Criminal Procedure

Published on: April 10, 2012

Court Considers Revocation of Gun License in Domestic Violence Case

by Stephen Bilkis

On June 29, 2006, a man was involved in a domestic dispute with his wife. His wife told the New York Police Officers that during this dispute, her husband punched and kicked her and that she punched and kicked him. Pursuant to New York Law, the officers discovered that the husband had a residence permit for a target pistol. When they collected the firearms in the home, they discovered that the husband was also in possession of two long guns, rifles, for which he did not have a permit. The husband’s pistol license was suspended pending an investigation into the matter.

A New York Criminal Lawyer said that in June 30, 2006, a Temporary Order of Protection was issued in Kings county New York for the wife against the husband and for the husband against the wife. These protection orders were issued following several additional domestic disputes involving this couple. On September 19, 2006, after a heated verbal dispute with his wife in a public restaurant, the husband was arrested. The arrest was eventually voided. However the fact that he had a history of domestic violence and had been in possession of two long guns illegally in his home, his license to have any guns was revoked.

On December 30, 2006, the man requested an administrative hearing in order to repeal the revocation of his gun permit. His argument stemmed from his assertion that his wife had caused the domestic violence incidents and that he had never been notified of a renewal date for his long guns. The husband stated that he had not been aware that he was supposed to notify the police department of any arrests or orders of protection as they related to his possession of guns.

Published on: April 10, 2012

Court Decides Jurisdiction Issue Where Domestic Violence Incident Occured Out of State

by Stephen Bilkis

Often, questions of law arise in family violence situations that are unique because they are involving a domestic situation that is volatile and fluid in nature. Families are rarely stationary. The question of jurisdiction and venue become relevant when a family primarily resides in one state, but encounters a violent episode while out of state visiting relatives or on vacation. The law is expected to draw a line that determines who is responsible for protecting the victim or victims as the case may be. The law in New York has a long history of struggling with this concept.

In 1962, New York had a family court law that stated that the victim of domestic violence would have to have their case heard in the family court. This decision was designed to decriminalize family violence. However, the effect that it had was far from the one intended. Rather than providing additional options for handling abuse and domestic violence, it created a situation where criminals could elude criminal prosecution. In 1977, the state revised this law. This revision stated that the Family Court and the criminal court would have concurrent jurisdiction. In 1978, the law was revised further to include the three day rule. It stated that the victim had three days following an incident to decide if they wanted to pursue the case in either criminal court or family court. A New York Criminal Lawyer said the complainant’s choice of either criminal or family court became final after the three days. These amendments were an attempt to provide more effective relief to victims of domestic violence. The idea was that they would provide more remedies to the victims of domestic assaults. In 1994, the state legislature created the 1994 Act. It eliminated the three-day choice of venue. The 1994 Act allowed true concurrent jurisdiction to exist. There was no longer the chance that an offender could escape criminal punishment if the victim chose to have the case handled by family court. Since it is a true concurrent jurisdictional provision, a victim can proceed in both criminal and civil court at the same time.

In 1999, amended the Family Court Act 812 and the Criminal Procedure Law § 530.11 to enable a complainant to proceed in family court and have the criminal court continue to hear the criminal offense that was involved. This legal amendment was created to clarify the intent of the 1994 Act. It is generally assumed that the legislative history of domestic violence laws in New York demonstrate a desire to expand the jurisdiction of Family Court and strengthen the remedies available to the victims.

Published on: April 9, 2012

Defendant Tries to Manipulate Court System to Intimidate Wife

by Stephen Bilkis

Domestic violence issues are complicated. For many years, it was easier for the American judicial system to simply not deal with it. The political climate has changed and with it, the domestic violence laws have changed. We now understand that domestic violence is about control. Sometimes, an abuser cannot accept that the control over the other person has been removed by the state. In some cases, the aggressor attempts to control the court by manipulating the legal system. This type of behavior offensive to the judges and will turn the judges favor away from that person.

In one case like this, which was heard in the Civil Court of the City of New York, Bronx County on October 1, 2010, the situation began on May 5, 2010. A man filed a petition to the court on June 30, 2010 claiming that his wife had illegally locked him out of their apartment located at 1880 Valentine Avenue in the Bronx. However, neither party appeared in court and the petition was dismissed. On July 12, 2010, the man filed a second petition alleging that his wife had illegally locked him out of the apartment. This time he claimed that the lock out had happened in February of 2010. This time, the wife appeared in court, but the husband did not. The court dismissed the man’s petition again.

A New York Criminal Lawyer said the man filed a third petition to the court. This time he claimed that his wife had illegally locked him out of the apartment on July 16, 2010. In this petition, he stated that he had called the police. When the police arrived, they ordered him to leave. Both parties appeared in court on July 23, 2010 in reference to this petition. At that time, the court was notified that on July 16, 2010, Bronx County Family Court had issued each party a Temporary Order of Protection against the other. The wife’s Protection Order directed the husband to stay away from the wife and the three minor children who live with her at 1880 Valentine Avenue. These orders expressly stated that the husband was excluded from that residence. He was also ordered to stay away from the wife’s place of work and not to have any communication with any of the people who lived in the apartment. This is most certainly why the police ordered the husband to leave when they were called to the apartment. Family Court did order that the father could have visitation with his infant child at a location away from the apartment. At that time, the court order for visitation listed the husband’s address as 1160 Wheeler Avenue in the Bronx. The court determined that Family Court was the best resolution to the dispute and dismissed the petition that the husband had filed.

Published on: April 9, 2012

Court Decides Jurisdiction in Domestic Violence Case

by Stephen Bilkis

The discretion of Family Court in New York to handle incidents that have occurred in other states or even other countries has led to many courtroom discussions. The Family Court laws in New York are clear in that they do not limit jurisdiction to events that simply occur in New York. In these laws, New York Criminal Court has concurrent jurisdiction with New York Family Court. A New York Criminal Lawyer said the deciding factor becomes whether or not the family resides in New York. In a case where the entire family no longer resides in New York, the person who is being served with the New York Family Court Documents must be served in New York. The reason for this division is that if the offender is not in New York, there is no imminent threat of further domestic violence to the family. However, if all parties are in New York long enough for the alternate person to be served, then the threat has continued. If the threat has continued, then jurisdiction relies on New York to protect the family from violence.

On December 21, 1989, a New York family who had moved to Florida had an altercation in Florida. During the altercation, the victim claims that the abuser, her husband, grabbed her by the hair pulling it out, slapped her and threw her onto the back patio of their house. The victim claims that also in Florida on January 16, 1990, the husband beat their six year old son, bruising his back, legs, and buttocks. The victim also claims that during the week of January 21, 1990, that her husband watched as she tried to close a window for the second time. He told her that she will never live to do it a third time.

The victim advised the court in New York that she and her family had moved to Florida in July of 1989. She stated that she had been afraid that if she did not move with him that he would take her children away. On February 1, 1990, shortly after the last incidence of violence, the victim moved back to New York with her children. She was afraid for her safety, so she moved into a shelter in Monroe County. On February 16, 1990, while she was living in the shelter, she was granted a temporary order of protection. It was later extended to April 27, 1990. A Long Island Criminal Lawyer said the husband was served in New York since he has weekly, supervised visitation with the children.

Published on: April 8, 2012

When Should the Law Intervene In Domestic Violence Cases?

by Stephen Bilkis

Few people realize that they can be charged with child abuse or child neglect if they have a fight with someone in front of the child. A New York Criminal Lawyer said that most states currently have statutes that allow parents to be charged with child abuse or neglect if they are involved in a domestic dispute in the presence of the children. This is true, even if the child is not involved in the assault. If one spouse assaults the other, and one or more of their children are in the room with them, the primary aggressor in the assault can be charged with child abuse or neglect. There does not have to be any physical contact between the parent and the child. There does not even have to be any verbal assault of the child to qualify under the law.

Because of this change in the law in recent years, many parents have been charged with child abuse or neglect. In some cases, it is just not appropriate. Every family has disputes at one time or another. The ability of law enforcement to charge a parent with abuse or neglect for arguing with their spouse in the presence of the children is inappropriate. A Brooklyn Criminal Lawyer said many psychologists suggest that allowing children to see their parents disagree and then work out the issue together is important to teach children how to handle conflict in their own relationships as they mature. The obvious issue here is that if the parents become violent with each other, they start the cycle of domestic violence that may continue with their own children.

So when is it appropriate for the state to intervene? This line is blurry. Some people believe that state intervention is important at the verbal abuse stage and others believe that there should be physical contact between the spouses before the state makes any charges. Nevertheless, most states have criminal statutes that address verbal assaults. A Staten Island Criminal Lawyer said this type of assault usually involves placing another person in fear of an imminent physical assault. That is the difference. If the spouses are merely arguing to work out a problem, they may be angry at each other; but neither party is in fear that the other will actually harm them.

Published on: April 8, 2012

Court Hears Tragic Domestic Violence Case

by Stephen Bilkis

Sometimes, the stories that create law are so horrendous that they speak directly to our hearts. It is at that time that you realize how important the law is. It is also when you realize how important another person’s job can be to the lives of others. In many cases, overworked and underpaid civil servants lose sight of how important their calling is. When that happens, they can drop the ball and cut corners. Cut corners always lead to a bad ending.

In New York, the job of the Clinton County Department of Social Services encompasses the assessment of homes to determine if children are deprived or neglected. A New York Criminal Lawyer said the primary goal of the social worker is to work with the parents to keep the child in their natural born home, if at all possible. Sometimes, it is not possible. Sometimes, the social worker does not keep the paperwork as meticulously as it should be kept. Sometimes, it is not possible for the social worker to predict that the parents who are not beating their children or leaving them without food might be the biggest risk to the children in their care.

On March 31, 2010, a set of twins was born to a young couple in Clinton County, New York. One was a boy named Zachary and the other, his twin sister, Zoe. On July 26, 2010, the New York State Central Registry received a complaint that the twins were being abused or mistreated. The department sent a social worker to the home and discovered that the couple engaged in domestic violence in the direct presence of the twins. There was no information recorded about how this information was received, and no documentation of any steps taken to council the parents. The documentation states that the caseworker recommended that the couple engage in mental health counseling and substance abuse treatment. However, there is no documentation about why these steps were recommended. There is no documentation of any mental health problems or substance abuse associated with the report.

Published on: April 7, 2012

Court Rules on Domestic Violence and Child Neglect Charges

by Stephen Bilkis

In domestic violence cases, the law states that if an incident of domestic violence occurs in the presence of a child, that the involved parties are charged with the offense of cruelty to children, child neglect, or child abuse. Sometimes, the victim is inadvertently charged with child neglect.

In the heat of the moment when handling domestic violence calls, officers are called upon to make immediate judgments. Sometimes, these judgments are made mistakenly and the wrong party is charged in relationship to the incident. The statute orders officers to charge the primary aggressor of the domestic violence assault. Sometimes, it is not immediately clear which party involved in a domestic dispute is the primary aggressor. A New York Criminal Lawyer said these calls are complicated and emotionally charged. Many times, officers rely on the court system to sort through the involvements because they will see the incident after everyone has cooled off. Unfortunately, the courts are also overburdened and court officers have the same problems sorting out the issues. This was the case in an appeal that was requested on August 10, 2010.

A young mother was assaulted by her boyfriend in her home in front of her child. The altercation was volatile and police were called to the scene. The officer interviewed the child and the child stated that he was scared and nervous during the assault. Both the mother and her boyfriend were charged with child neglect. A Brooklyn Criminal Lawyer said when the case came to court, social services had already determined that the incidence of domestic violence had been isolated. The boyfriend was determined to be the primary aggressor. The mother had broken her relationship with the boyfriend and the incident was established to have been an isolated encounter.

Published on: April 7, 2012

Domestic Violence Escalates into Murder Charges

by Stephen Bilkis

Domestic violence is a popular topic these days. Better and stronger domestic violence laws have gone in to effect. The truth about domestic violence is that it is cyclical. It follows a regular cycle that begins with a honeymoon phase where everything is wonderful. The abuser is loving and attentive. Then the abuser begins to pick at the other party. They begin verbally abusing them. From there the cycle heats up until violence breaks out. After the violent episode is over, the abuser tends to go back to the honeymoon cycle again. They promise that they will never abuse their spouse again. However, they do, the cycle continues to repeat itself. Each time the cycle completes, it becomes shorter. The honeymoon phase doesn’t last as long and the abuse phase lasts longer. That is the normal progression. Experience also tells us that the most dangerous time for the victim is shortly after they decide to leave. As soon as they separate, the victim should begin to take steps to protect themselves and any minor children. Unfortunately, many victims do not know what danger they are in.

According to a New York Criminal Lawyer on early April of 1998, a wife and husband filed separation papers in Spafford, Onondaga County, New York. Apparently, the wife did not recognize the danger that she was in during this separation stage. The couple continued to reside in the same house following the signing of the separation agreement. On April 21, only a couple of weeks after they separated, they had a heated argument. It was early in the morning just before dawn when the argument became physical. The later investigation revealed that the husband beat the wife about the head with an aluminum baseball bat in front of her two small children. Evidence revealed that during the beating, the wife told her children to call the police because their father was trying to kill her.

After the wife collapsed with a visible indent in her temple, he called his parents and not an ambulance or medical help. When his parents arrived they brought the husband’s brother and a family friend who was a doctor. The police were finally notified and when they arrived, they found the wife lying on the kitchen floor writhing around in her own blood and moaning unintelligibly. The husband had some scratches and minor cuts. A Nassau County Criminal Lawyer they were taken to different hospitals for treatment.

Published on: April 6, 2012

Family Court and Criminal Court have Concurrent Jurisdiction over Domestic Violence Charges

by Stephen Bilkis

Whenever an incident of domestic violence occurs, the courts and law enforcement officers are required to file reports and take other actions without discretion. One of the prescribed actions that is required of officers is that they must make an arrest if the domestic violence occurred in the presence of a child under the age of 18. If the child is a witness to the domestic violence, the parents are charged with either child abuse or child neglect depending on the situation. While this appears to be a good idea on paper, it can lead to long-term issues that may not be appropriate in some situations.

Sometimes, isolated incidents of domestic violence occur in situations where it will never happen again. A New York Criminal Lawyer said the concept of creating a law requiring the parents be charged for an argument in the presence of a child is wrought with problems. Usually, police and prosecutors use good judgment in cases. However, sometimes it appears that only poor judgment is present. In many cases, criminal charges of child neglect are placed on parents who do not deserve to be charged. When a victim of domestic violence is charged with child neglect, it only creates a situation where that victim may not report additional incidents of domestic violence for fear of losing their child. The court tends to recognize that the intent of the law is to protect the children in homes where violence and fighting is the norm rather than the exception. Still, cases where the incident was isolated manage to get through the cracks. When that happens, it is usually family court that notices it.

Family court handles most of the domestic violence actions, but they have concurrent jurisdiction if a criminal offense occurred during the incident. In some cases, the criminal case is charged, but later dismissed because it was not supported by facts in the court. A Suffolk Criminal Lawyer said the problem is that Family Court may have another case pending that the criminal charge affects. In one case, which occurred in Suffolk County, New York on March 26, 2010, a father requested an appeal to overturn an action of family court.

Published on: April 6, 2012

Domestic Violence Cases are Difficult for Everyone Involved

by Stephen Bilkis

Domestic Violence situations are difficult for everyone who is involved in handling them. Family dynamics can be extremely volatile. When domestic violence occurs, there are many people involved. Family Violence Laws encompass past or current spouses; children or step-children, parents and children, foster parents and foster children, siblings, and anyone who has ever lived or is living in the same residence. This is a broad definition of the relationships that are included in the definition of the domestic violence statutes. Domestic violence laws are created not just to deal with crimes that have already occurred; they are expected to intervene to prevent future assaults from happening. However, whenever a law is created that is expected to prevent future offenses before they have occurred, abuses to that law often follow. Many people are arrested in domestic violence situations who did not need to be arrested. Many are arrested who do need to be arrested, but still deserve a fair hearing in a court of law.

A New York Criminal Lawyer said that often police officers are called upon to enter a home and restrain one or more of the parties involved in the altercation. When this happens, it can be a dangerous situation for the police officers. In April of 2006, a New York City police officer responded to a domestic violence call in Albany County. During the course of that call, the officer had to struggle with and restrain a male subject. The officer in question and his partner ended up against a table which collapsed under the weight of the three people. The subject had pushed one of the officers onto the table before the officer in question was able to hand cuff him. The officer sustained a debilitating injury to his right shoulder. In July of 2007, he applied to the New York State and Local Police and Fire Retirement System to obtain accidental injury retirement benefits. The Hearing officer determined that this officer was not able to obtain these benefits because the injury could not be considered an accidental injury because it occurred in the normal course of performing his ordinary employment duties.

The officer argued that the collapse of the table was not an expected ordinary course of his employment duties. The state did not agree and refused his petition. The state maintains that responding to domestic violence calls and restraining unruly participants is a normal course of a police officer’s duties. If that officer in catastrophically injured in the course of those duties, the state does not feel that they should be responsible. A Westchester County Criminal Lawyer said the Officer appealed this decision. The State Court of Appeals upheld the verdict.