NYC Order of Protection Defense Attorney

Defending New Yorkers Against Orders of Protection

Being served with an order of protection in New York City, especially in a criminal case related to domestic violence allegations, can be a distressing experience. You may be concerned about the impact on your personal life, your relationship with your children, and even your professional future.

But remember that you have rights and options. As a former New York City Prosecutor, attorney Mehdi Essmidi understands the nuances of protection orders and how they’re used in domestic violence cases. Our law firm is committed to providing aggressive defense representation to protect your rights and future.

Whether you’re facing a temporary or final order of protection, we’re here to guide you through the legal process. Contact us today for a free consultation.

Note: If you need to obtain a restraining order, please visit our page to obtain an order of protection in NYC. This page specifically addresses defending against these orders.

How Orders of Protection Work in Domestic Violence Cases

In New York City, orders of protection play a significant role in criminal cases, particularly those involving domestic violence. Here is an overview of how the criminal court system works:

Law Enforcement Probable Cause

When law enforcement responds to a domestic violence call, they have the authority to make an arrest if they have probable cause to believe a crime has been committed. This can happen even if the alleged victim doesn’t want to press charges. In these situations, the police may request a temporary order of protection on behalf of the alleged victim.

Judge’s Discretion in Criminal Cases

In criminal court proceedings, a judge has considerable discretion when it comes to issuing orders of protection. They can issue these orders at various stages of the criminal process — during the arraignment, as a condition of bail or release, as part of a plea bargain, or upon conviction.

Possible Restraining Order Defenses

When facing an order of protection in New York City, you have the right to defend yourself. As a former prosecutor, attorney Mehdi Essmidi knows the strategies used by the prosecution and can build a strong defense to protect your rights. Here are some defenses our criminal defense lawyers may use:

Challenging the Basis of the Order

One of the primary defenses is to challenge the very foundation of the order of protection. This can involve:

• Demonstrating that the allegations are false or exaggerated
• Proving that the petitioner’s claims are motivated by ulterior motives (such as gaining an advantage in a divorce or custody battle)
• Showing that the alleged incident was a misunderstanding or taken out of context

Our experienced legal team evaluates the facts of a case and determines the best strategy for defending against an order for protection.

Lack of Proper Evidence

Orders of protection must be based on credible evidence. We may challenge the order by:

• Highlighting inconsistencies in the petitioner’s statements
• Presenting evidence that contradicts the petitioner’s claims
• Demonstrating a lack of physical evidence to support the allegations

We carefully investigate the evidence used by the other party to determine the best course of action.

Crawford Hearings

In some cases, we may request a Crawford Hearing. This is a pre-trial hearing where we can:

• Show that the order is depriving the defendant of essential property interests

Crawford Hearings can be a powerful tool in your defense, potentially leading to the modification of an order of protection when there is a violation of property rights.

Violation of Your Rights

If your constitutional rights were violated during the process of obtaining or serving the order of protection, we may use this as a defense. This could include:

• Improper service of the order
• Lack of due process in issuing the order
• Violations of your Fourth Amendment rights during searches or seizures

Types of Protection Orders in New York City

Courts can issue different restraining orders depending on the circumstances of each case:

Limited Order of Protection

A limited order of protection, also known as a “stay away” order, is less restrictive than a permanent order. Key factors include:

• Allows parties to communicate freely but prohibits harassment, intimidation, or criminal acts
• May permit living in the same home or having contact for specific reasons (e.g., child visitation)
• It is often used in cases where complete separation isn’t necessary or practical

Full Order of Protection

A full stay-away order of protection also called a “no contact” order, is more restrictive. It typically:

• Prohibits all contact between parties, including in-person, phone, email, or social media
• May require the subject of the order to move out of a shared residence
• It can include additional provisions such as mandatory counseling or substance abuse treatment

Temporary vs. Final Orders

Criminal courts can issue two types of orders: temporary and final orders. Violating either type can result in criminal charges.

• Temporary orders are issued quickly, often without a full hearing. They typically last for a short period (until the next court date) and can be issued ex parte (without the presence of the accused).
• Final orders are issued after a full hearing (where both parties can present evidence), stipulation, or plea. It can last longer (up to eight years).

Violation of a Protection Order

Violating an order of protection in New York City is a serious offense with potentially severe legal consequences. Violations can range from direct contact with the protected party to indirect communication through third parties.

You may face fines, probation, or even jail time. Additionally, a violation can negatively impact existing or future custody arrangements. It can even lead to a criminal contempt charge.

If you’re accused of violating a protection order, it’s crucial to take immediate action:

• Do not attempt to explain or justify your actions to law enforcement
• Exercise your right to remain silent
• Contact an experienced domestic violence attorney right away

Dealing with Child Custody Issues

When an order of protection is issued in New York City, it can significantly impact child custody arrangements. This situation adds complexity to an already challenging process. Key points to consider include:

• Temporary custody provisions in protection orders
• Potential for supervised visitation
• Impact on long-term custody decisions
• Need for modification of existing custody orders
• Importance of strict compliance with all court orders

Dealing with Shared Property Issues

When a New York order of protection is issued, significant complications regarding shared property can arise. This is particularly challenging in cases involving married couples or partners living together. Key points to consider:

• Temporary possession of shared residence
• Denied access to personal belongings
• Violation of property interests
• Financial responsibilities for shared property

Crawford Hearings

Crawford hearings can play a crucial role in addressing shared property issues in the context of protection orders. These pre-trial hearings allow for:

• Contesting false claims about property ownership or damage
• Establishing your right to access shared or owned property
• Addressing financial responsibilities for shared assets
• Challenging the admissibility of certain evidence
• Cross-examining witnesses
• Presenting evidence to support your case

New York Criminal Procedure Laws

Here are key sections of the New York Criminal Procedure Law (CPL) that are particularly relevant to orders of protection in New York State:

CPL 530.11

This law sets the stage for how domestic violence cases are handled in New York, including when and how orders of protection can be issued.

• Defines “family offense” and who qualifies as a “family or household member.”
• Outlines procedures for arrest and court appearances in family offense cases
• Requires law enforcement to inform alleged victims of their rights and available services

CPL 530.12

This law governs much of the process the New York criminal court uses surrounding orders of protection:

• Authorizes courts to issue temporary and final orders of protection
• Specifies conditions that can be included in a protective order
• Outlines procedures for serving orders and consequences for violations

CPL 530.13

This law is particularly relevant if the defendant is facing criminal charges for non-family court orders.

• Allows courts to issue orders of protection for victims of any crime, not just family offenses
• Specifies duration limits for temporary and final orders
• Outlines procedures for modifying or terminating orders

Contact Our Order of Protection Defense Lawyer

Facing an order of protection in New York City can be a stressful experience with life-changing consequences for your personal and professional life. But you don’t have to deal with this alone.

Our NYC order of protection defense attorney, Mehdi Essmidi, has extensive experience defending clients from restraining orders. As a former prosecutor, Mehdi offers a unique perspective on how the prosecution approaches your case. Contact us for a free consultation regarding an order of protection.

Frequently Asked Questions

What’s the difference between a family court and a criminal court order of protection?

Family court and criminal court orders of protection serve different purposes and are issued under different circumstances. A family court order of protection is typically issued in cases involving domestic disputes or family offense matters in the New York Family Court.

A criminal court order of protection is issued as part of a criminal proceeding in the York Criminal Court. It’s often put in place when someone has been arrested for a crime involving domestic violence, assault, or harassment.

Can an order of protection be modified?

Yes, an order of protection can be modified, but the process isn’t always straightforward. Either party can request a modification, but it’s ultimately up to the judge to decide whether to grant the request. Common reasons for modification include property rights violations and changes in circumstances (such as work requirements or child custody arrangements). It’s advisable to consult an experienced attorney to guide you through the process and help present your case to the court.

What should I do if I’ve been served with an order of protection?

If you’ve been served with an order of protection, it’s crucial to take immediate action. Read the order carefully and make sure you understand all its terms and conditions. Contact an experienced criminal defense attorney to help you understand your rights and options and guide you through the legal process.