August 2022 - Law Office of Frank Ciardi

Are Domestic Violence Rates Still Rising?

by The Law Office of Frank Ciardi | Aug 30, 2022 | Criminal Defense

Because of increased financial stress and anxiety, domestic violence rates increased significantly during pandemic lockdowns.^[1] Unfortunately, the domestic violence rate has continued to increase since 2020. The exact rate of increase varies, largely depending on who you ask.

Other things are more certain in this area. For example, domestic violence usually has criminal and civil consequences. Most law enforcement agencies have mandatory arrest policies. If officers suspect domestic violence occurred, the aggressor immediately goes to jail. Additionally, officers must usually inform victims of their right to obtain a protective order in civil court.

As the rate of domestic violence increases, the role of a Rochester criminal defense lawyer remains the same. Both parties have important legal rights in this area. Alleged victims have the right to seek protection, and defendants have the right to present their side of the story. An attorney is a strong voice for defendants in criminal and civil court cases.

Domestic Battery

Usually, domestic battery is a misdemeanor in New York. When possible, prosecutors enhance these charges to aggravated assault, a felony. The matter usually goes to a designated domestic violence court in both cases. Prosecutors in these courts have special training and, in many cases, access to additional resources.

Elements of the Case

Misdemeanor domestic battery is basically a harmful or offensive touch. Furthermore, the alleged victim must be in a protected class. Almost all domestic battery cases involve husbands and wives or estranged husbands and wives. Other protected classes include two people who are related by blood or marriage and current or former dating partners.

There’s a difference between a physical injury and a harmful or offensive touch. Domestic battery charges could hold up in court even if the alleged victim wasn’t physically injured. An injury just makes it easier for prosecutors to establish the intent element.

Usually, aggravated domestic battery involves a weapon or a serious injury. Almost any solid object that’s larger than a toothpick could be a weapon in this context. The serious injury must usually be something bad enough to put the alleged victim in the hospital.

Resolving the Case

Lack of evidence, specifically issues with the complaining witness, is usually the best defense against both kinds of domestic battery.

Technically, an alleged victim is a material witness. Therefore, the alleged victim cannot drop criminal charges. However, if the alleged victim refuses to cooperate, things get very tough for prosecutors. Typically, they can either subpoena the alleged victim and force him/her to testify or use an obscure loophole in the hearsay rule to admit part of the police report into evidence. Both these things are very rare. Usually, prosecutors would rather drop the matter and offer a favorable plea deal.

This arrangement usually involves reduced charges, like reducing aggravated assault to ordinary assault, or a reduced sentence, typically probation. Since domestic violence courts usually handle these cases, the conditions of probation often include anger management and other such classes.

Protective Orders and Rochester Criminal Defense Lawyers

Many states have civil and criminal protective orders. Civil orders are usually broader than criminal orders. Only criminal protective orders are available in New York. If an alleged victim cannot find a criminal judge, a civil judge may issue a protective order, but these orders are only valid for four days.

Types of Protective Orders

A judge may grant a temporary protective order based solely on the alleged victim’s affidavit. This order is usually a bare-bones order containing a keep-away order and an anti-stalking order. Judges may include other provisions based on good cause, such as an order excluding a defendant from a shared residence.

Temporary protective orders are valid until the defendant is served with the order and appears in court. Following a full hearing, a judge may grant a final protective order. These orders last for up to two years unless the alleged victim proves aggravating circumstances, such as:

Physical injury (which is usually present),
Use of a weapon,
History of repeated violations,
Defendant’s criminal history, and
Defendant’s injury of other people in the household.

An aggravating circumstances protective order could last up to five years in New York. Permanent protective orders often include additional provisions as well, such as financial support orders and firearms surrender mandates.

Protective Order Defense

Lack of evidence is also a defense in these matters. Obviously, the alleged victim is willing to press the issue. However, the alleged victim’s testimony might be tainted. For example, many alleged victims were drinking at the time of the incident. Memory and perception are question marks in these situations. Other times, a parallel proceeding is ongoing in family court. Very few alleged victims fabricate stories to gain leverage in a family court proceeding, but these things do happen.

An out-of-court protective order settlement usually features a shorter duration and less onerous legal provisions.

Book a Consultation with an Experienced Criminal Attorney in Rochester

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. The sooner you call us, the sooner we start fighting for you.

Sources:

[1] https://news.harvard.edu/gazette/story/2022/06/shadow-pandemic-of-domestic-violence/

Do You Need a Defense Attorney in Rochester if You’re Arrested for Possession but the Drugs Aren’t Yours?

by The Law Office of Frank Ciardi | Aug 15, 2022 | Criminal Defense

Statements like “These drugs aren’t mine” and “I was just holding this bag for a friend” are pretty much the worst things a suspect can say during a drug possession investigation. There’s a difference between ownership and possession. ^[1] Therefore, these excuses usually fall on deaf ears. Additionally, the officer’s next question is usually, “what’s your friend’s name?” That’s not a question anyone wants to answer. Finally, depending on exactly what was said, the statement might be an admission of possession. More on that below. If you’re arrested for possession, regardless of who actually owns the drugs, it’s crucial for you to retain a top criminal defense attorney as soon as possible.

Public Defender vs. Criminal Defense Attorney if You’re Arrested for Possession

If you were in possession of someone else’s drugs, you definitely need a qualified defense attorney in Rochester. In these cases, a public defender or court-appointed lawyer is usually a bad idea. The image of the overworked public interest lawyer is a little inaccurate, but many of these lawyers do have very heavy caseloads. Non-ownership drug possession cases require lots of attention that a public interest lawyer may be unable to give. A private attorney with experience and dedication is a much better option.

Investigatory Statements

The I-word is Legalese for any statements the defendant made between the time an officer says “pull over,” and the moment an officer handcuffs the defendant.

Generally, these statements are only admissible if an officer Mirandizes the defendant. The law requires officers to administer the Miranda rights before they begin custodial interrogation. “Custody” doesn’t mean placement in a steel cage or the back seat of a police car. Instead, “custody” means whenever a reasonable defendant doesn’t feel free to leave. When officers question them, most people don’t feel free to leave.

Almost all of us have been pulled over before, and officers never give the “you have the right to remain silent” spiel. Because of this rule, a defense attorney in Rochester may be able to exclude damaging investigatory statements. This issue is complex since the Supreme Court recently watered down the Miranda rule. ^[2]

Drug Possession Elements and Defense Attorneys in Rochester

As mentioned, drug ownership is technically irrelevant in a drug possession case. However, it could affect the elements of a possession case. Prosecutors must establish three elements beyond a reasonable doubt in these cases:

Proximity,
Control, and
Knowledge

Ownership usually doesn’t affect proximity. Defendants either have drugs in their possession, or they don’t. Usually, anything in the room, even if it is across the room, is legally close to a person. For this same reason, ownership usually doesn’t affect control.

Knowledge is different. Let’s take a closer look at the two aforementioned excuses: “These drugs aren’t mine” and “I was just holding this bag for a friend.” The first statement is an admission of knowledge. The second statement is not an admission of knowledge. So, a word or two could make a big difference.

As for the defendant’s actual words, body camera audio transcripts are proof beyond a reasonable doubt. Anything else, such as the officer’s recollection of the statement, is he said/she said. Usually, that’s not proof beyond a reasonable doubt.

Possible Resolutions if You’re Arrested for Possession

Non-owner possession cases could involve procedural and/or substantive defenses. Either one could encourage prosecutors to offer a favorable deal. The stronger the defense, the more likely the state is to back down. Prosecutors usually feel like they haven’t done their jobs if defendants avoid all punishment. So, rather than risk a not-guilty verdict at trial or an unfavorable result at a pretrial hearing, they offer favorable deals.

These deals usually include pretrial diversion or deferred disposition in drug possession cases. Both have the same result.

Prosecutors usually offer pretrial diversion for evidence or political reasons. We discussed the evidence problems in these cases above. Politically, many people view drug possession as a health and safety issue and not a criminal law issue. Common pretrial diversion program requirements in drug possession cases include community service and a substance abuse evaluation. Once a defendant successfully completes the program, prosecutors dismiss the charges.

Pretrial diversion is a judicial remedy. The judge doesn’t find the defendant guilty when the defendant pleads guilty to non-ownership drug possession. Instead, the judge defers that part of the proceeding until the defendant completes probation. The judge dismisses the case if the defendant successfully completed this court supervision program.

There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced defense attorney in Rochester. Convenient payment plans are available.