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How Is A Domestic Violence Charge Determined To Be A Misdemeanor Or A Felony?


The more serious offenses, as found by the legislature, are felonies. The felonies tend to include more serious injury, or involve weapons, or involve more vulnerable victims, or involve repeat conduct. But each crime has its own definition and the legislature tells us if that particular crime is a noncriminal offense, a misdemeanor or a felony. Even within the large category of felony, the legislature grades felonies.

Does An Alleged Victim Have To Be Physically Injured For Domestic Violence Charges To Be Brought?

No. An attempted assault against a family member supports a domestic violence charge. Mere threats of violence can support a harassment charge. One can think of many instances of intimidation that do not leave a physical mark but have a very coercive effect, and may leave a victim terrified.

What Are The Penalties Associated With A Domestic Violence Conviction In New York?

If the litigation is in the Family Court, the court could issue an order of protection, suspend a pistol permit, impose a one year sentence of probation, require counseling, and order restitution of up to $10,000.00. Family Court can impose a jail sentence against one who violates an order of protection.

If the litigation is in the Criminal Courts, the court could incarcerate (the length of time depends upon the crime of conviction) even without a violation of an order of protection, sentence one to probation, require counseling, and order restitution and fines.

What Role Do Evidence In Witnesses Play In A Domestic Violence Case?

It is impossible to prove a case without evidence. The inability to prove a case leads to its dismissal. This is as true in cases of domestic violence as in any other case.

What differs in domestic violence cases are that these cases sometimes involve conflict internally felt by both the victim and the accused. Many of these cases require the testimony of the victim, as there are no other witnesses. Yet because of the nature of their relationship which may include happy memories and shared children on one hand and severe pain and humiliation on the other hand, both actors are conflicted.

To testify against someone you do or have loved is often difficult. Sometimes this effects the quality of proof. Sometimes the witness will not even cooperate with the prosecuting authorities. In a proof based legal system, this reluctance to testify and cooperate can affect the ability to prove the case.

But one should not overstate this. Prosecutors can prove many cases without the testimony of the victim. Sometimes there are other witnesses. Some domestic violence occurs in public or on video footage. Some domestic violence leaves noticeable injuries, from death to abrasions. Some such cases involve confessions.

The point is that all cases must have evidence. But the evidence can come from sources other than the victim.

Can Prosecution Use Past Instances Of Domestic Violence In A Current Case?

If the prior acts of domestic violence are inextricably interwoven with the charged crimes, provide necessary background or complete a witness’s narrative, the court will allow them to come into evidence. (People v. Poquee, 9 A.D.3d 781 [3rd Dept. 2004] lv den 3 N.Y.3d 741 [2004]). Likewise, the court will allow prior acts of domestic violence into evidence if they prove motive, intent, absence of mistake, common plan or scheme or identity. (People v. Womack, 143 A.D.3d 1171 [3rd Dept. 2016] lv den 28 N.Y.3d 1151 [2017]).

What Are The Long Term Effects Of Having A Domestic Violence Conviction? Can They Be Expunged?

If it is a criminal conviction, the conviction is public. Criminal Procedure Law Section 160.59 allows one to request the conviction be sealed if one meets the stringent criteria after ten years. The criteria are:

  1. one has no more than two crimes including not more than one felony.
  2. one has not previously obtained a sealing order after a judicially sanctioned drug treatment program or this new statut
  3. one does not have a pending criminal cas
  4. one’s last conviction was at least ten years ago, with any period of jail time served excluded from the ten year calculation. If one were sentenced to probation and then went to jail, the ten year period starts when last released from jail.

This sealing law will not allow a court to seal sex crimes, crimes requiring one to register as a sex offender, homicides, violent felonies, class A felonies, and attempts or conspiracies to commit these crimes. The long term consequences of a domestic violence conviction will effect a pistol permit, the ability to adopt and many employment opportunities.

For more information on Misdemeanor & Felony Domestic Violence, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (845) 794-1303 today.

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(845) 794-1303

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