Can the Complainant Drop Domestic Violence Charges in New York?

Why Prosecutors Do Not Dismiss on Request

District Attorney's offices in New York City have specialized domestic violence bureaus or units, and they work from the assumption that complainants often recant because of pressure, fear, money, or reconciliation, and not because the report was false. Their policies discourage dismissing a case simply because the complainant asks. The mandatory arrest law reflects the same thinking at the police level. The complainant's wishes are heard, and they matter more in some cases than others, but they are one factor among several.

Where the Complainant's Cooperation Does Matter

Most domestic violence arrests are charged as misdemeanors, and a misdemeanor case begins with a complaint that a police officer signs based on what the complainant said. That is hearsay. Unless the accused waives the right, the People cannot prosecute on a hearsay complaint. They must convert it into an information whose factual allegations are non-hearsay (CPL §§ 100.40, 170.65). The ordinary way to do that is a supporting deposition signed by the complainant under penalty of perjury.

The speedy trial statute runs while the People wait. Under CPL § 30.30, the People must be ready for trial within 90 days on a class A misdemeanor, 60 days on a class B misdemeanor, and six months on a felony, not counting excludable time. They cannot validly declare readiness on an unconverted complaint, and readiness is also tied to their discovery obligations under CPL Article 245. If the chargeable time runs out, the case is dismissed on the defense's motion.

So a complainant who declines to sign does not end the case, but the refusal often sets in motion the events that do. Prosecutors know this, which is why they work to obtain the signature early, and why they look for ways to convert without it.

Prosecuting Without the Complainant

Domestic violence bureaus are trained in what they call evidence-based prosecution. The aim is to prove the case with everything except the complainant's testimony:

• the 911 recording;
• body-worn camera footage of the scene and of the complainant's first statements;
• photographs of injuries and of the apartment;
• medical records, including what the complainant told the treating nurse or doctor;
• statements by the accused to the police, in text messages, or on recorded jail calls;
• neighbors, relatives, or children who saw or heard the incident.

The complainant's out-of-court statements are hearsay. They are admissible only through an exception, most often the excited utterance, the present sense impression, or statements made for purposes of medical diagnosis and treatment.

The Confrontation Clause Limit

A hearsay exception is not enough by itself. In Crawford v. Washington (2004), the Supreme Court held that the Sixth Amendment bars "testimonial" statements of a witness who does not appear at trial unless the accused had a prior opportunity to cross-examine. In Davis v. Washington and its companion case Hammon v. Indiana (2006), the Court drew the line for domestic violence cases. Statements made to meet an ongoing emergency, such as the opening of a 911 call, are nontestimonial. Statements describing past events to an officer once the scene is secure are testimonial and are excluded. Michigan v. Bryant (2011) added that courts look at the primary purpose of the exchange from the perspective of both the speaker and the questioner.

In practice we go through each recording minute by minute. The first part of a 911 call may be admissible while the later part is not. Body-worn camera footage often begins in an emergency and turns into an interview. Where the line falls can decide whether the People have a case at all.

Forfeiture by Wrongdoing

There is one major exception. If the accused caused the witness's absence through threats, pressure, or persuasion, the accused forfeits both the hearsay objection and the confrontation right, and the complainant's earlier statements, including grand jury testimony, may be read to the jury. Under People v. Geraci (1995), the People must prove the misconduct by clear and convincing evidence at what is called a Sirois hearing. Giles v. California (2008) requires that the accused acted with the purpose of keeping the witness from testifying.

The usual proof is the accused's own voice. Calls from New York City jails, other than properly registered attorney calls, are recorded, and prosecutors in domestic violence cases listen to them. A call asking the complainant not to come to court can rescue a prosecution that was about to fail.

What the Complainant Can Do

• Speak with the assigned prosecutor and state their position on the case and on the order of protection.
• Retain their own lawyer. This is the most important step. A complainant who signed a sworn statement and now says it was untrue has potential exposure for making a false written statement (PL § 210.45) or falsely reporting an incident (PL § 240.50), and has Fifth Amendment rights to consider. Defense counsel represents the accused and cannot advise the complainant. We do not try to.
• Sign a waiver of prosecution or an affidavit stating that they do not wish to proceed. It does not bind the District Attorney, but it becomes part of the file and may have to be disclosed to the defense.
• Ask the court for a limited order of protection so that contact is lawful. See Orders of Protection in Criminal Court.

The People can subpoena a reluctant witness, and the law allows a material witness order in some cases. Both are uncommon in misdemeanor prosecutions.

What the Accused Must Not Do

Do not contact the complainant about the case, and do not ask anyone else to. With a full order of protection in place, any contact is criminal contempt. Asking a witness not to testify or to change their account can be charged as tampering with a witness (PL §§ 215.10 to 215.13) or intimidating a witness (PL § 215.15 and following). It can also open the door to forfeiture, as described above. Any communication with the complainant or the complainant's lawyer should come from defense counsel or a defense investigator.

How These Cases Usually End

When the complainant does not cooperate and the remaining evidence is thin, the realistic outcomes are a dismissal on speedy trial grounds, an adjournment in contemplation of dismissal, or a plea to a non-criminal violation such as harassment in the second degree or disorderly conduct. When the People have a strong 911 call, visible injuries, or an admission, they may go forward regardless, and the case has to be prepared for trial. Charges involving strangulation or a prior history are the ones prosecutors are least likely to let go.

The Complainant Wants the Case Dropped. Now What?

There is a right way and a wrong way to bring that to the prosecutor's attention. Call us at 212-233-1233 or email [email protected] before anyone contacts anyone.