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N.Y. Bail Reform, Order of Protection and Least Restrictive Means

In People v Soto 2020 NY Slip Op 20015 Decided on January 8, 2020 Criminal Court Of The City Of New York, Bronx County the Defendant had a criminal history involving several orders of protection and violations of these orders of protection.

In New York State, well before New York Bail Reform, the order of protection was 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.

In People v Soto 2020 NY Slip Op 20015, the court noted the procedures in place to evaluate the likelihood of the criminal defendant's return to court in setting bail conditions:

Prior to arraignment on the present case, the defendant reported to the Criminal Justice Agency (CJA) during his release assessment interview that he lived in the Bronx with his father and grandmother and that he had resided in this home his entire life. The Court notes, that if true, residing at this residence with his father would be an apparent violation of the December 2018 order of protection that requires defendant to stay away from his father's home, and, therefore, a separate incident of failing to follow an order of protection issued on behalf of a member of the same family or household as defined by CPL §530.11.

The Court in People v Soto 2020 NY Slip Op 20015 noted the extensive criminal history of the Defendant. The defendant, accused, had a history of criminal contempt relating to other alleged Order of Protection violations. While there is a lot of banter about bail reform, it is important to note that the prosecutor did not ask for bail when the Court made the following determination:

CPL §510.10[4] sets out the types of securing orders permitted in a criminal case and the standards for a Court to apply. As defendant is charged with a felony enumerated in PL §70.02 of the penal law, a violent felony offense of Assault in the Second Degree, the Court is authorized to release this defendant on his own recognizance, release under non-monetary conditions or fix bail. Here the People did not seek monetary bail. Neither the People nor counsel for the defendant objected to the Court imposing pretrial supervision as the least restrictive alternative for ensuring defendant's return to court. The Court rests its decision on defendant's history of violating orders of protection against his father, his previous record of non-appearance in court evidencing a risk of flight, and his score on the pre-trial risk assessment. Defendant's demonstrated contempt in violating orders of protection, illustrated a documented failure to abide by court orders which this Court finds directly relevant to defendant's likely attendance at court mandated appearances. (See, CPL § 510.30[g][i]). Upon the Court's release determination at defendant's arraignment, the defendant signed an agreement to abide by a supervised release agreement with an approved pretrial services agency, Bronx Community Solutions (BCS). The written agreement, in conformance with CPL §510.40, outlines a defined set of non-monetary conditions particularized by the Court for this defendant, including an obligation to follow instructions from the judge and the supervised release program and to participate in weekly check-ins with BCS each month: two by phone, and two in person.

The Defendant is released while these onerous conditions of release remain - notably of which is the stripping of several constitutional freedoms upon the accusation of a purported victim: 1st Amendment, 2nd Amendment, 5th and 14th Amendment protections.

People v Soto 2020 NY Slip Op 20015 provides for the release of the accused despite this significant criminal history:

Neither the People nor counsel for the defendant objected to the Court imposing pretrial supervision as the least restrictive alternative for ensuring defendant's return to court.

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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