Legal Question in Criminal Law in New York

It sounds like you have been arrested, the case is still pending but your girlfriend does not want to proceed. What many people do not realize is the victim of a crime does not "file" or "drop" the charges. The victim is simply a witness in a criminal action that is prosecuted by the people of the state of New York. The People are represented by the elected District Attorney in the particular county. It is the district attorney who decides what cases to prosecute. The district attorney does not need the victim's consent or cooperation. With all cases, including domestic violence type cases, the district attorney can proceed without the victim's cooperation if there is sufficient evidence. For example, if a witness observed the male punch the female knocking a tooth out. The district attorney could proceed to trial against the male/puncher with the witness alone. The female/victim would not be needed. If a victim truly does not want to proceed, he or she must obtain their own lawyer - not your lawyer - their own lawyer who will protect his or her rights. A person could be charged with perjury if they swore out a complaint that john doe him them and then told the district attorney that never happened.

You must abide by the letter of the law exactly. If the order of protection is a full stay away, you must stay away even if she wants to be with you. Violating an order of protection can, an often is, a much bigger problem than the underlying charges. The law does allow the court to issue a temporary order of protection in certain cases, including domestic violence type cases, at arraignment. [CPL 530.12 or 530.13].

You have a due process right to seek termination or modification of a temporary order of protection issued at arraignment. Especially where it is a full stay away keeping you from your home or loved one. A temporary order of protection issued at arraignment pursuant to CPL 530.12 or 530.13 barring a defendant from his home does �sufficiently impact liberty or property interests so as to trigger due process protection and analysis.� People v. Koertge, 182 Misc. 2d 183, 185 (N.Y. Dist. Ct. 1998). Although an evidentiary hearing is not provided for in the Criminal Procedure Law, �a defendant who is the object of a temporary order of protection may at any time request a hearing for the purpose of determining the merits of such an order.� People v. Faieta, 109 Misc. 2d 841, 848 (N.Y. Dist. Ct. 1981). The is commonly called a "Parker Hearing".

Remember, you must obey the order of protection. You must not try to influence her. She must have her own lawyer.

John Campbell, Esq

White Plains, NY

914-837-1800

www.EZLawz.com

[email protected]