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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16333
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hello. My husband has been arrested for Domestic Violence and

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Hello. My husband has been arrested for Domestic Violence and charged with D Felony. How long do those cases usually last? I am now under order of protection as well as our baby. I need to understand how to arrange my life as ADA does not give me clarity on how long it can last.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 1 year ago.
Hi,

This sounds like New York. If not, what state did this occur in? I assume that you are the complainant. What do you want as the outcome for the case. That is, are you looking to have him prosecuted, or would you prefer to have him home and drop the case?

Please use the reply tab below to answer my questions, and then I can answer yours.
Customer: replied 1 year ago.

It is New York indeed. I would like him to avoid any jail time or any serious prosecution. as far as home goes - I do want him home but for that I need to understand where his head is at. whether he acknowledges that what he has done is wrong. he plaid not guilty but I think it might of been his lawyer's guidance. Also I have not spoken to him ever since the incident because of the order of protection. Let me know what other info you need

Expert:  Zoey_ JD replied 1 year ago.
Hi Jacustomer,

All criminal defendants start off by pleading not guilty. That's because our system allows them to. Each is innocent until proven guilty beyond a reasonable doubt under US law. So even a defendant who wants to take a plea, starts off not guilty and doesn't change his plea to guilty until he gets an offer from the DA that he likes and a sentence he's willing to live with.

How long this case can take depends on a number of things. Presently, it's a felony, and I do not know whether you sustained any serious injuries but basically, the uglier the case/more serious the injuries, the more heavily the DA will be about getting a felony conviction. But as a general rule, unless this is not his first DV offense the law allows for probation even on a felony. So getting him home is the easy part. Getting him home without a felony record is another story.

His lawyer will be looking to get this case reduced to a misdemeanor, even a violation of criminal harassment with a permanent order of protection that the court can modify to allow him home but not to threaten, annoy or harrass you. The DA will be interested in your thoughts about this and what you want, but it's his/her case now and not yours, so the state doesn't have to prosecute the way you'd most like.

But if you haven't done so yet, you'll be required to sit down and talk to the DA who can assess the gravity of the case and confer with you about how it may be handled. If you don't want him to go to jail, or you don't want to jeopardize his job by having him plead to a felony, you can tell that to the DA. If you'll be happy enough with his pleading to a violation (less than a crime) so long as he can take a batterer's class and learn ow to manage his anger issues and you have a modified order of protection, let the DA know. On the other hand, if he seriously hurt you and you want him to go to jail or to get indicted and serve a five year term of felony probation, you can tell that to the DA also

The ADA does not have to do what you say, but you still are the witness he needs to get a conviction. So, he will listen and consider what you want.

How long will it take? Well, if you and the DA have an offer you are happy with and it is conveyed and your husband is happy with it too, this case can end fairly quickly. On the other hand if your husband and his lawyer think that the offer is unfair and reject it, the case can drag on for months and months. If it's going to trial, it can drag on for at least a year.

Hope this helps.
Customer: replied 1 year ago.

I talked to DA and told her exactly as you say "you'll be happy enough with his pleading to a violation (less than a crime) so long as he can take a batterer's class and learn ow to manage his anger issues and you have a modified order of protection". He tried to smother me so faces strangulation charges. However she red to me his statement after and it shocked me as he stated none of it happened and its my imagination, he was just trying to leave. This made me concerned. I do not know where his head is at. And I dont want to find out by surprise. I talked to DA. She said she would call his lawyer. Does it mean the only thing I can do is sit and wait? How often do these cases end in divorce? There is a baby involved, I am working and have quite a visible job and need to make arrangements. Also in case he returns home as I don't want him to serve jail but I see that life together is impossible will I still be able to refer to his arrest in the Divorce Proceedings?

Expert:  Zoey_ JD replied 1 year ago.
Hi,

I can't tell you how often these cases end in divorce, because once the criminal court matter is solved the defendant ceases to become my client. Most times, they don't come back and tell us what happened from there, but it's a safe bet that some couples are committed and forgiving enough to work to make the marriage last and others can't push aside their anger and betrayal and end up in divorce court.

Yes, in divorce court, if you get there, you can certainly let the judge know that he committed an act of domestic violence and that you had him arrested.

You can't call your husband. You can call his lawyer, even though it will anger the DA. There's nothing illegal about it, so long as you understand that anything you say to the lawyer can be used against you at trial if the case goes that far. That's why unless you are calling to ask him to help you to get the whole thing dropped -- which is not what I'm hearing -- it's better to let the DA do it. So all you can do is wait right now.

Customer: replied 1 year ago.

What if I were to call him - than the case could be dropped? The point is - I want this thing to end as soon as possible and I dont want my husband to be convicted of felony. I do think that counseling is what he needs though. What is best course of action in this case?

Expert:  Zoey_ JD replied 1 year ago.
Hi,

Only the DA can drop this case. As a general rule DAs will not immediately drop domestic violence charges. They generally remind the complainant that the case no longer belongs to her but to the state and only the DA can decide whether to drop or go forward. However, while the DA technically can go forward without your cooperation, unless there are witnesses, medical records or other evidence, the state cannot generally win its case without the cooperation of the star witness -- you. And he's probably not going to be willing to invest a great deal of state funds in a trial that he'd be unlikely to win.

If you tell the DA you'd like to drop you can expect the DA to let you know in no uncertain terms that he can go forward anyway and compel you to testify. He will likely tell you, in fact, that this is just what he will do. The charges here are serious and, particularly if there are any injuries, you may not be able to say anything to change his mind.

He won't say this to you, but if you don't change your mind and keep insisting on dropping, once enough time has passed that he's sure that your husband offers no real risk to your safety and didn't force you to try to drop, he will be less insistent on keeping the case alive.. So long as you don't change your mind, you'll probably start seeing some results and sooner rather than later, once you involve your husband's lawyer.

Note that his lawyer wants what's best for his client and not what's best for you. Dropping the case outright, if you can get it done, is what's best for his client, and he will help you do that. But don't expect him to help you give him a criminal record, if he's got a client who believes he's done nothing wrong. And if your husband insists that he needs no counseling, don't expect the lawyer to try to make him agree to it. That's another good reason to let the DA call the lawyer, since your mind is not clear on where your husband's head is, and you don't want to put yourself at risk.

But at whatever point, should this occur, that you decide you want to drop this altogether and the DA won't let you, then let his lawyer know that you have been trying to drop charges but that the DA won't allow it. Ask for his help. Under these circumstances, he will be happy to extend it because the the lawyer wants what you want -- for him to be able to walk away from these charges. Usually, when the complainant starts holding hands with the defense attorney and double-teams the prosecution, the judge eventually steps in and tells the state to consider dropping charges rather than continuing to waste the court's time on a case that looks like it's going nowhere. It may not always result in an outright dismissal, but if not it will be something very favorable to the defendant.

Customer: replied 1 year ago.

First of all - thank you for being very helpful and picking up my questions quickly. What my end goal is - is to:


- make sure my husband understands I dont wish him harm


- try to help him to avoid serious charges


- direct him into counceling


- understand if he has any remourse (do you think its possible his statement was guided by his lawyer?)


-see my husband as soon as possible


- try to work on our marriage, esp since the baby involved


- end this whole thing as soon as possible as it is very stressful and distracting.


- in case my husband wont be able to change - have protection and case in divorce.


 


Given that - what would you suggest as the best course of action? I just want to make sure I am clear and do not misinterpret anything.


Thank you!


 

Expert:  Zoey_ JD replied 1 year ago.
Hi,

I think your goals are pretty clear. Make sure the ADA knows this and that he contacts your husband's lawyer. I wouldn't do contact the lawyer myself if I were you. It's possible that your husband will be receptive to the above, in which case the DA can convey all this and you'll get it. But if your husband's not going to be receptive, the lawyer will be of no help to you at all and could hurt the People's case.

No, I don't think his statement was guided by his lawyer. We take statements from our clients but we don't put the words in their mouths. I think his statement reflected what he said, with the understanding that he's hurt and upset too and it may not be what he meant.
Customer: replied 1 year ago.

Thank you! Just to close this off - after DA contacts him - do I just sit back and wait? There is nothing I can do after talking to DA which I did? I talked to them a week ago and its just dragging...

Expert:  Zoey_ JD replied 1 year ago.
Hi,

You're the complainant. You can keep bugging the DA. If the DA won't make the call and get back to you, contact the DA's supervisor. But don't call the defense lawyer until you know 1) what you want and 2) what the DA will agree to. Otherwise, if this is a case that has to get litigated, you could end up hurting your case.


Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16333
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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