The Order of Protection in New York State

marckokosa@gmail.com — Thu, 17 May 2018 20:24:41 +0000

Very often in a criminal matter, when a person is arraigned before a judge, the judge will issue what is called an “Order of Protection” or sometimes called a “Restraining Order.”

Well what is an order of protection, you ask? First, there are actually four types of order of protection that are normally issued by the Courts. Essentially, there are two different types, each with their own acronyms or nicknames, and they can be 1) temporary or 2) final, depending on the stage of the proceedings.

First, you have what is called a Limited Order of Protection, a/k/a “LOP” or “Refrain From” order. This order from the Court says that you can have contact with the protected party, but you can’t act bad against the protected party. Normally, the order says something like, “Refrain from assaulting, harassing, choking, stalking, etc… the protected party. Second, there is a Full Order of Protection, which means stay away from the person, stay away from their home, stay away from their school, place of business… Do not call, text, Facebook, Snap, Kik… you get the idea.

A question I often get asked is why is there an order of protection if my boyfriend, girlfriend, husband, or whoever doesn’t want the order of protection. The answer is that it is the judge’s decision and he doesn’t always agree with what the “victim” in a case wants. And that brings us to the next point that many people do not understand. Violating an order of protection is not a crime against the protected entity; rather, it is a crime against the Court and a judge. This is why the District Attorney often does not care about the victim’s input when it comes to breaking an order of protection.

When you violate an order of protection, you can be charged with Criminal Contempt in the Second Degree or Criminal Contempt in the First Degree. Criminal Contempt in the Second Degree is a class A misdemeanor, punishable by up to a year in county jail, or up to 3 years of probation, or a combination of both. Criminal Contempt in the First Degree is punishable by up to four years in prison.

So what do you do if there is an order of protection…? Follow it! Do not think for one second that just one little phone call won’t make a difference. It will. Do not think that by just driving by his/her house, no one will notice. They will. Don’t put yourself in a position to make your criminal case harder to win.

I’ve had countless cases where the matter was set to resolve in favor of the defendant and then a criminal contempt throws a wrench into the plans. Remember, the police and prosecutor often do not need a cooperative “victim” to prosecute a criminal contempt because the only evidence they need is a single witness who saw the order being violated and often this witness is a police officer.

So, my common sense narrative to anyone who has an order of protection placed against them is to sit down and actually read the piece of paper. Word for word. I realized that the Judge recites the rules of the order in Court during the criminal arraignment or proceedings, but most defendants are in some form of shock during these proceedings and don’t fully understand the instructions or consequences.

As usual, these posts are not a substitute for legal advice. For that, give the Kokosa Law Firm a call at (518) 907-4694.

The Grey Area of Mental Illness

marckokosa@gmail.com — Tue, 06 Jun 2017 18:23:21 +0000

Over the past year or so I’ve handled about a dozen cases that involved mental illness as a major aspect of the case. To be clear, I’m differentiating this from mental disorder, which could cover everything from mental illness to alcoholism. Believe me, if you get drunk, drive a boat, and kill a kid, I wouldn’t suggest a mental defect defense. What I’m actually trying to focus on is actual, and documented, psychological disorders that the individual has no control over what-so-ever.

In one matter, I worked with a bipolar schizophrenic woman who was on probation and allegedly violated that probation. For the life of me, I couldn’t understand why this woman was on probation when she clearly had a mental capacity that would have negated any criminal intent for the crime she allegedly committed some years earlier. Here, it was a public defender who convinced her that by pleading guilty she would avoid going to prison and avoid being put in a psych facility for the rest of her life. Here lies the rub, however… this woman was never a danger to the physical safety of herself or others. She would have never been put in a facility and thus her attorney convinced her to plead guilty based on a fact pattern that wasn’t true.

In the end, with me this woman had her probation terminated and the money she owed in restitution was converted to a civil judgement which means that she still owed the money but the courts could not criminally sanction her for not paying it. But I have to ask, would she have gone through hell for the 4 years before she got to me if her original attorney took the case by the horns, spoke to her doctors, spoke to her family, and at least tried to figure out what the underlying root issue of the trouble was? Far too often I see cases that are grounded in mental illness being treated as though they are run of the mill criminal arrests because nobody in the wheel of justice is comfortable dealing with psychological issues. I suppose it’s easier to deal with a case the way that you know how, but if you don’t know how to deal with mental illness cases, you shouldn’t be handling them. Our State has begun to put significant resources towards training law enforcement to handle the needs of psychologically distressed and impaired persons and I only see a handful of attorneys taking the same initiative to make sure these persons are treated fairly by the system. At the end of the day, the Judge and the prosecutor are only going to know the information about mental disease that the defense attorney can give them. Personally, I think our profession should spend more time educating ourselves with respect to the mental illness aspects of a case rather than ignoring them because they are often difficult to understand and even more difficult to explain to other people.

Now, I won’t go so far to say that every time a client says they have a psych defense it should be taken seriously. I recall many years ago when I was on the other side of the table the defendant indicated that she may want to pursue a psych defense that she had a mental compulsion that forced her to drive (it was a rather simple unlicensed driver case). That didn’t really pass the smell test, but I can say that if she procured a doctor’s report I would have definitely looked at it and taken it into consideration. Realistically, no doctor would have ever written such a report and her attorney (who I still hold in high esteem to this day) was cognizant of that fact. The point is, though, most prosecutors will evaluate a criminal defendant who has mental illness if their attorney does the legwork and produces substantive evidence of the mental illness and how it could effect the case.

So with that, I implore the justice system to recognize the effect of mental illness on criminal defendants. Often there are solutions that don’t require confining someone and stripping them of their freedom. I can say, however, I am very thankful to the State for investing in the officer training to recognize the mental illness issue and I will candidly admit that I’ve met several investigators during this same time frame who have ended an investigation because they recognized the psychological issues, were able to articulate their facts and training to prosecutors, and come to a reasonable conclusion before an investigation turned into a full blown prosecution.

As always, these blog posts are for discussion only and do not constitute legal advice to any specific person or any specific situation. If you want that, you have to contact The Kokosa Law Firm, P.C. at (518) 907-4694 or mkokosa@albanylawgroup.com to set up an appointment for a free consultation. Also, if you have any similar stories of how mental illness has affected a case for someone you know, please let me know how the case worked out. I’m always trying to learn more and often the stories relayed to me give me perspective on how to work with similar individuals.

Kokosa Law Firm – Experienced Criminal and DWI Defense in the Albany Region

The Order of Protection in New York State

The Grey Area of Mental Illness