Domestic violence is one of the most serious offenses. In Staten Island and anywhere else in New York, the crime is committed when there is a series of offenses known as “family offenses” perpetrated. The family court has concurrent jurisdiction over these offenses, which include assault, sexual abuse, sexual misconduct, stalking, menacing and strangulation. With any of those offenses committed against a victim, the victim can bring forth charges for domestic violence in civil or criminal court or in both. Additionally, a victim can seek an order of protection from either civil or criminal court. Frequently, such an order includes that the perpetrator not only stay away from the victim but any children involved as well.
Criminal laws in Staten Island, New York don’t differentiate between domestic violence type offenses, but there are a number of acts of violence that can occur between members of the same household or family.
Overview of New York Domestic Violence Laws
There are several statutes that apply to domestic violence that are as follows:
• New York penal law Sections 120.00 – 120.12 refer to assault offenses
• New York Penal Law Section 120.13 – 120.15 refer to menacing offenses
• New York Penal Law Section 120.45 – 120.60 refer to stalking offenses
• New York Penal Law Sections 121.11 – 121.14 refer to strangulation offenses
• Family Court Act Section 812 refers to procedures for family offense proceedings
What is the Definition of Domestic Violence?
The crime of domestic violence occurs when there is an incident between two family members or two members of the same household. In order for domestic violence to occur, there must be one of the following types of relationships present between the two parties:
• They are related by affinity or consanguinity
• They are legally married
• There were formerly married
• They share a child in common
• They have been in an intimate relationship, even if they are not living together
What are the Penalties for Domestic Violence in Staten Island, New York?
The category of family offenses is a broad one and encompasses a large variety of penalties as per New York law. For example, if a person is convicted of a violent felony offense like first-degree assault, they may receive a prison sentence ranging anywhere from five to 25 years of incarceration or a fine as great as $5,000. In the case of strangulation in the first degree, which is also a violent felony offense, the individual could see a prison sentence ranging from a minimum of 3.5 years to a maximum of 15 years or a fine of a maximum of $5,000.
When the offense is in a lesser category, such as assault in the third degree, menacing in the second degree or criminal obstruction of breathing of blood circulation, which are considered to be class A misdemeanors, the punishment is less severe. The defendant might receive a sentence of prison for one year or less or a fine of up to $1,000.
Possible Defenses for a Domestic Violence Charge
If a person is arrested and charged with domestic violence, he or she can use certain defenses in court. The criminal defense attorney can rely on the following as possible defense tactics:
• Justification in a situation where there is a charge of assault and a parent uses non-deadly force on a child younger than 21 to discipline or restrain the child
• Self-defense for an assault charge where the aggressor communicates withdrawal but the victim continues the incident with unlawful physical force or threatens imminent physical force
• Mental disease or defect
• Medical or dental purposes if strangulation and similar offenses are involved
Temporary Orders of Protection
If a defendant is charged in criminal court with committing any type of domestic violence or “family offense” against a family member, current or former spouse, child or parent, the individual who was the victim in the situation has the ability to obtain a temporary order of protection. In addition, a victim can also file a petition for an order of protection during proceedings in the family court. The victim can request an order of protection even if the individual who committed the act of domestic violence has not been arrested. The judge will review the petition for the temporary order of protection and ask the victim a series of questions. The victim’s answers will determine whether or not the order of protection is really necessary. The order can be issued ex parte, which means the offender does not have to be notified before the judge issues the order of protection.
Typically, a temporary order of protection can include the following provisions:
• Require the defendant to stay away from the home, workplace or school of the family member or any witnesses included in the order
• Set a child visitation schedule for a parent
• Prohibit the defendant from committing criminal offenses against a family member, child or household member
• Prohibit the defendant from committing any act that may create a risk to the safety, welfare or health of a child or family member or member of the household
• Prohibit the defendant from harming any pets of the victim or child who lives in the home
If you have been arrested in the Staten Island, New York area for domestic violence, you need a highly skilled domestic violence attorney on your side. Contact a lawyer at the Spodek Law Group at your earliest convenience.
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