Orders of Protections
In New York State, including Westchester, Putnam, Rockland, and Orange counties there are two types of Orders of Protection issued by the criminal and/or family courts, Temporary Orders of Protection (TOP) and Final Orders of Protection (FOP). As the names suggests generally a TOP issued during the case and a FOP is issued at the conclusion of a case.
The criminal defense attorney must be aware of the different types of Orders of Protections and the complex terms within the document. The criminal defense attorney must also be aware of the requirements of service of the Orders of Protection and how an Order of Protection can be used as a basis for the crime of Criminal Contempt should one be accused of violating an Order of Protection. For questions on those exact issues contact a criminal defense attorney as the laws can be complex and are beyond the information provided in this Blog.
Criminal Contempt
When one is accused of violating an Order of Protection the charge that results is Criminal Contempt. There are various degrees of Criminal Contempt but the theory is the same, that a person was issued an Order of Protection and violated that court order in some manner. Criminal Contempt is a separate and distinct crime that can result in incarceration.
Using an Order of Protection as a Sword instead of a Shield
The purpose of an Order of Protection is to help a person in need of protection (Shield). However, some protected parties use their Order of Protection as a weapon against the accused (Sword). This is a complex area regarding the purpose of an Order of Protection. In this case, it is more important than ever to seek the advice of a criminal defense attorney to resolve this issue. There have been several examples of a protected party following an accused, baiting an accused into meeting with them or contacting them in an effort to catch the accused in a violation leading to a new arrest.
Sufficiency of the Charge (Criminal Contempt)
In People v Ferenchak, ___ AD3d ___, the Court held where a misdemenor information alleging violation of an order of protection containted no allegation that the defendant was served with the Order of Protection, was present in court when it was issued, or signed it and the supporting deposition fails to reference the order or Protection, the misdemeanor information was jurisdictionally defective for failure to assert facts that if true would establish the defendant's knowledge of the Order of Protection.
Modification of Orders of Protection
Once an Order of Protection is issued to can be modified by the same Court and sometimes other courts as well. Usually this is done by the criminal defense attorney during a regular court appearance or by filing a formal motion.
In People v Knight, ___AD 3d___, the oral modification of an order of protection issued at sentencing which prohibited the defendant from every entering the county again or traveling within 50 miles of the home of the person that the order was meant to protect had to be stricken.
Orders of Protection are complex documents and need to be carefully reviewed with an experienced criminal defense attorney. It is important to understand the order of protection so it will not be violated and an experienced criminal defense attorney can discuss the methods of how to modify the order of protection or ask for its removal.