Orders of Protection

It is nearly routine in New York criminal cases for judges to issue “Orders of Protection” otherwise known as restraining orders, in any prosecution where the police allege that someone has been a victim of a crime, under Criminal Procedure Law §530.13. These are initially “temporary” for the duration of an open criminal case, and may be tailored depending on the allegations in the case and the arguments made by the prosecutors and defense attorneys. In practice and by default, temporary orders of protection require a criminal defendant, or someone otherwise served, to “full stay away” conditions. That means no direct or indirect communication of any kind, in person or otherwise. Remember that electronic means of communication almost always leave evidence behind. Violating one of these orders is a crime itself, Criminal Contempt. Sometimes a plea bargain struck with the prosecution and judge will require a final order of protection as part of the sentence, under C.P.L. §530.13(4), which can last up to three years even in misdemeanor cases. Attorneys often ask for a “limited” Order instead, which holds the threat of a Contempt charge if the defendant commits any new crime against the beneficiary, but otherwise lets people be in the same room together.

If you are the subject of an Order of Protection, it doesn’t matter who might initiate communication. You could be found to violate the Order even if the beneficiary called you on the phone. The best practice is to stop, don’t respond, and advise your attorney and the police if either party attempts this, because it may be important to document for later protection. No prosecutor wants to pursue what’s referred to as a “cross-complaint” when neither the defendant nor the complaining witness wish for any type of prosecution to happen.  Many times, domestic incidents can be resolved outside of a court room, but that is often where they end up. Following your attorney’s advice can mean the difference between a stiffer sentence, child custody issues, living arrangement issues, and any number of bad side effects of a criminal prosecution.

When co-habitating New Yorkers are arrested for an incident between them, a judge’s issuance of these Orders of Protection could mean that one of those people needs to find a couch or bed to sleep on the next night. This can happen to roommates as well as romantic partners. It could even affect your workplace. The criminal courts don’t take sides in housing disputes – despite the obvious ramifications – but they can hold “Crawford” hearings in order to decide whether a displaced criminal defendant has sufficient “property interest” in the shared apartment or house. Under a decision called Crawford v. Ally, 150 N.Y.S.3d 712 (2021), the defendant has a right to a hearing to show that a full stay away order would unfairly deny him or her from their home. Your attorney should request this hearing if you can show through bills, government documents, photos, or any other evidence that you live at the location in question.