Domestic violence and sex offense are some of the most serious types of crimes one can be charged with. If convicted of these types of crimes it will have a profound and detrimental effect on the person convicted.
Domestic Violence charges are unfortunately so profound and so common that both Family Court and Criminal Court can have concurrent jurisdiction over the same offense. Moreover most counties have now developed an “integrated domestic violence court” which can combine a family offense or criminal case with a custody or visitation case all in the same court.
In Family Court a domestic violence case is called a family offense proceeding and is commenced by the filing of a family offense petition. Anyone can file a family offense proceeding and the petitions are provided for in court. However if the petition does not allege facts which would sustain any domestic violence charge then the petition is subject to dismissal by the court.
After reviewing a potential client’s case, Attorney Jason Henskee recommends having his office prepare the petition on behalf of the client to ensure that it is done correctly and sufficient on its face.
Unless the petition is an emergency petition which will allow an individual immediate access to the courts, a regular petition is filed with the court and an initial court date is scheduled. At the initial court date the parties are advised of their right to counsel and the respondent is provided a copy of the petition. The petitioner may request immediate relief such as a temporary order of protection at the first court appearance.
Criminal Court domestic violence cases are different from family offense cases in Family Court in many respects. An individual in Criminal Court is called a defendant whereas in Family Court the individual charged is called the respondent. In Family Court an individual, the Petitioner is prosecuting the case. In a Criminal Court the District Attorney’s Office prosecutes the case. The proceedings and process in each court are generally different and can have different outcomes despite having the same fact pattern.
Domestic Violence charges require some form of a relationship in order to be categorized as “Domestic”. Some of those relations include husband to wife, girlfriend to boyfriend, siblings, parent to child, and people involved in an intimate relationship.
Some charges that may constitute a family offense charge include Assault, Sexual Misconduct/Abuse, Stalking, Menacing, Harassment, Aggravated Harassment, or Obstructing of breath/strangulation.
In nearly all domestic violence cases an order of protection is issued against the individual that is charged with the offense. The order of protection is set forth under Criminal Procedure Law Section 530.12. The order of protection can be either a number “1” also entitled a “stay away” order or protection or a number “2” entitled a “non-offense” order of protection.
Unfortunately orders of protection can be granted by a court “ex parte”, essentially meaning that they can be granted without the one charged actually being present in court. However there is an obligation that the order of protection is served upon the individual charged as he or she cannot be expect to follow it if unaware of its existence.
A stay away order of protection prohibits all communicate and contact with the protected person. Whereas a non-offense order of protection allows the one charged or convicted to still contact, speak, and be in the presence of the protected party or parties. Violating an order of protection is a serious crime which can sustain a charge of criminal contempt.
An order of protection in domestic violence cases also effects an individual’s ability to possess a firearm under federal law. While the order of protection is in place or if an individual is convicted of a domestic violence crime he or she cannot posses a firearm.
Another aspect of domestic violence cases that is unique is that certain situations require a mandatory arrest pursuant to Criminal Procedure Law Section 140.10(4). Those situations include: a felony is committed against a family or household member, a stay away order of protection has been violated, a family offense has been committed in violation of an order of protection, a family offense misdemeanor has been committed against a family or household member unless the victim requests otherwise.
Having an attorney that understands the effects and consequences of an order of protection is essential in these types of cases. Orders of protection can substantially affect ones living arrangements, employment, relationships, visitation with children, among other important aspects of ones life.
Attorney Jason Henskee has represented hundreds of individuals charged with domestic violence offenses and continues to do so. Through his experience he has been able to assist clients with obtaining non domestic violence dispositions and either non-offensive orders of protection or no orders of protection depending on the case. Each case is different and prior results do not guarantee future outcomes.
Sex offense cases are very difficult and complex for a variety of reasons. One of the most glaring difficulties is the social stigma that comes with a sex offense charge or conviction. Being accused or labeled a sex offender adversely effects a person’s life in many respects.
Sex offense cases fall under section 130 of the New York Penal Law and include a plethora of charges from sexual misconduct, forcible touching, sexual abuse, or rape. As with many other types of penal law offenses the nature of the offense will dictate the degree charged and the possible sentencing exposure as well.
The terms that are commonly used for sex offenses are defined under section 130.00 of the New York Penal Law. Some terms include “sexual intercourse”, “oral sexual conduct”, “forcible compulsion”, and “foreign object”. It is important that your attorney understand these terms and how they might apply or not apply in your particular case.
Sex offenses cover an entire spectrum of fact patterns that will sustain various types of sex offense charges. Even if the sexual act was consensual, it may not be deemed lawful under New York Law. For example consensual sex between a 19 year old and a 16 year old would fall under statutory rape because the “age of consent” in New York State is 17 years old. A person’s mental capacity can also be the basis for a sex offense if that person is incapable of appraising the nature of his or her conduct. Also inmates at a correctional facility cannot consent to any type of sexual conduct unless in a facility that allows conjugal visits between married couples.
The other major component of these types of cases is the Sex Offender Registry Act (SORA). Depending on the outcome of the case a person convicted of a sex offense can be categorized as a level 1,2, or 3 sex offender.
A level “1” is the least restrictive. Level “2” is higher. Level “3” is the highest category. Under level’s “2” and “3” a registered sex offender will have his picture posted on the Sex Offender Registry Website which is open to the public.
The determination of one’s level is assessed using a document entitled a “Risk Assessment Instrument” (RAI) which utilizes a point system under different categories including but not limited to number of victims, prior offenses, use of force, and substance abuse issues. Once the points are calculated, a score of 70 or less will result in a level “1” designation, a score of between 75-105 will result in a level “2” designation, and a score of 110 and over will result in a level “3” designation.
An individual is entitled to a hearing by which the People must prove each of the points they wish to assess against the individual by clear and convincing evidence. The individual who is the subject of a SORA hearing may present evidence to mitigate their proposed level of designation.
There are many reporting requirements and restrictions placed on individuals convicted of sex offenses and designated as such. In addition the term of probation is usually much longer in sex offense cases.
It is essential to have an attorney who knows the Sex Offender Registry Act and the RAI thoroughly and has experience in this field. The difference between each level is significant and substantially effects one’s life.
Attorney Jason Henskee has experience and knowledge in this area of law. He can explain the SORA process in detail and what one can expect in his given case.
These types of cases require a unique approach. Many cases may only be based on a he said she said allegation without any further evidence. Some cases may have strong evidence such as DNA, eye witnesses, results from a rape kit taken at the hospital, or admissions made by the person charged. Therefore it is extremely important to have your case reviewed immediately by an attorney that handles these types of cases.
As with domestic violence cases nearly all sex offense cases result in an immediate order of protection being issued. Again these orders of protection can substantially affect the way one lives, works, and where he or she can go.
In many of these cases Attorney Jason Henskee will utilize the services of a private investigator to interview the complainant if possible, any witnesses, and to collect data and other evidence. The private investigators report will help inform Attorney Jason Henskee as to how the case should proceed.
If you have been charged with a Domestic Violence or Sex Offense it is important to take immediate action to protect your rights. Attorney Jason Henskee can review your case with a free 30 minute consultation.
Additional fees may apply to longer consultations.