By Penelope D. Clute, Former Clinton County District Attorney
New York law dramatically changed when the
legislature amended the Criminal Procedure Law to require the police to
make arrests in domestic violence cases when there was probable cause to
do so, regardless of the wishes of the victim. Where the evidence
establishes probable cause to believe that a misdemeanor or felony was
committed, the police are prohibited from even asking the victim about
whether to arrest.
Since passage of this "mandatory arrest"
law, the emphasis has been on police training, to change past practice
of putting the arrest decision in the hands of the victim. The
effectiveness of this law, and the efforts to stop domestic violence,
can be greatly enhanced by thoughtful use of the Penal Law.
To simply say that we now have a "mandatory
arrest" law begs that question of "arresting for what?"
What is the appropriate charge to file? Police and prosecutors are used
to struggling with the definition of "physical injury"
required for assault, and concluding that the violent attack can only be
charged as "Harassment," since the injuries do not meet the
Penal Law definition.
Are there other answers? Yes. For example, what looks
like Harassment (Penal Law 240.26, subd.1) can be charged as Attempted
Assault (Penal Law 110.00 and 120.00). Where there is the intent
to injure and conduct trying to do so, but fortunately the victim is not
injured sufficiently to fit the Penal Law definition in section 10.00,
then the crime is Attempted Assault 3rd. When charging
the B Misdemeanor of Attempted Assaulted 3rd, the
police have the power to make the arrest, and are not dependent upon the
victim’s willingness, as is the case for a Violation that is not
committed in the presence of the police. If the defendant tried very
hard to cause injury, or used a dangerous instrument or weapon, it may
be the Felony of Attempted Assault 2nd.
If the defendant used an object to threaten the
victim (Menacing – Penal Law 120.14, subd. 1), that object
probably qualifies as a "dangerous instrument" under Penal Law
10.00. If so, the defendant can be charged with Criminal Possession
of a Weapon 4th (Penal Law 265.01, subd. 2). If
the defendant has a prior conviction for any crime, even DWI,
then the weapons charge is elevated to the Class D Felony of Criminal
Possession of a Weapon 3rd (Penal Law 265.,02, subd. 1).
Thus, a misdemeanor Attempted Assault or Menacing, or perhaps
even an Harassment, can be coupled with a felony weapons charge. If the
defendant’s prior crime is a felony, now he is a second felony
offender facing mandatory state prison.
Another felony which may be present in what at first
looks like an Harassment, Attempted Assault or Criminal Mischief
situation is Burglary 2nd (Penal Law 140.25. subd. 2).
This Class C Violent Felony can be charged when the defendant unlawfully
entered the victim’s home with the intent to threaten or assault her
or to damage her property. Furthermore, the entry is unlawful if it is
in violation of a "stay away" Order of Protection. If the
defendant also causes physical injury or threatens the use of a
dangerous instrument, while he is unlawfully in the dwelling, then it is
Burglary 1st (Penal Law 140.30, subds. 2 or 3), a
Class B Violent Felony. Criminal Contempt 2nd, 1st
or Aggravated Criminal Contempt (Penal Law sections 215.50,
215.51, and 215.52) may be chargeable, as well.
Since domestic violence is most often a
"continuing offense," not simply the single instance which you
are now charging, ask the victim what led up to this particular violence
and whether anything like this happened before. The more you learn about
the relationship between the victim and the defendant, the more crimes
you are likely to find.
Menacing 2nd (Penal Law 120.14 subd.
2) is one of the few crimes defined as a "continuing offense"
allowing a single charge to encompass numerous acts committed by the
defendant over a period of time. Endangering the Welfare of a Child
(Penal Law 260.10) is also a continuing offense. Although these crimes
are only misdemeanors, charging them will allow the victim to testify
about the nature of the relationship, including non-criminal bad acts,
so the jury will better understand why she stayed, complied with his
demands, etc. It also avoids the uncertainty of trying to admit evidence
of uncharged crimes through the Molineux Rule.
A rarely used but very appropriate crime in many
domestic violence cases is Coercion (Penal Law 135.60 and
135.65). Coercion should be charged when the defendant gets the
victim to do what he wants, like staying with him, having sex with him
or keeps her from doing what he doesn’t want, like calling the police
– by instilling in her a fear of physical injury or damage to property
if she does not comply.
As you listen to victims talk about what has gone on,
keep this crime in mind and you will realize that it very accurately
reflects what happens in many domestic violence cases. Police and
prosecutors are used to dealing with specific instances at a particular
date and time. Yet, since the dynamics of domestic violence are those of
exercising power over another, the particular incident may appear not to
fit traditional criminal definitions – until you look at Coercion.
As an added attraction, Coercion is unique in the New York Penal
Law in that the felony definition (135.65, subd. 1) is identical to the
misdemeanor (135.60 subd. 1 and 2) when fear of physical injury or
property damage is instilled.
So many times we have been frustrated in seeing
violent attacks that could not meet the "physical injury"
standard to charge Assault. If we open our minds to other crimes that
fit a defendant’s behavior, we can find many effective means to do