Typical Negotiations in New York City Domestic Violence Prosecutions
If the Government isn’t going to be persuaded to dismiss a domestic violence case outright, and they rarely are convinced to dismiss a domestic violence case outright, what are the alternatives for someone accused of domestic violence in New York City?
Of course, first and foremost, is the option that everyone knows about: trial. Every person accused of a crime is entitled to a trial if that is his or her desire. But for the time being, let us suppose the time, expense, and risk involved in taking a case to trial are not what you are looking for. Then what can you do?
Well your lawyer can negotiate a settlement in your domestic violence case, just like any other criminal case. The next question is well what sort of a settlement are you talking about.
Well your lawyer can negotiate a settlement in your domestic violence case, just like any other criminal case. The next question is well what sort of a settlement are you talking about.
Since perhaps more than in any other type of criminal case, with the possible exception of drug cases in more recent times, domestic violence prosecution involves the greatest amount of social engineering. Negotiated settlements of domestic violence cases will come with an ever increasing number of conditions related to requirements for couples counseling, substance abuse counseling, anger management counseling, parenting skills counseling, and all manner of other forms of social work with a view toward attacking the underlying cause of the domestic violence incident itself. In most of the other areas of criminal prosecution (with the possible exception these days of drug possession cases) the criminal justice system confines itself primarily to issues of retribution as opposed to social work.
Therefore, while non-criminal resolutions of domestic violence cases can, and are often negotiated, they will almost always contain one or more components of counseling or therapy of some sort. This can work itself out in a couple of different ways. A more and more frequent request of the prosecutors is for what is called a "conditional plea" in which the negotiated settlement involves an up front plea of guilty to a misdemeanor, which is used as a threat to encourage the defendant to complete some sort of counseling. If the counseling is completed, then, upon showing proof, the Court vacates the misdemeanor plea and allows the defendant to enter a plea instead to a non criminal offense such as disorderly conduct, or more often, harassment. If the counseling is not completed satisfactorily, then the criminal conviction stands and the defendant faces exposure to a jail sentence.
Another possibility is that the non criminal offense might be offered up front on the condition that the defendant complete the chosen counseling program.
It is also possible, although fairly rare these days, for the prosecutors to permit an Adjournment in Contemplation of Dismissal (also called ACD) as a resolution of a domestic violence case upon completion of some sort of counseling program. Typically the ACD is in play as a possibility in situations in which the Government is concerned that it may not be in a position ever to prevail on the case because of an uncooperative complaining witness AND no other way around the uncooperative complaining witness.
The counseling programs vary in their length and level of commitment required. Some, if not most, require that people pay a fee. Programs can be six, twelve, or even 52 weeks long. When people negotiate resolutions that involve participation in a program, this will require periodic appearances in Court in order to demostrate satisfactory progress.
The good news is that many people ultimately find these programs helpful, even if a bit inconvenient or expensive. Also, at the conclusion of such programs, the good news is often that there will be a non-criminal resolution of the case. That means that there will be no criminal record.
Of course every case is different and the sorts of settlements that might be in play in any case will always depend on the individual details of each case. Clearly a person with a criminal history, especially a criminal history related to domestic violence, is not likely to fare so well in negotiations on a new case. The threshold of tolerance of the Government for repeat offenders is never terribly high to begin with, but in the context of domestic violence these days, that threshold could safely be said to be fairly low.
Almost every resolution of a domestic violence case will also require one form or another of an order of protection. Our Courts issue Full Orders of Protection virtually as a matter of course in nearly every single case where domestic violence is charged. The Prosecution is well aware that a full order of protection is often considered to be an enormous inconvenience for both the defendant and complaining witness and something that people are often going to want to change as soon as possible. Therefore, the existence of the Order of Protection becomes extremely powerful bargaining leverage in negotiations over domestic violence cases.
And the leverage is frequently used as follows: In cases where the defendant and the complainant are eager to get back to together, the Government will put a Limited Order of Protection on the negotiating table in order to encourage the defendant to resolve the case. A limited order of protection allows the parties to be together, but simply orders the defendant not to commit any offense at all to the complaining witness. Key, however, is that the Limited Order of Protection allows the parties to be together again. And there is the leverage.
The government will sometimes offer to change the full order of protection to the limitted order of protection in exchange for the defendant's willingness to resolve the case by some sort of plea (perhaps to a lesser charge) and the defendant's willingness to participate in some sort of counseling program.
In some situations, the Government will agree to make the switch to a limited order of protection right away, as soon as the bargain is made in Court. In other cases the Government will insist that the defendant actually finish the program (perhaps 6 to 12 weeks in the future) before they will agree to a limited order of protection. In this case, the defendant will be required to stay completely away from the complaining witness until he completes the program.
And so in this way, you can see some of the variables involved in negotiations with the Government over domestic violence cases. Of course, it should be remembered that no negotiations at all are required. First, and foremost, if a person believes he or she is being wrongly prosecuted, the possibility of trial is always available.
BY: DON MURRAY, Partner in the New York Criminal Defense Law Firm Shalley and Murray