New York Family Law Blog
This case presents the Court with a repetitive issue confronting domestic violence parts in the courts. The complaining witness/victim, of domestic violence now wishes to recant their testimony. The recantations are the product of many imperatives, not all of which serve the interests of the victim or justice.
A New York Family Lawyer said that, the defense counsel moves post-conviction and post-sentencing for the above relief on three separate dockets after the defendant in a negotiated plea was convicted and sentenced to forty-five (45) days in jail, three (3) years of probation and a “stay away” order of protection in favor of complainant. More specifically, the defendant in this case pled guilty to one count of Penal law §120.45(2), stalking in the fourth degree, another count of Penal law §215.50(3), criminal contempt in the second degree while the count of Penal law §240.30(1), aggravated harassment in the second degree was dismissed in satisfaction.
A New York Custody Lawyer said the issue in this case is whether defendant’s motion modifying the condition of probation as to participation in continued therapy and treatment for domestic violence and for an order vacating and/or modifying the herein order of protection should be granted.
This Court will first address the issue for the modification of a condition of probation. Specifically, the defendant was directed to attend a batterer intervention treatment program. Defense counsel offers no support for this relief, no authority and no change of circumstance other than the complaining witness in her affidavit making a conclusory statement that she request the defendant not be required to continue the counseling because she believes he does not need it. Under the circumstances presented on the instant motion, the Court will not modify the condition of probation requiring therapy and treatment for domestic violence. This Court finds such therapy an appropriate part of the sentence and/or condition of probation. Therefore, this branch of the motion is denied.
A Queens Family Lawyer said with regard to defendant’s motion for an order vacating and/or modifying the order of protection. Defendant’s counsel, in support of the motion, presents the affidavit of the complainant. Defendant’s attorney again cites no cases in support of such a vacatur or modification of the order of protection. “We recognize that the issuance of an order of protection incident to a criminal proceeding is an ameliorative measure intended to safeguard the rights of victims and witnesses both prior to and after conviction-it is not part of the sentence imposed'”. The Hull court permitted modification of the order of protection in regard to defendant’s biological children, who were not the subject of his conviction for downloading pornographic videos of children. The Hull court reasoned that since the order of protection was imposed sua sponte, not requested by the People, and was not part of the negotiated plea, it was in the interest of justice to modify the order of protection as to defendant’s 15 and 16 year old biological children so that the order expired on their 18th birthday.
A Queens Custody Lawyer said in opposing this branch of the motion, the People present a different picture of the relationship between the defendant and the complainant. The People affirm in opposition that “it would be error to overlook the amount of time this victim has spent trying to get away from a relentless pursuer only to allow them to date again.” Further, the People affirm in opposition that the complainant was in fear of the defendant when she originally met with the People and requested a stay away order of protection, and this stay away order of protection was part of the negotiated plea. Finally, the People affirm in opposition that “there are no new facts which would lead the people to believe that this relationship would be any less toxic or that the defendant would not resume his criminal ways should the victim decide to break up with the defendant. There is nothing here which the People, the Court, and the Defense were not aware of at the time of plea and sentence.”
The Court will not exercise its discretion in the interest of justice to modify and/or vacate the order of protection. The Court notes that complainant’s attempt to join in defendant’s application to vacate and/or modify the herein order of protection through her affidavit appears to fit within what is called the “honeymoon phase” of the “cycle of violence”.
Domestic Violence has three phases that comprise the “cycle of violence.” (1) The tension building phase, (2) the violence phase and (3) the honeymoon phase. During the first two phases the victim is reduced to a state of fear and anxiety due to impending or actual violence. In the honeymoon phase, the abuser acts with contrition, begs for forgiveness and makes declarations of love. During the honeymoon phase, the victim is seduced into believing that the abuse will cease and that the family will remain intact. This cycle repeats itself over many years. During the honeymoon phase, victims of domestic abuse often recant their reports of abuse and refuse to testify. During this phase, the batterer has, often in violation of an order of protection, repeatedly contacted the victim, professing apologies and declarations of love to trick the victim into believing that the violence will end. During this “reconciliation” the batterer is able to convince the victim that recantation would solve their problems.
For all the foregoing reasons, the court held that the defendant’s motion for an order, pursuant to CPL §410.20(1), modifying the condition of probation as to participation in continued therapy and treatment for domestic violence and for an order vacating and/or modifying the herein order of protection of this Court dated February 3, 2010, is denied in its entirety.
An order of protection is a remedy to prevent further abuse or domestic violence against an individual. Nassau Domestic Violence Attorney or Nassau Order of Protection Attorney at Stephen Bilkis and Associates can protect you. Call us and we will make sure that our Nassau Criminal Attorney can handle your case properly.