More False Domestic Violence Charges Dismissed - Violation of Order of Protection

False Allegations of Domestic Violence Dismissed Again - Eventually.  

Within just a week of getting false kidnapping charges dismissed, we were able to get more false domestic violence charges dismissed in the context of allegations of violations of an Order of Protection.

In this case, my client had married a person who was not a citizen, and shortly after the marriage, it became apparent that my client's wife saw the marriage as more a path to citizenship than anything else.  Unknown to him, his new wife went to Family Court, made false allegations of abuse, and received an "ex parte" Order of Protection.  "Ex parte" means that the Family Court issued the Order of Protection and my client was not present and could not therefore be aware that there was an order of protection.  Therefore, it remained for my client to be served with a copy of the order of protection by the police, which he was, eventually.

Before my client was served, he was at his apartment, where he had been living with his wife, but his wife had left the apartment and he had not heard from her in days.  Eventually, he changed the locks on the apartment.  My client sent his wife text messages advising her that he was doing this. About an hour after he had the locks changed on his apartment, he was served with the order of protection.

The next day, my client's wife reappeared at the apartment and was unable to gain entry because the locks were changed.  She called the police and claimed that she was being excluded from "her apartment" by the actions of my client (changing the locks).  She also claimed that he had texted her.  Both of these things she claimed violated her order of protection.

The police agreed.  The police then sought out my client and arrested him for violating the order of protection.

Even When the Government Knows it is Wrong, the Default Position is to Resist Doing the Right Thing

Somewhere along the arrest processing, someone in the police department or the DA's Office put together that the timing of the order of protection service and my client's actions didn't fit properly in order for there to be a knowing violation.  If everything my client did that supposedly violated the order of protection occurred BEFORE he was served with the order of protection, he could not be guilty of violating the order of protection.  How could he knowingly violate an order that he didn't know about?

At my client's arraignment, therefore, the Government actually served "Brady" notice.  "Brady" notice refers to a famous United States Supreme Court case Brady v. Maryland, that for our purposes stands for the proposition that the Government has a duty to disclose exculpatory evidence to the defense.  (In other words, if the Government has evidence that the defendant is innocent, the Government can't hide this from the defense.  It seems like this is kind of an obvious thing, right, but you have no idea how the Government fights this and complains about the definition of "exculpatory".)  In any event, in this instance, the Government actually advised us at arraignment that there was an issue with the timing of the service of the order.

What I find interesting about this, is how knowledge that the service of the order was after the actions complained of by the complaining witness, DIDN'T DELAY THE ARREST OR PROSECUTION.  Once again, the Government, in the context of domestic violence type cases, takes the position that it will arrest everyone and let God sort em out.  The police and prosecutors seem not to consider the impact of arrest on a person, taking the longer view that regardless of the arrest, if the case works out in the end, what's the difference.

Another approach to handling the case could have been to investigate the timing of the service of the order and the actions of the defendant prior to arresting him in the first place.  But this isn't what was done.  Instead, my client was arrested, photographed, fingerprinted, and put through the arrest to arraignment system in New York City.

And given that the Government felt sufficiently motivated to bother to put the Brady notice on the record, someone somewhere must have had some real reservations about the case.  Therefore, you would expect that if the Government provided this Brady notice, that it would take the situation seriously and work quickly to resolve the issue of timing and bring the case to its proper conclusion of dismissal.

But that isn't what happened.  The case after arraignment dropped into the massive pool of cases and was ultimately assigned to a prosecutor who almost never picked up his phone, and almost never returned phone calls.  It was almost useless to try talk to the prosecutor on the case and even to present additional evidence supporting the fact the relatively simple proposition that my client was not served the order at the time he did the acts complained of as violations of the order.  My efforts to speak to the prosecutor and present our additional proof were like the sound of one hand clapping.

Although I felt certain that the evidence we had was sufficiently powerful that a dismissal of the matter was all but inevitable, my client was not so experienced with the criminal justice system, was far more anxious about his involvement in it, and was in fact concerned that the fact that he had a pending criminal charge would cause him some grief.  And in fact, his fears on this score came to fruition.  

Through a combination of delays caused by the prosecutor persistently looking for time "to investigate" what was clearly already obvious, the case lingered in the system for a couple of months.  During this time, my client applied for and was tentatively hired for a new job -- only to be told they changed their minds because they discovered his pending criminal charges.  This is completely unfair, and an entire different article could be written about the unfairness of holding pending criminal charges (meaning that no determination of guilt has occurred) against someone.  But the bottom line is that my client lost out on a job because the Government dragged its feet in a matter where the Government itself brought the problem up on the very first day in Court.

Once again, claims that a person is guilty of a crime result in immediate arrest almost without question, and even when the Government itself possesses information suggesting that the accused is actually innocent.  On the other hand, evidence of innocence post arrest, must be "looked into" months at a time and carefully vetted.

And if the slow, careful, investigation into exculpatory evidence took place prior to arrest and prosecution, that would at least not be so burdensome on the accused.  There was no reason, in this case, for example, why the Government could not have backed off the arrest until the timing of the service of the order of protection could be compared with the timing of the acts alleged to have violated the order of protection.

But although it was a long time coming, far too long under the circumstances, at least the Government did actually dismiss the case once their investigation of our evidence concluded.  So there is  that.


Don Murray is a founding partner and New York City Criminal Lawyer with Shalley and Murray, an exclusively criminal defense firm that has served New York City and surrounding areas for more than 27 years.  If you would like help with a criminal matter in New York City call or text 718-268-2171 for your free initial consultation.  Mr. Murray can help you too.

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