TOLD TO STAY AWAY? THE WHAT AND HOW OF THE INFAMOUS “ORDER OF PROTECTION”

ISSUED AN ORDER OF PROTECTION?

Dear readers, recently I have been contacted by numerous members of our community about being the subject of an Order of Protection as a result of a Criminal or Family legal proceeding. This article will serve to further clarify the use of this legal instrument.

Under New York Law, an Order of Protection, also known as a Restraining Order, may be issued by the Criminal, Family and Supreme Courts in New York State.  In most instances, an individual is arrested after threatening, harassing and/or ultimately assaulting another person. The individual may be charged with a crime and during arraignment or any of the other superseding court appearances in Criminal Court, may be issued an Order of Protection. Orders are typically issued by the Criminal Court to give protection and set limits to an individual’s behavior as a condition to an ongoing case.  This is authorized through New York Criminal Procedure Law, CPL § 530.12  and § 530.13. 

Family Court Orders are done through a confidential civil process, while Supreme Court Orders of Protection can be issued as part of an ongoing divorce case.  The type of restraints of the Order will be based on the type of relationship (i.e. parent-child, husband-wife, etc.) and nature of the alleged abuse.

DID I VIOLATE AN ORDER OF PROTECTION?

Typically, there are two different types of Orders of Protection: (1) Full and (2) Limited. 

(1) Full Orders of Protection order a defendant to have no contact whatsoever with the protected individual.  This includes staying away from the individual as well as their home, school or place of business, and requires they refrain from communicating via email, telephone, mail, texting, third-party social media platform (i.e. Facebook, Instagram, Snapchat…etc) with the subject of an Order of Protection at their request. or any other form of communication.

(2) Limited Orders of Protection require the defendant to refrain from assaulting, stalking, harassing, menacing, intimidating, recklessly endangering or committing other prohibited acts toward the protected individual.  Criminal law already offers these protections, however, the Order of Protection makes the offender subject to additional charges stemming from the order.

WHAT ARE THE PENALTIES?

There are different penalties for violating different Orders of Protection.  For example, if a defendant commits a minor violation of a Full Order of Protection, such as a prohibited phone call, this could be a charge of Criminal Contempt in the Second Degree, which is a Class A misdemeanor under New York Penal Law, PEN §  215.51, and punishable by a $1,000 fine and up to a year in jail.

Criminal Contempt in the First Degree, meanwhile, is a more serious offense: under New York Penal Law, PEN §  215.51, it is a Class E Felony and is punishable by up to four years in prison.  Criminal Contempt in the First Degree includes the contact from Second Degree, as well as intentionally putting the person who has the order in fear of injury or death by threatening them with a weapon, engaging in a course of conduct which puts them in fear of physical injury, threatening them or assaulting them.

Additionally, if a defendant has been convicted of Criminal Contempt of either degree within the previous five years and commits Criminal Contempt in the Second Degree again, it will be elevated to a Criminal Contempt in the First Degree charge automatically.  Criminal Contempt in the first degree is a Class E Felony, and punishable by a fine of up to $5,000 and up to four years in prison.

Aggravated Criminal Contempt is the most serious Criminal Contempt charge, and is a Class D Felony.  Aggravated Criminal Contempt occurs when a defendant intentionally or recklessly causes physical injury, commits First Degree Criminal Contempt and has a previous conviction of Aggravated Contempt or First Degree Contempt charge within the past five years.  Aggravated Criminal Contempt is a Class D Felony, which includes up to a $5,000 fine and up to seven years in prison.

WHAT TO DO IF YOU ARE ALLEGED TO HAVE VIOLATED AN ORDER OF PROTECTION?

If an individual has been found to have violated an Order of Protection, intentionally or otherwise, and with the permission of the subject of the Order of Protection or otherwise, they can be arrested for Contempt as they are violating a court’s order.  As mentioned above, these are Contempt of Court charges, which can carry serious implications, not only in the way of prison time and fines but also on a host of other indirect consequences such as probation, child custody and even voting rights.

It is important to have a professional assist in navigating these complex legal issues.  If you have been alleged to have violated an Order of Protection, please contact Jonathan Shalom, Esq. at The Law Offices of Jonathan Shalom at (516) 807-1748 for a consultation. Jonathan Shalom is a licensed New York State Attorney with offices conveniently located in Midtown Manhattan and Queens, NY. The Law Offices of Jonathan Shalom is a general law practice with a specific focus on State and Federal Criminal Defense and Healthcare Law providing effective legal counsel to Healthcare Entrepreneurs, Physicians and various Providers with Corporate, Regulatory and Fraud & Abuse matters.

 By Jonathan Shalom, Esq.