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Understanding Temporary Orders of Protection in New York Criminal Cases

Posted by Arthur R. Frost | Mar 07, 2018 | 0 Comments

In New York, if you are charged with certain crimes, the judge may issue a temporary order of protection under New York Criminal Procedure Law § 530.12 while the case is pending. A judge can issue an Order of Protection in almost all cases to protect alleged victims and (occasionally) witnesses. If there is a "family" type of relationship, the court can even order you out of your own home.

Relationships that Qualify for a "Family Offense" Temporary Order of Protection

Specifically, if the complaint alleges a crime that occurs between any of the following people, New York Criminal Procedure Law § 530.12 may apply with an order of protection:

  • Spouses;
  • Former spouses;
  • Parent and child;
  • Between members of the same family or household, including
    • Persons related by blood;
    • Persons related by marriage;
    • People who have a child in common;
    • People who have or have had an intimate relationship, regardless of whether or not they have lived together.

What is Covered by a Temporary Order of Protection

When the court issues a temporary order of protection, they are permitted, under the law to require the defendant comply with the following non-inclusive list of limitations:

  • Stay away from the school, business, place of employment, and home of the family or household member;
  • Refrain from criminal conduct;
  • Refrain from acts that create an unreasonable risk to safety, welfare, or health of a family or household member; and
  • Suspend a firearms license and surrender any firearms to the police. This can be especially difficult for an accused person who is a police officer, or enlisted military, or someone else required to carry a firearm for work purposes because it can lead to employment termination and the loss of the ability to support oneself and family.

Exceptions to the Temporary Order of Protection

The court may order exceptions to the temporary order of protection. For example, if there is currently a court-ordered visitation schedule in a divorce decree or separation agreement, visitation may be permitted to continue with the child in some circumstances. Additionally, courts may issue a one-time grant of permission for a designated party to enter a commonly shared residence (typically, with a police escort) to retrieve personal belongings for the subject of the temporary order.

Compliance with the Temporary Order of Protection

Orders of Protection are "one way streets," meaning if the accused contacts the protected person, the accused has violated the Order of Protection. If the protected person calls the accused, and the accused talks to the protected party, the accused (not the protected party) has violated the Order of Protection. The protected party is not ordered to do, or not do, anything. The burden of complying with the temporary order of protection is on the subject of the order. Under no circumstances should a person presume they may proceed with visitation unless that has been addressed in the temporary order of protection. Similarly, one should not presume they can send a designated party to the house at any time to retrieve personal items. The details and requirements should be spelled out in the temporary order of protection.

Persons who are subject to a temporary order of protection are held to a high standard. One should make every effort to ensure complete compliance with the court's order at all times.

Failure to Comply with the Temporary Order of Protection

Failure to comply with a temporary order of protection could result in additional criminal charges. Additionally, violations can impact conditions of release while the case is pending.

If You are Charged with a Crime Against a Family Member

If you are charged with a crime against a family member, you need an experienced lawyer on your side. These types of charges have both short- and long-term consequences. Having the right attorney advocating for you and your rights can make all the difference. Contact the law firm of Frost and Kavanaugh for a consultation in Troy, NY. We have nearly 50 years of combined trial experience. Let us put our experience to work helping you.

About the Author

Arthur R. Frost

Art graduated from Thomas More College in Merrimack, NH in 1991 with a B.A. in Philosophy, and graduated from Gonzaga University School of Law in Spokane, WA in 1995. He was admitted to practice in all New York State Courts and the United States District Court for the Northern District of New York in 1996. He w...

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