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Law Pro
Law Pro, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 23979
Experience:  20 years trial experience in defense of criminal cases
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My wife and I had a heated argument back in Aug. She took all

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My wife and I had a heated argument back in Aug. She took all the pictures off on the wall started to rip them in half. I was trying to prevent her tearing off the pictures and accidentally, my elbow hit the left side of her face. she started to scream and rushed out of our apt and ran downstairs to the street. no other witness at that time. Almost 23 hours later, she reported me to the police, the police took the picture of her very slight bruise on her face. she also went to the hospital have her face checked up. On the police report, she claimed that i hit her face with my fist repeatedly, causing substantial pain. 2 days later, I was arrested the court gave a order of protection and charged me with assault in third degree. I went to the criminal court first time in Sept, and my wife went along with her lawyer and told ADA she didn't want to pursue this case in front of the judge. The ADA offer me a violation. I refused to accept that and my lawyer told the judge to adjourn the case. My next court date is on 11/14. I have hired a new criminal lawyer, he told me my wife already met with the District Attorney told the ADA about everything, and also signed the Supporting Deposition. Now my wife starts to feel even more guilty and doesn't want to continue pursue this case, after he consult with my lawyer, my lawyer told her to call the ADA who on this case every week to convince the DA to drop the case, but the ADA refuse to drop the case. My lawyer told me that was he expected that ADA wont drop the case just by my wife's call. My lawyer also told me that I will be okay if my wife don't show up in court to testify against me. Is it really the case I will be feeling OK if she doesn't show up in court to testify against me? I know the ADA can use police report and medical record as evidence even though they have an uncooperative witness. I live in NYC Queens county.
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Law Pro replied 11 months ago.
Hi! My name is XXXXX XXXXX I'll be the attorney assisting you.

Yes, your lawyer is correct - the ADA needs your wife to testify to the events and you have the constitutional right to cross-examine witnesses against you.

If she doesn't show up or appear at trial - the judge has two options: 1) dismiss the case, or 2) postpone the case.

Usually the judge will dismiss a domestic dispute case rather than postpone the case because they realize that the spouse does not want to pursue the matter AND/OR
will change their story as to the events (their memory becoming vague about matters or that they started the event or that it was accidental how they were injured).

Generally medical records won't support a conviction by themself in most matters - especially in an assault and battery case because of the burden of proofs (the elements of assault and battery) that the ADA must prove.

So, if your wife doesn't show or refuses to testify or changes her testimony about the eventsd - the ADA will have no alternative but to nolle pros the case or the judge will dismiss it.
Law Pro, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 23979
Experience: 20 years trial experience in defense of criminal cases
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