The Two Most Frustrating Things about Orders of Protection in Assault Cases

The Two Most Frustrating Facts of Life about Orders of Protection in Assault in the Third Degree Cases in New York City

By Don Murray, Esq., veteran New York City Criminal Lawyer

The World of Assault and Orders of Protection

One of the more common criminal charges taken up by the New York City Criminal Courts is Assault in the Third Degree (Penal Law Section 120.00).  Although every version of assault should be considered serious, Assault in the Third Degree is the least serious of assault charges, and is an A misdemeanor in NY.  As it is the least serious, involving the least level of claimed injury, it is also the most common.

An order of protection (OOP) or temporary order of protection (TOP) is almost always a part of an assault case.  An order of protection is an order, issued by the Court, that requires one person to stay away from and have no contact with another person.  This means no direct or indirect contact, or contact through electronic means such as text messaging or social media.  Since it is an order from a Judge, if someone is found to have violated the order, that violation is considered to be "Contempt of Court" and is itself a new and separate crime, that depending on the circumstances of the violation, can even be felony.

Orders of protection were invented with a noble purpose, in that they were designed to be a defensive tool to shield good people from the evil actions of bad people.  And for this reason, orders of protection are often perceived by Judges and prosecutors as a form of "chicken soup" when defense lawyers complain about them being issued against their clients.  I have even had a Judge in Queens Criminal Court specifically say exactly that issuing an order of protection was like chicken soup, in that "it couldn't hurt."  The theory is that if my client simply stays away from the complaining witness, then "what difference does it make whether or not there is an order of protection?".

Orders of protection, however, in the hands of unscrupulous people who are willing to make up stories to exact revenge from people who have wronged them in some way, are extremely powerful affirmative weapons.  The threshold of evidence in both quality and quantity necessary to convince the police to make an arrest where a violation of an order of protection is claimed, is extremely small.  Further, since violations of orders of protection can simply be that a person walked by (within a certain distance), or made a threatening hand gesture, the possible ways to invent impossible to disprove allegations are infinite.  The bottom line is that if someone holds an order of protection against you, and that person is a dishonest person, you are subject to rearrest and prosecution at that person's whim.

And so it is in this context that we encounter the two most frustrating facts of life about orders of protection in assault cases in New York City.

Frustrating Fact of Life Number 1

There is going to be an order of protection. 

It would be nice to imagine that the request for an order of protection would be the subject of a careful hearing where witnesses might even be called or evidence presented, and that there would be considered factual and legal arguments over what is really a very important and even dangerous decision - whether to issue the order in the first place.

It is nice to imagine such a thoughtful process.  But in New York City Criminal Court, all you will ever do is imagine this process.  If your lawyer enjoys to hear himself or herself talk, you may hear some opposition to the prosecutor's inevitable request for an order of protection in an assault case, depending on the circumstances.  The words coming out of your lawyer's mouth may even make logical sense.  Listening to the argument, you might even begin to believe there is some plausible chance that the Judge, who may even appear to be listening to the argument, will decline to issue the order of protection.

But there is going to be an order of protection. 

The application by the Government for the Order of Protection will be granted.  [Okay, perhaps I exaggerate to prove a general point.  Are there circumstances where orders are denied when asked for by the Government?  Yes.  In 27 years, I have probably had a handful of cases (in the neighborhood of five or so maybe) where Judges have declined to issue orders of protection when the Government has requested them.  But the rule of thumb, or rather the rule of 9.99 fingers and thumbs, is that if the Government asks for an order of protection, the Government is going to get an order of protection.

And this is often frustrating.

It is often frustrating, for example, if you feel as if the charges are false or exaggerated such that there was no crime committed in the first place.  If the charges are false or exaggerated, then you are in a situation where someone has already demonstrated that he or she is capable of going to the lengths of lying or exaggerating to the police in order to get you arrested.  If such a person as this got you arrested once on false pretenses, giving such a person an order of protection with your name on it is giving him or her essentially license to get you arrested.  

Now the District Attorney Offices will say that instances of false allegations on orders of protection are rare.  I have heard this said.  I'm not sure where this statistic of "rareness" comes from, other than perhaps the authoritative text of "The Book of All Things We Hope are True".  Also, what level of rareness of false complaints is tolerable?  How many innocent people is it acceptable to have arrested and prosecuted falsely for violating orders of protection?  What are the acceptable losses or the acceptable collateral damages?  These uncomfortable questions do not seem to form much of the analysis or be a serious factor to consider by Judges when faced with the request for an order of protection.

An aspect of this failure of rational analysis in New York City Courts comes in the context of Desk Appearance Tickets where the top offense charged is Assault in the Third Degree.  A desk appearance ticket is something that the police will occasionally allow in misdemeanor assault cases.  If you get a desk appearance ticket, you are arrested, but you are released and given an appointment to come back to court for your first appearance (arraignment) at some future date.  Often this future date for your arraignment is 30 days or even more away.

Now realize what is going on here.  You are arrested for assault and released into the world, and your court date is, say, 30 days away.  You don't have an order of protection, because if you remember, an order of protection can only be given by a Judge.  You won't see the Judge for 30 days.  So there is no order of protection.  There is nothing to prevent you from talking to the complaining witness, visiting with him or her, or even privately working out your differences and putting the whole thing behind you.  I recently represented someone who got into a fight with his room mate, got arrested for assault, and was given a Desk Appearance Ticket.  Afterwords, my client and his room mate got together and settled their differences.  This was not a problem, because there was no order of protection.

Now it gets crazy.

When I appeared with my client on the Desk Appearance Ticket date, the Government requested an order of protection.  I pointed out to the Judge that my client has managed to exist in the world for 30 days without an order of protection, and there have been no complaints from the complaining witness.  I further indicated that my client and complaining witness had regular contact as well.  Also, it was clear that any issue of urgency by the Government was absurdly undercut by the fact that the Government allowed the DAT to happen in the first place.  Had the Government truly thought that there was some danger posed by my client to the complaining witness, they could easily have held my client in custody for first appearance within 24 hours and had the order of protection issued there and then.  But the Government chose not to do that.

How could the Government, then, come to Court now, 30 days later, without any indication from the complaining witness that there have been problems in the last 30 days and suddenly act as if it were vitally important for the safety of the complaining witness that an order of protection be issued?

The answer is?  "Because that's what is done."

The Judge issued the order of the protection.  Chicken soup strikes again.  Now mind you, chicken soup arguments (that doing something "couldn't hurt") might be great when your mother is deciding whether to feed you chicken soup when you have a common cold.  But in the realm of the law, the fact that something "couldn't hurt" is not a legitimate legal argument.  There isn't a factor in any legal analysis that says that the court should issue orders if they "couldn't hurt".  Either there is a legal reason for the Court to issue an order, or there isn't.

But that's the way of the world in New York City Criminal Court.  And people charged with assault find it endlessly frustrating, especially because the truth of the matter of course is that it absolutely CAN hurt.  An order of protection is a powerful weapon in the hands of an unscrupulous person.  And if the truth is that it was an unscrupulous person who caused you to be arrested by lying to the police about what happened in the first place, handing that person an order of protection is setting you up for a world of potential hurt.

The Second Frustrating Fact of Life about Orders of Protection in Assault Cases

You aren't getting an order of protection against the complaining witness.

Typically, when people who are arrested for assault finally wrap their minds around the notion that there is going to be an order of protection against them, their minds will naturally jump to the request for their own order of protection.  "I want one too."

That's never going to happen.  Ever.  Not only won't it happen, it can't legally happen.

Unless the complaining witness was also arrested and you are named as the complaining in that case, you are NEVER going to get an order of protection against the complaining witness.  Without a separate case where the complaining witness is accused of assaulting you, a Judge has NO POWER under the law to grant you an order of protection.  It isn't going to happen.  Ever.

And this is often highly frustrating.

This is frustrating in situations where the complaining witness is not blameless in the situation.  Often the police will arrive at a scene where people have been fighting and they will arrest the person who is the most injured.  The person who is most injured, however, is not necessarily the person who should be arrested.  Sometimes, the person who is most injured deserved to be injured because that person attacked the defendant first.  Generally, the police think of self defense as something that people claim to juries.  The police generally will not care about self defense claims.  Whoever is injured the most is the victim.  End of story, usually.

In this situation, when I tell a client that there is going to be an order of protection against him, the client is upset.  When I then tell the client that the Judge doesn't even have the power to issue an order of protection against the complaining witness, the client goes crazy.  "But he attacked me!" the client will say.

And by the way, not only will the complaining witness not be ordered to stay away from you, the complaining witness is free to contact you without penalty -- but if you respond in any way, you are guilty of violating your order.  Here is an example.  You have an order of protection ordering you to stay away from the complaining witness.  You do stay away.  Complaining witness, however, calls you every day.  You don't answer.  Complaining witness also texts you every day.  You don't answer.  Complaining witness sends you postcards every day, and you don't answer.  Complaining witness messages you on Facebook every day and you don't respond.  This keeps up for a month.  After a month, you respond to a text from complaining witness, "Stop texting me."  You have just violated the order of the protection.  You have no defense.  You will likely be arrested.  And you could be convicted of a crime (because you have no defense) and sent to jail on Rikers Island for up to one year.

This is the way of the world, as frustrating as it is.

Therefore, if you are arrested for assault in New York City, with few exceptions, two things are going to be true.  First, you will be given an order of protection demanding that you stay away from the complaining witness.  Second, the complaining witness will NOT be given an order of protection to stay away from you.


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Don Murray is one of the founding partners of Shalley and Murray, an exclusively criminal defense firm in NYC for more than 20 years.  Mr. Murray has handled countless assault and related mattes in the Criminal Courts of New York City.  If you have an assault case in New York City Criminal Court, he can help you too.  Call or text 718-268-2171 for your free consultation.