Legal Question in Criminal Law in New York

If your court date is not for another month, I assume you were arrested and the court issued a temporary order of protection at your arraignment. Generally, someone in your situation does have a due process right to a hearing. Keeping a person from their home, and the tools for their livelihood does implicate your constitutional rights. Here is a typical case such as this:

The girlfriend calls or goes to the police and alleges physical and verbal abuse.

The boyfriend is then arrested and usually charged with Aggravated Harassment in the First Degree in violation of PL 240.25 and Harassment in the Second Degree in violation of PL 240.26(3) and perhaps Assault 3rd Degree in violation of PL 120.10.

The boyfriend is held until a judge is available.

When the judge arrives, the boyfriend is arraigned without a lawyer.

At this arraignment, without making any findings of fact to support a temporary order of protection, and without giving the boyfriend an opportunity to speak, the court issues a full stay away temporary order of protection literally throwing the boyfriend out of his home.

The court then sets the next date.

If the boyfriend is indigent, an attorney is assigned. Otherwise he retains an attorney.

If the attorney is a true criminal defense attorney who knows what they are doing, they should immediately file an Order to Show Cause challenging the temporary order of protection. The law permits this.

THE LAW

Sections 530.13 and 530.12 of the NY CPL authorize a local criminal court, as a condition of release on bail or on recognizance, to issue an order of protection directing a defendant against whom a criminal action is pending to stay away from, refrain from communicating with, or refrain from engaging in harassing conduct toward the victim of the alleged crime upon good cause shown.

Clearly Defendant may move to modify or vacate the TOP. Indeed, �to ameliorate any perceived hardships, the statute expressly provides for a motion to vacate or modify a temporary order of protection, on notice to the non-moving party.� Weiner v State of New York, 27 Misc. 3d 1203(A), 1203A (N.Y. Sup. Ct. 2010) see also CPL 530.12(15)( "Any motion to vacate or modify an order of protection or temporary order of protection shall be on notice to the non-moving party").

A defendant who seeks to modify or vacate a TOP is entitled to a hearing. The courts held, �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). This is typically called a "Parker Hearing".

The factors the court must consider in determining whether to issue a TOP that excludes Defendant from his residence include, but are not limited to, "whether the temporary order of protection is likely to achieve its purpose in the absence of such a condition, conduct subject to prior orders of protection, prior incidents of abuse, past or present injury, threats, drug or alcohol abuse, and access to weapons." CPL 530.12 (1) (a)

In your case, you have been excluded from your home and kept from your tools. You have lost your home and your livelihood. You might consider inquiring about a "Parker Hearing"

John Campbell Esq

White Plains, NY

914-837-1800

[email protected]

EZLawz.com