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Husand Moves to Violate Order for Protection

A couple co-owned two separate apartments in one building in Manhattan. A larger apartment was their family home and the smaller apartment was the office of the wife. A New York Criminal Lawyer said the couple was having marital problems and the wife moved out of their larger apartment and she had been living in the smaller apartment.

In May 1987, the husband slammed the wife into a wall and she injured her elbow. In October 1987, the husband knocked his wife to the floor and caused her to break her ankle. He forced her to walk on her broken ankle and threw books at her. On June 24, 1988, the husband punched the wife in the mouth and knocked one of her teeth out because she locked herself in the larger apartment and would not let the husband in.

The wife finally filed a complaint for domestic violence against her husband. She also filed a complaint for assault plus harassment. During the arraignment the district attorney asked for a temporary order of protection be issued effective until July 17, 1988. No argument was heard and there were no testimonies presented by the wife or the husband. The arraigning judge issued the temporary order of protection. The husband was released on his own recognizance.

On June 26, 1988, two days after the husband was arraigned, the wife asked police assistance. She reported that her husband had called her and told her that he was coming to see her and he had his gun with him. The police sought to arrest the husband but his lawyer asked to be given the opportunity to contest his arrest and the order of protection that he had allegedly violated since this was the basis for the second arrest for criminal contempt.
The husband appeared in court on July 13, 1988 and asked that the temporary order of protection be modified to allow him to stay in one of their co-owned apartments. His application for modification of the temporary order of protection was denied. The order of protection which was set to expire on July 17, 1988 was extended to August 1, 1988.

The husband filed an action to vacate the temporary order of protection on the ground that it was issued without sufficient evidence and in violation of his right to due process. A Suffolk Criminal Lawyer said he also filed a motion for review of the temporary order of protection with the Supreme Court of New York to review the issuance of the temporary order of protection.

Before the motion was heard, the district attorney and the husband stipulated that a hearing should be held to determine whether or not the temporary order of protection should have been issued. In accordance with this stipulation, the hearing was conducted. The criminal court judge ruled that there was sufficient factual basis for the issuance of the temporary order of protection.

The review of the constitutional grounds raised by the husband was separately heard by the Supreme Court. The only questions raised were: whether the judge who arraigned the husband on the charge of assault and harassment had the power to issue a temporary restraining order even without any evidence presented as to the need for it; whether or not the arraigning judge’s ruling to issue a temporary order of protection which was not in writing violated the husband’s right to due process.

The Court ruled that the State had a significant interest in issuing temporary orders of protection because the State considers domestic violence as a societal scourge. An NYC Criminal Lawyer said the State has declared it a public policy to battle domestic violence by criminally prosecuting those who engage in domestic violence. Victims of domestic violence must be prosecuted and they must feel secure enough to testify against those who committed domestic violence against them. To allow the victim and the perpetrator of the domestic violence to continue to live under the same roof would place the victim in danger of further injury and the perpetrator would be given a further opportunity to commit similar acts of domestic violence.

Thus, in accordance with the stated policy of the state, a judge did not violate the husband’s due process rights by issuing the temporary order of protection even without presentation of evidence of the domestic violence. It is enough that criminal charges for domestic violence have been filed and the district attorney prays for its issuance. But after the issuance of a temporary order of protection, the criminal court judge who will hear and decide the criminal case must schedule an evidentiary hearing to assess whether there is sufficient ground for the furtherance of the temporary order of protection.

A New York City Domestic Violence Lawyer can help you obtain a temporary order of protection for your safety. The temporary order of protection applied for by your New York Domestic Violence attorney will prevent any further acts of violence against you as you testify against your partner or spouse. The temporary order of protection secured by your NY Domestic Violence attorney will ensure that you do not have to share the house with your spouse or partner. Call Stephen Bilkis and Associates today, speak to any of their NYC Domestic Violence attorneys. They are willing to assist you present evidence and argue your case against your partner or spouse. Stephen Bilkis and Associates have accessible offices located in the New York area.

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