This Article is the second in a series explaining how Westchester County, New York criminal defense attorneys defend individuals charged with Assault in the Westchester County Domestic Violence Part. In Part I of the Article, I provided an overview of the criminal charge of Assault in the Westchester County, New York Domestic Violence Court. This section of the Article will focus on the elements of misdemeanor assault.
Under New York State Penal Law Section 120.00, a person is guilty of Assault in the 3rd degree when:
1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.
Assault in the 3rd degree is a Class A misdemeanor.
Accordingly, in New York, intent to cause physical injury is not the only means by which a person may be convicted of Assault. Actions that are deemed reckless or criminally negligent are all subject to an Assault charge.
There are, of course, defenses to an Assault charge. The most common defense utilized is "justification". There are several examples of "justifiable force". For example, under Penal Law Section 35.05, physical force is justifiable under several scenarios including emergency situations to avoid an imminent public or private injury which is about to occur and in which the person using the physical force is not at fault for the situation having arisen. Penal Law Section 35.10 authorizes the use of physical force in several situations including self defense, defense of a third person, in defense of premises, to prevent a larceny or criminal mischief, or to effect an arrest or prevent the escape from custody.
As in most New York criminal defense cases, the series of events, the actions of the actors, and the exact circumstances giving rise to the incident are unique and must be thoroughly investigated and evaluated to determine if a defense exists, or indeed, if a crime was properly charged.
Tuesday, September 22, 2009
Thursday, September 3, 2009
Assault and Westchester Domestic Violence Court - Part 1: Overview
This article is the first in a series explaining the process by which Westchester County criminal lawyers defend matters in the Westchester County Domestic Violence Part. The article will focus on misdemeanor and felony assault charges, one of the most common criminal charges that are defended in the Westchester County Domestic Violence ("DV") Court.
Overview:
The Westchester County Domestic Violence Part hears criminal cases such as assault, menacing and harassment against a spouse, family member or significant other. These matters originate in local courts such as New Rochelle City Court or White Plains City Court. Criminal charges are filed and presented in these local courts in the same way that other misdemeanor and felony cases originate. Once charges are filed, the accused is arraigned in local court and bail, if any, is set. Criminal defense attorneys are usually advised that the case is expected to be transferred to the Domestic Violence Part. Accordingly, once the arraignment is concluded, an adjournment is sought to allow for the Transfer Order to issue. That process typically requires one to two weeks. At the next appearance, the Transfer Order is served on the accused and his/her criminal defense attorney and the matter is marked off the local court calendar. From that point, the matter will be heard in the DV Part.
Bail:
Bail is set by the local Court in misdemeanor criminal matters and some felony matters. The severity of the charges is unquestionably a factor in determining the amount of bail that will be set upon an accused. Accordingly, in an assault case, the severity of the alleged victim's injuries will commonly play a major role in determining bail. For a more thorough explanation of bail, please refer to the Just Arrested section of our website.
Temporary Orders of Protection:
In almost all cases, the District Attorney's Office will ask the Court to issue a Temporary Order of Protection barring the accused from having any contact with the alleged victim in the case. Such an Order is commonly referred to as a "Full Stay Away". In sum and substance, if the local Court issues the Order, the accused will be barred from having any contact with the alleged victim, whether in person, by telephone, email, text message, or otherwise. Similarly, the accused is ordered to refrain from having any third party communicate with the alleged victim on the accused's behalf.
The consequences of the issuance of a Temporary Order of Protection ("TOP") may be severe. For example, assume the accused is the spouse of the alleged victim and both parties reside in the same home. If a TOP is issued that includes a full "stay away" provision, the accused may not reside or visit the home until the TOP is lifted. This of course means that the accused will have to make arrangements to live elsewhere pending the outcome of the case.
The accused's relationship with his/her children may similarly be impacted. If the accused is charged with an assault that allegedly occurred in the presence of his children, it is common for the District Attorney's Office to request that the TOP include the children. By virtue of this type of Order, the accused will be prevented from residing with or visiting with his/her own children, subject to a modification issued by a Westchester County Family Court Judge.
The consequences of violating a Temporary Order of Protection are severe. It is important to note that the alleged victim's consent to communicating with or visiting with the accused is NOT legal cause to violate the TOP. Only a Judge can remove the stay away provision. If the accused violates the TOP, additional criminal charges (misdemeanor or felony Criminal Contempt) will issue and is overwhelmingly common for increased bail or remand status to be ordered by the Court.
Future articles will focus on the elements of assault, treatment programs often mandated by the Westchester County Domestic Violence Part, defense of the charges, and trial.
Overview:
The Westchester County Domestic Violence Part hears criminal cases such as assault, menacing and harassment against a spouse, family member or significant other. These matters originate in local courts such as New Rochelle City Court or White Plains City Court. Criminal charges are filed and presented in these local courts in the same way that other misdemeanor and felony cases originate. Once charges are filed, the accused is arraigned in local court and bail, if any, is set. Criminal defense attorneys are usually advised that the case is expected to be transferred to the Domestic Violence Part. Accordingly, once the arraignment is concluded, an adjournment is sought to allow for the Transfer Order to issue. That process typically requires one to two weeks. At the next appearance, the Transfer Order is served on the accused and his/her criminal defense attorney and the matter is marked off the local court calendar. From that point, the matter will be heard in the DV Part.
Bail:
Bail is set by the local Court in misdemeanor criminal matters and some felony matters. The severity of the charges is unquestionably a factor in determining the amount of bail that will be set upon an accused. Accordingly, in an assault case, the severity of the alleged victim's injuries will commonly play a major role in determining bail. For a more thorough explanation of bail, please refer to the Just Arrested section of our website.
Temporary Orders of Protection:
In almost all cases, the District Attorney's Office will ask the Court to issue a Temporary Order of Protection barring the accused from having any contact with the alleged victim in the case. Such an Order is commonly referred to as a "Full Stay Away". In sum and substance, if the local Court issues the Order, the accused will be barred from having any contact with the alleged victim, whether in person, by telephone, email, text message, or otherwise. Similarly, the accused is ordered to refrain from having any third party communicate with the alleged victim on the accused's behalf.
The consequences of the issuance of a Temporary Order of Protection ("TOP") may be severe. For example, assume the accused is the spouse of the alleged victim and both parties reside in the same home. If a TOP is issued that includes a full "stay away" provision, the accused may not reside or visit the home until the TOP is lifted. This of course means that the accused will have to make arrangements to live elsewhere pending the outcome of the case.
The accused's relationship with his/her children may similarly be impacted. If the accused is charged with an assault that allegedly occurred in the presence of his children, it is common for the District Attorney's Office to request that the TOP include the children. By virtue of this type of Order, the accused will be prevented from residing with or visiting with his/her own children, subject to a modification issued by a Westchester County Family Court Judge.
The consequences of violating a Temporary Order of Protection are severe. It is important to note that the alleged victim's consent to communicating with or visiting with the accused is NOT legal cause to violate the TOP. Only a Judge can remove the stay away provision. If the accused violates the TOP, additional criminal charges (misdemeanor or felony Criminal Contempt) will issue and is overwhelmingly common for increased bail or remand status to be ordered by the Court.
Future articles will focus on the elements of assault, treatment programs often mandated by the Westchester County Domestic Violence Part, defense of the charges, and trial.
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