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Criminal Defense New York Order of Protection Defense Attorney

By Spodek Law Group | July 17, 2023
(Last Updated On: October 15, 2023)

Last Updated on: 15th October 2023, 01:09 pm

Criminal Defense New York Order of Protection Defense Attorney

An order of protection is a court order issued to prevent one person from contacting, harassing, abusing, or stalking another person. In New York, orders of protection can be issued in criminal court, family court, and supreme court. As a criminal defense attorney in New York, I often help clients who are facing criminal charges related to violating an order of protection.

If you have been accused of violating an order of protection, it is critical that you speak with an experienced criminal defense attorney as soon as possible. Even if you believe you did not intentionally violate the order, merely being in the presence of the protected party can constitute a violation. I have successfully defended many clients against order of protection violation charges by arguing they did not “knowingly” violate the order.

Below I will explain the basics of orders of protection in New York, the different types of orders, how they are issued, the consequences for violating an order, and legal defenses that may apply. This guide is not formal legal advice, but hopefully provides helpful information if you or a loved one is facing criminal charges related to an order of protection violation.

What is an Order of Protection in New York?

An order of protection is a court order that helps protect someone from being harassed, threatened, abused or stalked by another person. It prohibits or limits communication and contact between the parties.

Orders of protection can be issued in criminal court, family court, and supreme court in New York. They are often issued in cases involving allegations of domestic violence, sexual abuse, stalking, and assault.

Some key things to know about orders of protection in New York:

  • They can only be issued by a judge after legal proceedings. You can request an order, but a judge ultimately decides.
  • They are civil orders, but violating one can result in criminal charges like contempt or aggravated harassment.
  • They can last up to 5 years and be extended beyond that in some cases.
  • They can order the accused person to avoid contact with the protected party’s home, work, school, or other places they frequent.
  • They can restrict communication via phone, email, social media, third parties, and more.
  • Full stay away orders prohibit any contact, while limited orders only prohibit certain conduct like harassment.

How are Orders of Protection Issued in New York?

There are a few ways orders of protection can be issued in New York:

Temporary Orders in Criminal Court

If you are arrested on charges involving violence or threats, the criminal court will likely issue a temporary order of protection at your arraignment, before you are released from jail. This prohibits contact with the victim until your case concludes.

At each subsequent court appearance, the judge can choose to renew the temporary order. If you are convicted, the judge may extend the order for up to 5 years.

Permanent Orders in Criminal Court

Even if you are acquitted at trial, the criminal court judge has discretion to issue a final permanent order of protection if they believe it is still needed to protect the victim from future harm.

Orders from Family Court

Family court can issue orders of protection in cases involving family offenses between spouses, siblings, parents and children, or members of the same household. These orders can last up to 2 years and be extended beyond that.

Orders from Supreme Court

Supreme court can issue orders of protection in divorce, separation, custody, visitation cases, and other civil matters. These orders typically last up to 5 years.

Types of Orders of Protection in New York

There are two main types of orders of protection in New York:

Full Stay Away Order

This is the most restrictive type of order. It prohibits any contact at all between the parties through any means, directly or indirectly. This includes:

  • No communication whatsoever
  • Must stay away from protected party’s home, workplace, school, or other places frequented
  • No contacting via phone, text, email, social media, letters, messages through third parties, etc.

Limited Order of Protection

This allows normal contact between the parties, but prohibits specific conduct like harassment, threats, intimidation, or violence. Violating those limitations can result in criminal charges.

Limited orders are common in family court cases where the parties have children together or see each other frequently. Full stay away orders may be excessive in those cases.

Defenses to Order of Protection Violations in New York

As an experienced criminal defense attorney, I have successfully defended many clients against charges for violating orders of protection by arguing:

  • Lack of “knowing” violation – Many charges require proving you knowingly violated the order. If contact was accidental or you misunderstood the order, this may apply.
  • Self-defense – Violating an order to protect yourself or others from harm may be justified.
  • False allegations – If the victim falsely alleges you violated the order, this can defeat the charges.
  • Improper service – If you were not properly served with the order, you may not have known it was in effect.
  • Order is unconstitutional – In rare cases, arguing the order violates your constitutional rights may apply.
  • Mental health defenses – Your mental state may have prevented you from knowingly violating the order.

The viability of these and other defenses depends on the specific circumstances of your case. An experienced attorney can advise you on the best defense strategy.

Getting an Order of Protection Lifted or Modified

If you believe an order of protection was improperly issued or is overly broad, there may be ways to get it lifted or modified. An attorney can file a motion to challenge the order and represent you at a hearing.

Possible grounds to modify or lift an order include:

  • Order is no longer needed to protect the victim
  • Changed circumstances make the order excessive
  • Order violates your constitutional rights
  • Original petition contained false allegations
  • Petitioner no longer feels order is necessary

Getting an order lifted early is difficult, but an attorney can help negotiate with the petitioner or prosecutor to modify its terms if overly restrictive.

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