Monday, November 7, 2011
What can I do to drop an Order of Protection in New York?
There are two types of Orders of Protection (OOP) in New York, usually referred to as a Full order and Limited order of protection. The full order prohibits all contact of any kind,while a limited order allows contact but prohibits specific conduct (assaults, threats, harassment, etc.) They are requested by prosecutors in all domestic violence cases, (whether or not the "victim" wants one) and are almost always granted by the judge. If a defendant violates an OOP, he can be charged with Criminal Contempt of Court for disobeying the judge's Order. This is true even if the contact with the protected person was with their consent or initiated by them. In other words, if there is a full order of protection in effect, the "victim" cannot talk or have contact with the defendant without the defendant committing a new crime.
So what can a victim do if a judge has issued an OOP on your behalf and you do not want one? Contrary to popular belief, you can not drop or get rid of an order of protection yourself because only a judge can modify or eliminate an existing order. Instead, I recommend a three-prong approach you should take if you find yourself in this situation. First, set a realistic goal. By that I mean seek to have the OOP changed to a limited order of protection instead of no OOP at all. Since the conduct that will be prohibited in a limited OOP is the type of conduct that is impermissible under the law anyway, it makes what you are asking the judge to do seem much more reasonable. Second, you need to let the defendant's attorney know that you do not want an OOP so that they will argue to the judge on your behalf when the case is on in court. You should also let the prosecutor that is handling the case know know your feelings as well. The hope is that they will go along with recommending the change or at least not bjecting to it if asked by the judge. Therefore, it's important that you be clear in expressing to the prosecutor your reasons for not wanting the OOP and make sure they know that no one is threatening or forcing you into this decision. Finally, you should coordinate with the defendant's atttorney to appear in court to personally let the judge know how you feel. There is no guarantee that the judge will hear you out but this will likely be your best chance at getting the OOP changed. Remember to bring proper ID with you to court and to keep as far away from the defendant as possible in the courtroom so as not to cause any additional problems with the court.
Legal disclaimer: All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. However, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication. For a privileged private consultation, contact me at 212-385-8600 or via my website www.reasonabledoubtny.com