authorization or permission and having no intention of returning it.
  • Coercion – attempting to prevent a person from doing something that they have a legal right to do.

Any other crime against a person listed in New York’s Penal Law can also be considered domestic violence under proper circumstances.

What is the standard of proof in domestic violence cases in New York?

Evidence is important in any court case, but in domestic violence cases, it is even more important. Evidence of DV can include victim statements, witness statements, video files, videotapes, cell phone footage, audio recordings, recordings on an open legal hotline, statements from doctors regarding the victim’s injuries, the victim’s injuries themselves, emails, phone calls, text messages, and even handwritten notes.

Timing is also important. If a victim comes forward to file a complaint about an incident that occurred months ago, it could weaken their case. This is especially true if the victim’s statement is the only evidence they have. 

What is Article 8 of the New York Family Court Act?

Article 8 of the New York Family Court Act allows a person to bring a “Family Offense’ against someone with whom they currently have a familial or intimate relationship.  A family offense involves one of these acts committed against a person who is related by marriage or blood, have a child together but are not married, were married but aren’t any longer, or who are in an intimate relationship or were at one time:

  • Disorderly conduct
  • Unlawful dissemination or publication of an intimate image 
  • Harassment
  • Aggravated harassment
  • Sexual misconduct
  • Forcible touching
  • Sexual abuse
  • Menacing
  • Reckless endangerment
  • Criminal obstruction of breathing or blood circulation
  • Strangulation
  • Assault or attempted assault
  • Stalking
  • Criminal mischief
  • Identity theft
  • Grand larceny
  • Coercion

The person who filed the family offense petition has the right to a court appearance immediately, as soon as they file. When that person appears in court, the judge will hear the case and may determine that certain orders are necessary, such as a temporary order of protection or an order of child support. Typically, only the person filing the petition is present, so the order remains valid until the scheduled court date that the judge sets for the accused (respondent) to appear. In many cases, the judge will issue a summons to notify the respondent that he or she must appear. 

However, in cases where the judge determines that the petitioner is in imminent danger, he or she may opt to issue a warrant so that the respondent will be brought into court immediately. During this hearing, the respondent will have the opportunity to answer the allegations that have been brought against him or her. If the court finds that the allegations are true, then the respondent will be required to appear again at a dispositional hearing.

If the court finds that the allegations have not been adequately proven, then the case will be dismissed.

After the dispositional hearing where the allegations were proven, a dispositional order will be issued by the judge. It may include any of these actions;

  • Suspended judgment for as many as 6 months.
  • Probation for up to 1 year with the requirement that the respondent participates in an education program for batterers such as drug treatment, alcohol treatment, and anger management at the respondent’s expense.
  • Restitution at a maximum of $10,000.
  • Issuing a final order of protection for a maximum of 2 years or, in some cases a maximum of 5 years.

What is an order of protection in the New York Family Court Act?

An order of protection is issued by the court when one person has, to another person, harmed, threatened to harm, or presented themselves in such a way that any reasonable person would feel that they were in imminent danger. It can require the respondent to:

  • Stay away from the person who submitted the petition as well as any children who are involved in the situation.
  • Pay the petitioner’s counsel fees – within a reasonable amount.
  • Participate in an education program for batterers.
  • Stay away from the petitioner (and children involved) at home, work, or school.
  • Pay medical bills for the petitioner that stem from injuries they sustained because of the abuse.
  • Refrain from committing acts or more family offenses that pose a danger or threat to the welfare of other members of the family.
  • Remove personal property from a residence that the petitioner and respondent share – by giving permission.
  • Visit with children involved in the case by permission of the court.
  • Refrain from abusing, killing, or injuring any companion animal that is owned by the petitioner or a minor child in the household.

How much time can you get for domestic violence in NY?

The type of domestic violence offense that is committed greatly determines the penalties. Some offenses are misdemeanors which can mean a few days or a few months in jail, along with fines. More severe domestic violence offenses can mean much steeper fines and long prison sentences, some as much as 25 years. If a person commits DV which is classified as a Class A felony, they could be facing life in prison. If the offense had a sexual component, it could be classified as a sex crime and the defendant could be required to sign up for the New York Sex Offender Registry.

Domestic violence cases can be very complex. Having an experienced attorney to represent you and fight for your rights is absolutely essential. The Litvak Law Firm’s talented, experienced family law team is ready to help you in your DV case. Call 718-989-2908 today to schedule your appointment and get started. The sooner you begin with an attorney to represent you, the more protected you are.