Orders of Protections
In New York State, including Westchester, Putnam, Rockland, and Orange
counties there are two types of Orders of Protection issued by the criminal and/or
Temporary Orders of Protection (TOP) and
Final Orders of Protection (FOP). As the names suggests generally a TOP issued during the case and
a FOP is issued at the conclusion of a case.
criminal defense attorney must be aware of the different types of Orders of Protections
and the complex terms within the document. The
criminal defense attorney must also be aware of the requirements of service of the Orders of Protection
and how an Order of Protection can be used as a basis for the crime of
Criminal Contempt should one be accused of violating an Order of Protection.
For questions on those exact issues contact a
criminal defense attorney as the laws can be complex and are beyond the information provided
in this Blog.
When one is accused of violating an Order of Protection the charge that
results is Criminal Contempt. There are various degrees of Criminal Contempt
but the theory is the same, that a person was issued an Order of Protection
and violated that court order in some manner. Criminal Contempt is a separate
and distinct crime that can result in incarceration.
Using an Order of Protection as a Sword instead of a Shield
The purpose of an Order of Protection is to help a person in need of protection
(Shield). However, some protected parties use their Order of Protection
as a weapon against the accused (Sword). This is a complex area regarding
the purpose of an Order of Protection. In this case, it is more important
than ever to seek the advice of a criminal defense attorney to resolve
this issue. There have been several examples of a protected party following
an accused, baiting an accused into meeting with them or contacting them
in an effort to catch the accused in a violation leading to a new arrest.
Sufficiency of the Charge (Criminal Contempt)
People v Ferenchak, ___ AD3d ___, the Court held where a misdemenor information alleging
violation of an order of protection containted no allegation that the
defendant was served with the Order of Protection, was present in court
when it was issued, or signed it and the supporting deposition fails to
reference the order or Protection, the misdemeanor information was jurisdictionally
defective for failure to assert facts that if true would establish the
defendant's knowledge of the Order of Protection.
Modification of Orders of Protection
Once an Order of Protection is issued to can be modified by the same Court
and sometimes other courts as well. Usually this is done by the criminal
defense attorney during a regular court appearance or by filing a formal motion.
People v Knight, ___AD 3d___, the oral modification of an order of protection issued at
sentencing which prohibited the defendant from every entering the county
again or traveling within 50 miles of the home of the person that the
order was meant to protect had to be stricken.
Orders of Protection are complex documents and need to be carefully reviewed
with an experienced criminal defense attorney. It is important to understand
the order of protection so it will not be violated and an experienced
criminal defense attorney can discuss the methods of how to modify the
order of protection or ask for its removal.