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Defense to Order of Protection Violation requires Trial

In People v. Rivera, 2020 N.Y. Slip Op 51158 (App. Term 2020), the First Department found that the accusatory instrument alleging a contempt of a court order, an order of protection, "was jurisdictionally valid because it contained nonconclusory factual allegations that, if assumed to be true, addressed each element of the crime charged." As soon as this order is issued, constitutional rights are eviscerated in favor of safety, security and "protection" of strangers and blood family alike.

In New York State, the order of protection is routinely issued in "domestic" violence cases. The Order of protection usually directs the accused to refrain from contact or communication with another person in derogation of that person's first amendment rights.

The Order of Protection will usually divest the accused of access to weapons (second amendment) and their ability to access the same location or dwelling as the subject who is being "protected." In reality, when accused of a criminal contempt, obstruction of breathing, assault, harassment, etc., charge in New York, the Order of Protection divests the accused of a number of vital constitutional protections without anything more than an accusation.

Once issued, which is why having an attorney at that first appearance, or the arraignment, is vital, the Courts will usually not second guess the issuing judge and the judge who issues an Order of Protection will not alter it unless there are some significant changes that justify a change to the conditions originally set forth.

Here, we have a situation of banging and kicking the door that is preumably not opened by the victim. The Court finds that "The information stated the precise date, time and location of the offense, and also established that, only three days earlier, defendant was present at the issuance of the order of protection and signed it." As Courts continue to develop virtual proceedings, it may be more difficult to evaluate and prove issuance, service and, as pertinent here, that the defendant signed it and knew the terms of the same.

What about the intent of the Defendant? Was what he did criminal in nature or something else? The Court finds that

Defendant's contention that his conduct was not in violation of the order of protection, but merely an attempt to gain access to the apartment, "was a matter to be raised as a defense to the contempt charge, not by insistence that this information was jurisdictionally defective" (People v Konieczny, 2 NY3d 569, 577 [2004] [internal quotation marks and alterations omitted]).

While we are left to speculate as to the original set of charges leading up to this latest arrest and latest enforcement of an Order of Protection, no speculation is needed when it comes to hiring an attorney who will challenge the Order of Protection at the outset when it strips the accused of his/her constitutional rights:

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)


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