Articles Posted in Domestic Violence

The defendant moves for an order vacating the judgment of conviction on the ground that he was denied effective assistance of counsel in that his attorney failed to advise him of the risk of deportation when he pled guilty. The Probation Department opposes the motion. For the reasons stated below, the motion is denied.

The defendant was charged with attempted murder in the second degree, attempted assault in the second degree and assault in the second degree, for acts committed against his wife. After extensive negotiations and after a pre-trial suppression hearing, the defendant pled guilty, before another judge of the County court, to one count of robbery in the second degree, in full satisfaction of all the charges contained in the indictment. The agreed upon sentence was a term of imprisonment of six (6) months, followed by a period of five (5) years probation, with intensive supervision as a domestic violence offender. An order of protection was issued for a period of five (5) years. On April 4, 2005, the negotiated sentence was imposed.

The defendant remained under intensive probation supervision and the court received updates, until a domestic violence incident occurred on November 3, 2005. A violation of probation was filed and a warrant was issued. The defendant was arrested and indicted for assault in the second degree and criminal contempt in the first and second degree (for violating the order of protection issued on April 4, 2005). After a jury trial, the defendant was convicted of criminal contempt in the first degree. Thereafter, the court imposed a sentence of a term of imprisonment of 2-4 years. Further, on the violation of probation, the court imposed a term of imprisonment of two (2) years to run consecutive to the other sentence, and a 2 year period of post release supervision.

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A Kings Criminal Lawyer said that, this is an appeal by the defendant from a judgment of the Supreme Court, Kings County, rendered April 22, 2009, in Kings County, convicting him of burglary in the second degree, criminal contempt in the first degree, and criminal contempt in the second degree, upon his plea of guilty, and imposing sentence. Upon the appeal from the judgment, the duration of a final order of protection issued at the time of sentencing will be reviewed as a matter of discretion in the interest of justice.

A Kings Domestic Violence Lawyer said that, in July 2006 the Legislature amended Criminal Procedure Law § 530.12(5) to increase the maximum duration of a final order of protection issued in favor of the victim of a felony family offense from five years to eight years. The clear purpose of the amendment was to enhance the protection available to victims of domestic violence. On this appeal, the court is asked to determine whether the duration of the final order of protection issued in favor of the victim should be reduced from eight years to five years because the subject offenses were committed before the amendment of CPL 530.12(5) became effective.

A New York Order of Protection Lawyer said that, between July 5, 2004, and December 23, 2004, the defendant assaulted his former girlfriend on several occasions, broke into her apartment, and repeatedly harassed and stalked her in violation of temporary orders of protection. For these acts, the defendant was charged in two separate indictments with multiple crimes, including burglary in the second degree, attempted assault in the third degree, criminal contempt in the first degree, criminal contempt in the second degree, aggravated harassment in the second degree, stalking in the fourth degree, and menacing in the second degree. The two indictments were consolidated on October 24, 2005. Shortly thereafter, on November 16, 2005, the defendant agreed to plead guilty to burglary in the second degree, criminal contempt in the first degree, and criminal contempt in the second degree, in full satisfaction of the consolidated indictment.

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A Kings Domestic Violence Lawyer said that, the defendant was charged with, inter alia, harassment in the second degree based on numerous harassing and threatening telephone calls he allegedly made to his former paramour, with whom he had two children. On January 18, 2007, a misdemeanor complaint was filed charging the defendant with, inter alia, aggravated harassment in the second degree (three counts). By order dated January 31, 2007, the action was transferred from the Criminal Court, Kings County, to the IDV Part of the Supreme Court, Kings County. A Kings Criminal Lawyer said that, the misdemeanor complaint was converted to information by the complainant’s attestation dated February 7, 2007. After a nonjury trial, the court convicted the defendant of three counts of attempted aggravated harassment in the second degree.

A Kings Criminal Defense Lawyer said that, the defendant argues for the first time on appeal that the IDV Part of the Supreme Court, to which his case was transferred from the Criminal Court, lacked jurisdiction over the instant matter because neither a grand jury indictment nor a superior court information was filed by a district attorney, as required by CPL 210.05, and he never waived his right to an indictment by a grand jury. Moreover, the defendant contends that there was no legislative mandate authorizing the transfer.

The issue in this case is whether CPL 210.05 precludes the Integrated Domestic Violence (hereinafter IDV) Part of the Supreme Court from exercising its jurisdiction under the New York State Constitution to try misdemeanor charges against a defendant in the absence of an indictment or a superior court information.

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A Kings Domestic Violence Lawyer said that, defendant move to have the People produce specified documents. Defendant claims that the records are vital to the preparation of her defense based upon the “Battered Woman’s Syndrome” (BWS). Defendant has commenced three separate proceedings for the documents. Defendant has issued a subpoena for these documents, requested the material under the Freedom of Information Law (FOIL; Public Officers Law § 87), and requested the material under CPL article 240.

On or about January 1, 1988 at approximately 11:00 A.M., at 106 Steuben Street in Kings County, the defendant stabbed her boyfriend to death. Defendant was apprehended at the scene of the crime. Defendant gave three oral statements, one written statement, and a videotaped statement to law enforcement agents. All five statements tell essentially the same story. Shortly before midnight New Year’s Day 1998, defendant attempted to enter her paramour’s apartment with her key. Upon unlocking the door, defendant was able to open the door slightly, but not enough to gain entry. Seeing that the couch blocked the doorway, she believed her boyfriend to be asleep. She pushed the door gently so as not to disturb her paramour. Upon gaining entry into the apartment, defendant observed the victim “having sex” with another person (a person apparently known to defendant). Defendant had an argument with the said person and ordered her to leave the apartment. She left, and an argument ensued between defendant and her boyfriend. At the conclusion of the argument, the victim and defendant went to sleep in different rooms. During the course of the evening, defendant woke up her boyfriend to talk about the evening’s events, but he did not wish to talk about the matter. In the morning after both parties were awake, defendant continued to argue with her boyfriend. At about 11:00 A.M., during an argument, the victim was close to the defendant’s face. The defendant pushed the victim who, in turn, pushed defendant off her chair. Defendant grabbed a knife and stabbed the victim, killing him.

A Kings Criminal Lawyer said that, for this incident, defendant has been indicted on two counts of Murder in the Second Degree. At oral argument on August 18, 1998, defendant represented that an examination of the defendant had been conducted and defendant was found to suffer from Battered Woman’s Syndrome. The court’s records show that defendant received an order of protection against the deceased on October 9, 1996, which expired April 8, 1997. The record also shows that defendant is registered with the Family Protection Registry under Case # 96R072716 and order of protection # 1996-R00465. There is thus a basis to believe that there were prior incidents between defendant and the deceased.

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The parties were married in New York in May 2002. While married, the father worked as a first grade teacher and the mother worked as a mandarin interpreter. The criminal parties knew each other for only a short time prior to their marriage, at which point, the mother became pregnant with the parties’ child. In December 2002, the mother gave birth to a son. At the time of the son’s birth the parties were living separately; however, during the early days of the marriage, the parties lived at the mother’s relative’s residence in Brooklyn. A great amount of the parties’ marriage can be characterized as tumultuous and there were incidents of domestic violence.

A Kings County Domestic violence lawyer said that In support of her request that she be awarded full legal custody of the child, the mother alleges that the father is merely trying to avoid paying child support and that he does not really care about custody. She argues that, until recently, the father lacked involvement with the child since the child was conceived. The mother contends that the father demanded a paternity test to prove his relationship to the child, but even after paternity was established, the father had little to do with the child. The mother avers that, as recently as 2005, the father was willing to forego custody of the child, in favor of the mother.

The mother argues that if the father is awarded custody, he will limit access between her and her child. The mother contends that the father will be influenced by his parents, who do not like her, and that they would encourage him to keep the child from her. The mother further contends that while the child was living with the father, her sister who was visiting from California called the father hoping to see the child. In contrast, the mother testifies that she will allow the father to see the child as she did in December 2004 when she complied with court orders and flew the child from California to New York to see his father.

The court heard credible compelling testimony from the parties long-time rabbi and spiritual leader who not only was involved for many years with the wife’s organization as an advisor, but whose young daughter was a close friend of the youngest child; the parents entertaining each other at respective homes. Once the marital discord started, though, the couples’ relationship soured. The rabbi clearly disturbed and still bewildered by not only the wife’s distancing and resignation from the synagogue which they belonged for many years, but the denial of access to the youngest daughter by not only to him but more painfully from her best friend, his own daughter. These two children had a close bond, spent time in camp and each other’s home, which was interfered with by the mother.

The rabbi, who had often and consistent contact with the wife, never knew or heard of any domestic violence and would occasionally meet with the wife and clients of the organization who were victims of domestic violence. The rabbi relayed that, in his opinion, the wife’s descriptions of events to him were “generally truthful but often with exaggeration”.

It is clear to the criminal court, the wife’s exaggeration, coupled with an escalating need and quest to control, permeates the wife’s testimony. Moreover, in his report the doctor noted that the wife “demonstrates personality traits characterized by a high degree of anxiety, with a somewhat histrionic and medodramatic tendency, which leads to a certain degree of catastrophicing particularly in relation to her daughter [youngest daughter].” The issue of exaggeration and control by the wife was all too evident during the course of the trial, as was the fact that the father chose to ignore much of the tension and dysfunctionalism that went on during the marriage in the hope of saving the marriage, culminating in a loss of control and inappropriate verbal rage and a literal “tug of war” with each parent trying to pull the child. That rage, when taken in the context ofthis divorce action, has serious, deleterious affects on the family unit. Clearly, though, this divorce was long overdue.

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A Kings Domestic Violence Lawyer said that, New York City Administration for Children’s Services (hereinafter petitioner) filed an application for a prepetition ex parte court order seeking access to enter the home of a family subject to an ongoing child protective investigation that was commenced by a report to the State Central Registry (hereinafter SCR) on July 13, 2009. The SCR report concerned allegations of possible domestic violence occurring in the presence of the children. Brought pursuant to Family Court Act § 1034, titled “Power to order investigations,” the instant application pertains to the family consisting of the parents and their five children, ages 12, 10, 8, 7 and 3. Petitioner’s application for an order of entry into their home set forth: A report of suspected child abuse or maltreatment was made to SCR on July 13, 2009. The report stated that there was concern about ongoing domestic violence in the home involving the father assaulting his wife with the most recent incident occurring several days earlier when the father beat his wife so severely that she required stitches to her forehead. The SCR report set forth the belief that this altercation occurred in the presence of all of the children.

A Kings Criminal Lawyer said that, on the same date the report was made and again on July 15, 2009, the CPS worker assigned to investigate the SCR report conducted home visits to the case address and left written notes requesting that the parents contact her. The mother and her five children went to petitioner’s field office and met with the CPS worker. She, however, “refused to provide any personal information” and would not allow the CPS worker to speak to the children alone or in her presence; the child also refused to speak to the CPS worker. When the CPS worker asked her if she would agree to schedule an appointment to permit her to conduct a visit to the home, she replied no because she did not know her. The CPS worker continued to make several more attempts to gain entry into the Smith home through telephone contact and subsequent unannounced home visits. On July 28, 2009, the CPS worker sent a letter advising the parents of their need to cooperate with her investigation.

On August 4, 2009, the CPS worker visited the summer camp, which the four oldest children attended, in an effort to interview them; all of the children refused to speak to her. Thereafter, the CPS worker made several more attempts to visit the home and to contact the parents by telephone with no success. On August 24, 2009, the CPS worker made another unannounced home visit and again left a written note for the parents asking them to contact her. On September 2, 2009, the CPS worker made an unannounced home visit and while Mrs. Smith answered the door she did not permit the CPS worker into the home stating, “She was not prepared to receive company.” The CPS worker spoke to Mrs. Smith in the hallway and asked her to attend a family conference at her office the next day, September 3, 2009, at 10:00 A.M. Although she agreed to attend the meeting neither she nor her husband did so.

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A Kings Domestic Violence Lawyer said that, this court is called upon inter alia to make certain decisions based upon a dispute involving allegations that a mother, through her actions, actively and passively alienated and influenced a child to the point that the child may no longer have any inclination or desire to see her father again. As equally important, the court must also determine the credibility of claims of egregious domestic violence during a long-term marriage of 31 years alleged to have been perpetrated against the mother, herself an advocate for the rights of women in divorce actions.

A Kings Criminal Lawyer said that, the parties were married in August 1973. The wife is presently 52 years of age and the husband is presently 56 years of age. On the date of their marriage, plaintiff was 22 years of age and a college graduate. Defendant was then 18 years of age and a high school graduate. During the course of the marriage, four children were born to the parties, to wit: the eldest daughter, age 32; the eldest son, age 26; the youngest son, age 20; and the youngest daughter, age 13. The two youngest children, the youngest son (presently age 20) and the youngest daughter (presently age 13), remain unemancipated. During the course of the litigation the youngest son resided in Israel or was a resident student at a university. It appears the youngest son is fully and voluntarily supported by the father and does not permanently reside with either party, although he does reside with the mother during the summer recess from school.

A Kings Order of Protection Lawyer said that, the husband commenced this action in December 2004 after the wife withdrew an action commenced in November 2004. The parties litigated in Family Court from November 10, 2004, through January 31, 2005. The husband also brought a writ of habeas corpus under a separate index number against the wife and her mother which was dismissed. The Family Court action was consolidated into the Supreme Court action, on consent. The husband was granted a divorce, on consent, after proof, on June 10, 2005, on the grounds of constructive abandonment and shortly thereafter the husband gave the wife a Jewish divorce (get). A law guardian, was appointed for the youngest daughter, and a neutral forensic evaluator, was appointed by the court.

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A Kings Criminal Family Lawyer said that, petitioner mother and guardian of her daughter and son, who reside with petitioner, seeks a court order changing her name and her children’s names because petitioner is a domestic violence victim; her abuser knows all her identifying information; and she fears that her and her children’s lives and safety are in serious jeopardy unless she and her children change their names. Therefore she also requests, as essential to their safety, that notice of their name changes not be (1) given to her daughter’s father, the abuser, (2) published or (3) maintained as a court record accessible to the public. She attests that if the name changes are made public or disseminated, her “attacker will find out,” and her and her children’s safety will remain in jeopardy.

A Kings Domestic Violence Lawyer said that, in addition to petitioner’s personal knowledge of the father’s abuse over the course of two years and his persistent, continuing threats to kill her, hearsay evidence indicates he also has a long criminal record and is wanted by the State of Georgia, her former residence, on charges of sex crimes, assault with a deadly weapon, possession of a firearm, and carjacking. On October 16, 2003, the New York County Family Court issued an order of protection requiring the father to stay away from petitioner and her children, whose residence the court kept confidential, and refrain from threats, intimidation, or any criminal offense against her.

The issue in this case is whether petitioner’s petition for change of name should ne granted.

Plaintiff-husband moves, by order to show cause for an order: (1) directing defendant-wife to produce the subject child, in the court; and (2) transferring custody from the wife to the husband; and (3) granting such other and further relief as the court may determine.

A Kings County Family attorney said that the parties herein were married in a religious ceremony in June 2008, in Aventura, Dade County, Florida. There is one (1) child of this marriage who was born in August 2009 recently turned two (2) years of age. The husband commenced the instant action for divorce in Kings County, New York and for custody of the minor child in June 2011. At the time the action for divorce was commenced, the parties were living apart for several months.

The wife instituted an action for divorce in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida and filed and received an ex-parte injunction in March 2011 enjoining either party from removing the child from the State of Florida and allowing supervised visits with the child. The wife predicated her original petition on the grounds of domestic violence and the husband’s allegedly ordering the wife to take the child and reside with the maternal grandparents in Florida. Her petition in Florida has since been amended in July 2011 to include claims for both spousal and child support and alleging assault, battery and cyber stalking by electronic communication in Florida.

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