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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
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Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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my husband was charged with 4th degree child abuse for threatening

Customer Question

my husband was charged with 4th degree child abuse for threatening my toddler during a tantrum that he would leave her in the trunk of a car (but did not hurt her or close her in it, she was standing in it). He also told her he was going to leave her in the shopping cart if she would not stop screaming and moved his car into the next parking space to frighten her into stopping. She was not harmed in any way. Although this may not have been the best tactic for solving the issue at hand, wasnt it excessive to charge him with child abuse? The store manager called the police and he was handcuffed. I had to bail him with $500, we have a court date in a week and child protective services is calling. We dont know what he should PLEAD IN COURT...what are they going to ask him, what should we be concerned about for this court date??
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 4 years ago.
Chat Conversation Started
FranL :

Hello,

Child abuse in the 4th degree is a misdemeanor punishable by up to a year in prison:

FranL :

A person is guilty of child abuse in the fourth degree if any of the following apply:

(a) The person's omission or reckless act causes physical harm to a child.

(b) The person knowingly or intentionally commits an act that under the circumstances poses an unreasonable risk of harm or injury to a child, regardless of whether physical harm results.

(8) Child abuse in the fourth degree is a misdemeanor punishable by imprisonment for not more than 1 year.

FranL :

In order to find your husband guilty of this offense, the state would have to prove the elements of the offense I have just listed beyond a reasonable doubt. As you can see, no actual injury need have happened for a conviction. And while this does not look like the world's strongest case for the state, he should not try handling this himself. The involvement of CPS on the non-criminal front makes representation ASAP particularly important. You can see the entire Child Abuse statute here, as it defines the terms used in the statute.


Customer:

Hello

Customer:

Hello,

FranL :

Hi

Customer:

Hello, thanks for the answer. Would you say there is more of a possibility he would or wouldnt be charged with this misdemeanor? We have no idea whats going to happen in court or how we should plead...

FranL :

In answer to your original question, now that you have some background, on his first court date your husband should plead NOT GUILTY when asked. That's the only plea that keeps a defendant's rights all open to him. Then, if he has an attorney, his lawyer can take it from there. If he doesn't he can ask the judge for an adjournment to hire himself a criminal lawyer. Or, if he hasn't the funds to do that, he can ask the judge to appoint him a free lawyer.

Customer:

Hello, thanks for the answer. Would you say there is more of a possibility he would or wouldnt be charged with this misdemeanor? We have no idea whats going to happen in court or how we should plead...

Customer:

Hello, thanks for the answer. Would you say there is more of a possibility he would or wouldnt be charged with this misdemeanor? We have no idea whats going to happen in court or how we should plead...

Customer:

Hello, thanks for the answer. Would you say there is more of a possibility he would or wouldnt be charged with this misdemeanor? We have no idea whats going to happen in court or how we should plead...

Customer:

we have completely clean record. does this seem serious enough to get jail time?

Customer:

i figure you've seen cases like this, what is the usual outcome in something of this nature

Customer:

cps is coming over tomorrow and i'm freaking out :(

FranL :

Understood. That's why I said to get a lawyer ASAP.

FranL :

I'm working on the rest of your questions, which I have just about finished answering, but I need the time to type it out. Didn't want you to think I was ignoring you. I know you've got to be scared.

Customer:

thank you for your help. i appreciate any assistance with this. i dont think we can afford a lawyer. would i have to wait until the court date to ask for one from the state or should i be looking into that from now

FranL :

Your husband will be charged with this misdemeanor. It doesn't take much to bring a charge. It just requires probable cause. Probable cause is only a reasonable belief that something unlawful MAY HAVE happened and that your husband MAY HAVE been responsible for it. So, there's enough evidence to file the case in court.

From there, in order to convict him, they'd need a great deal more evidence. They would have to prove the elements of the crime beyond a reasonable doubt. I think they might have trouble doing that.

FranL :

If you can't afford a lawyer and need to have a public defender represent your husband, the court has to appoint one. Public defenders must be ordered by a judge to take a case. So you can't arrange for a free lawyer before the court date.

Customer:

well thats not good news! he's afraid to have jail time for this. sigh*

FranL :

If this is your husband's first offense, I don't think he will have to be worried about jail time. More likely, the state will want him to take some parenting classes so that he finds more appropriate ways of dealing with your child's tantrum.

Customer:

ok thank you for your advice. do u think we would have to pay for those classes or they are through the state

Customer:

and do u think the 500 pd to get him from jail will be given back or i should consider it gone forever?

FranL :

If this is your husband's first offense, I don't think he will have to be worried about jail time. More likely, the state will want him to take some parenting classes so that he finds more appropriate ways of dealing with your child's tantrum.

Customer:

oops, your last answer popped up again

FranL :

Now that bail has been posted and he's out of jail, as long as he makes his required court appearances and does what the court tells him he should do, whatever that is, he will be able to fight this case while at liberty.

The classes would be part of a plea bargain offer if he wanted one. It's possible that the state would bargain this down to something other than a child abuse offense and classes would be part of that package. Or, he could decide to fight the case and go to trial. If he took a plea involving classes as part of the sentence, the state would pick the program and there would probably be a fee for the program that he would have to pay.

FranL :

The $500 bail will be returned to the surety (you, if you posted it) at the conclusion of the case unless he skips town and warrants, which I'm sure he's not going to do.

Customer:

Well thank you, XXXXX XXXXX been a great help. just one final reply i have...do u think this will be more than one court date over time? and do u think cps will keep checkin in on us?

FranL :

There will be more than one court date. If he fights the case, he'll see a judge approximately once a month, and a trial could take a long time to come about -- he could have to keep turning up for a year. If he wants to resolve the case with some kind of offer, he could probably dispose of it in 3 or 4 dates. He won't even have a lawyer until the second date, and he should not consider any offer until he's spoken to a lawyer.

Customer:

oh geez, 3 or 4 dates! This is going to break his heart, he loves her so much. This is so ridiculous :( Thanks for everything!

Customer:

have a good night

FranL :

As far as CPS is concerned, they will visit and likely see that there's no reason for them to believe that your child was being abused. It's very tough to deal with a tantrum, especially in public, where you're apt to be seen as wrong no matter what you do. But if there's nothing to indicate that this sort of behavior occurs on a regular basis, and your husband was simply at his wit's end, CPS may not take any action that you would have to worry about and may see the incident for what it is.

FranL :

___________

If I've helped, please click the green Accept button so I can get credit for my work.

Live Chat will close but you can continue to post follow-ups on this thread if you need clarification.




Customer:

thank you Fran!

Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 17350
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and 5 other Criminal Law Specialists are ready to help you
Customer: replied 4 years ago.
Just wanted to write and say we had the first court date today and the Judge informed us the charges were changed from 4th degree child abuse to 2nd agree because of the Prosecuting Attorney's review of the case. It is no longer a misdemeanor, it has become a felony with a possibility of up to 4 yrs in jail. Our next court date is in 2 weeks. I'm curious what the odds are to such a charge sticking without evidence and no physical injury inflicted upon the child.
Expert:  Zoey_ JD replied 4 years ago.
Hi,

I'm sorry to hear this. Did the prosecutor make a bail application to try to get your husband put in jail? And was that denied?
Customer: replied 4 years ago.

I'm not really sure b/c we were both so shocked. The judge said something about bail was $500 and that the $500 we already posted when he went to jail would take care of that so no more $ was necessary. I dont know if the prosecutor is attempting to put him in jail or if he is trying to up the charge so the judge wouldnt dismiss the case altogether. Do you have any ideas on why this might have happened?

 

In any case this charge is obviously much more serious and we are really frightened. The judge said that the court appointed attorney might not be able to meet with us until the moment of the next court date, so we are looking into paying for services. Obviously it is now necessary to get an attorney.

Expert:  Zoey_ JD replied 4 years ago.
Hi,

Certain kinds of cases are prosecuted more strongly as a matter of public policy. Sex offenses, for example, underaged drinking, DUIs, domestic violence, and anything having to do with children are all political hot potatoes right now. No judge, and no DA is going to want to look particularly soft on such matter, except between the lines. That the judge didn't set a higher bail and that the prosecutor didn't make enough noise about this for you to even remember it is a good sign. $500 is very low felony bail. The court understands that your husband is likely not a risk to the community and does not belong in jail while he fights this case. That means that the odds of his still being able to dispose of this in some way without jail are still very high.

Second degree child abuse is found in the statute I listed for you originally. The provisions don't require actual harm to befall the child, nor do they require physical injury, though they are slightly different and have that catch-all element about "cruelty."

I can't tell you not to worry. However, everything I said about the case intially still goes. There is no mandatory minimum sentence here, so by prosecuting the case as a felony the prosecutor can still make your husband a non-jail offer but the court would retain jurisdiction over the matter for longer if he takes that offer than if it had been a misdemeanor. In that way, the prosecutor might feel he was better safeguarding the child.

By all means get a lawyer. We discussed that when it was still a misdemeanor, just because of the nature of the case. If you are forced economically to go with a public defender, at this stage of the case -- your husband has only just been arraigned -- the lawyer isn't going to need much time to catch up on what's going on. Public defenders don't really have desk jobs and with some exception (before trials and hearings for example) see their clients mostly in the courthouse on the day they are to appear before the judge. But that doesn't mean they won't speak to your husband at length and address all of his concerns and questions. If you can afford a private attorney, that's what you should do, and you would probably be able to schedule an office visit which might relieve some of your anxiety.

___________

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your State for specific legal advice.

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