The Domestic Violence Arraignment in New York

From Arrest to the Courtroom

After a domestic arrest, the accused is taken to the precinct, fingerprinted and photographed, and then moved to central booking at the courthouse. In New York City the arraignment generally takes place within about 24 hours of the arrest, though it can run longer on busy nights and weekends.

In many other misdemeanor cases police release the person from the precinct with a desk appearance ticket. That is usually not what happens here. CPL § 150.20 carves out an exception for crimes alleged against a member of the same family or household, and police departments use it. Combined with the mandatory arrest rule, the practical result is that a person accused of a domestic offense should expect to be held until a judge sees the case.

While the accused waits, the District Attorney's domestic violence bureau interviews the complainant and the arresting officer and drafts the complaint. The prosecutor also decides what to ask for on release and on the order of protection. Family members who want to help should use this time to retain counsel and to gather the information listed below. They should not contact the complainant on the accused's behalf.

Release or Bail

Under New York's bail statute, a judge may set monetary bail only on a "qualifying offense." Most misdemeanor domestic charges, including assault in the third degree, are not qualifying offenses. On those charges the court must release the accused on their own recognizance or under non-monetary conditions such as supervised release.

There are exceptions that come up often in domestic cases:

• Violent felony offenses. Assault in the second degree, strangulation in the second or first degree, and other violent felonies qualify for bail.
• Criminal obstruction of breathing or blood circulation. PL § 121.11 is a misdemeanor, but it qualifies for bail when it is alleged against a member of the same family or household.
• Criminal contempt. Charges under PL § 215.50(3), PL § 215.51(b), (c), or (d), and PL § 215.52 qualify when the underlying allegation is that the accused violated an order of protection issued for a member of the same family or household.

Where bail is possible, the judge considers the person's ties to the community, record, history of returning to court, and, in a domestic case, any history of violating orders of protection and any access to firearms. A concrete release plan answers most of those concerns before the prosecutor raises them.

The Temporary Order of Protection

In a family-offense case the court issues a temporary order of protection under CPL § 530.12 at the arraignment. The prosecutor nearly always asks for a full stay-away order, and that is what most judges sign. A full order prohibits all contact with the complainant, whether in person, by phone, by text, through social media, or through other people. It also requires the accused to stay away from the complainant's home, workplace, and school.

If the two people live together, the order excludes the accused from the residence. It does not matter whose name is on the lease or the deed. The accused leaves court with no right to return home, and going back, even at the complainant's invitation, is a new crime. We explain the types of orders and how long they last in Orders of Protection in Criminal Court.

What We Ask For

• A limited order. A limited order allows contact and shared residence but forbids any assault, harassment, threats, or other offenses against the protected person. Judges grant it more readily where the allegations are minor, there is no prior history, and the complainant has told the prosecutor that they want contact.
• A carve-out for Family Court. Where the parties have children, we ask that the order be made "subject to Family Court orders" of custody and visitation, so that a later Family Court order can permit parenting time and the communication it requires.
• A police escort for belongings. The court can authorize a one-time visit to the residence, accompanied by police, to collect clothing, medication, work tools, and documents. Without that provision, returning for belongings is a violation.
• A hearing. In Matter of Crawford v. Ally (1st Dept 2021), the Appellate Division held that when a temporary order of protection deprives the accused of a significant liberty or property interest, such as access to their home, the criminal court must hold a prompt evidentiary hearing if the defense requests one. We make that request on the record where exclusion from the home is at stake.

What to Have Ready

Family members and friends can make a real difference before the case is called. We ask them to bring or confirm the following:

• An alternative address. The name, address, and phone number of a relative or friend with whom the accused can stay. This is the single most useful piece of information at a domestic arraignment.
• People in the courtroom. Family members who appear in court show the judge that the accused has support and a reason to return.
• Employment and school information. Employer name, length of employment, and work schedule, or proof of enrollment.
• Information about firearms. Whether the accused owns or has access to any firearm, and whether they hold a license. The court may order surrender, and we need to know before the judge asks. See Domestic Violence Charges and Gun Rights.

What Not to Do

• Do not make statements. Not to the arresting officer, not to a detective, not to the prosecutor, and not to anyone in the cells. Phone calls from custody are recorded. See what to do if you are arrested in New York.
• Do not contact the complainant. Once the order is issued, a text message, a "like" on social media, or a message passed through a relative can each be charged as criminal contempt. This is true even if the complainant reaches out first. The order binds the accused, not the protected person.
• Do not ask anyone to persuade the complainant. Attempts to get the complainant to withdraw the complaint can lead to new charges. Any communication with the complainant about the case should come from defense counsel or a defense investigator.

After the Arraignment

The case is adjourned to a domestic violence part. On a misdemeanor, the next question is whether the People can convert the complaint into an information. A complaint based on what the complainant told the officer is hearsay, and it generally must be corroborated by a supporting deposition signed by the complainant. Until that happens the People cannot validly state that they are ready for trial, and the speedy trial clock under CPL § 30.30 runs against them. On a class A misdemeanor the People have 90 days of chargeable time. This is why the complainant's cooperation matters so much in the early weeks, as we explain in Can the Complainant Drop the Charges?

On a felony complaint, the People must present the case to a grand jury, and an accused who is held in custody is entitled to release if the People do not act within the time set by CPL § 180.80. In either kind of case, the People must also provide discovery under CPL Article 245, including the 911 recording, body-worn camera footage, and the Domestic Incident Report. The temporary order of protection is extended at each court date until the case ends.

Has Someone Just Been Arrested?

If a family member is in custody on a domestic violence charge and waiting to see a judge, call us now at 212-233-1233 or email [email protected]. The hours before the arraignment are when a release plan and an argument on the order of protection are put together.