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Jack R.
Jack R., Lawyer
Category: Criminal Law
Satisfied Customers: 6147
Experience:  OHIO//Texas Attorney Civil/Crimnal Practice
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Good evening, Last Monday, my wife was arrested at about

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Good evening,

Last Monday, my wife was arrested at about 3 15 pm for Domestic Violence at home. we had been arguing that day over money and she had some drinks during the afternoon. My mother got involved, they had a fight, we ended up calling the police who arrested her and sent her to jail. She is a russian citizen who I married exactly two years ago (Nov. 2011) and at the time of the fight, she was out-of-status (illegal) due to me not being able to file for her papers after losing my job, becoming hospitalized and being disabled almost all the last year; I went broke, so I could not file for her at the time. I was saving money to be able to file for her and get her a permanent residence in the U.S. We had a child together, who is now 16 months old.

So, we had been having difficulties in our marriage, and last Monday we had this fight that led her to be arrested, and the police took statements from me and my mother. I wrote what had happened (she threw some kicks at me when i tried to hold her down to avoid more conflict; she bit my elbow and my wrist, tore my shirt, I can't recall if she hit me or not, but I was thinking that she had hit my mother in the face because an officer mentioned that my mother appeared to have received hits on her face so I wrote that too).
I also mentioned that my wife was drunk, because she appeared to be under the effects of alcohol at the time. My report was one-line long, and the officer told me to write more complaints about my wife. I didn't.

My mother was shocked as a result of the fight; there had been hair pulling, pushing each other around, struggling, and couldn't figure out what to write, so she was coached by the officer who took the declarations, asking her questions such as if she had been body slammed, etc; the officer reported: kicking, punching, pushing, slapping, slamming body, threw items, verbal abuse, hair pulling. Then he asked my mother to write what had happened that day, and everything else she could think of, that had happened before, (meaning past incidents) and my mother was led to understand that he wanted to know everything that had happened from the day my wife had arrived to my home (two years).

My mother, complained about my wife kicking and punching her during the last two years (in the past, my wife had a nasty argument with my mother, and they both had a history of disagreements and fighting; some day she did throw a kick and a punch at my mother that luckily didn't cause injuries), and my mother also complained that my wife had been throwing out our furniture and items she threw out to the street (some furniture, a couple old computers, a table lamp, and various other items that started to disappear from home) and she complained that she had thrown some small metallic objects at her; also that she had thrown water at her. As it turns out, this did NOT happen the day of the fight; but my mother has difficulties understanding english properly and she thought that the officer MEANT to say that he wanted a complaint of everything that happened ever since they met. So, the report is partially inaccurate.
the police took pictures of the red areas where my wife bite me and the torn shirt; and of my mother's face.

long story short, the police told us that the statements would only be used to ensure that my wife didn't act violently anymore; that she would be released a few hours after the event in order to allow her to clear her mind from alcohol, but as it turns out, this didn't happen. She was sent from the local precinct in Queens, NYC to a different facility where she was held until next day for a court arraignment; she was charged with DV and a full order of protection was issued; then she was told that she could go, but ICE immigration customs enforcement had issued a warrant against her for the overstay, and she was detained and sent to Riker's island jail on bail of $1. i only learned this until very late that day since nobody knew where she was.

After talking to several attorneys and getting information, I bailed her out so she could attend the Queens criminal court appointment (to happen later on november 22 2013); and at that time, ICE took her to their facility in NYC; where she was questioned. She mentioned that she was married to an american citizen (me), that we had a baby, and that she had an attorney. As a result, she was not detained, but a removal order was placed; given to her and she was let go pending an appearance in immigration court in December 2 or so.

We have retained a criminal attorney to help.

So we have the following questions:

1. what should we do in this case?
2. can we somehow drop charges, or change the DIR (domestic incident report/supporting deposition)? how?
3. how can we get those charges fully dismissed? (she will get deported without full dismissal)
4. Any other solutions/suggestions?

Thank you very much for your help!
Best regards,

Sherwin S.
Submitted: 8 months ago.
Category: Criminal Law
Expert:  Jack R. replied 8 months ago.

Thank you for choosing Just Answer. My name is XXXXX XXXXX X will assist you today.

 

I am sorry to hear of your situation.

 

Domestic violence is one of the crimes that seems to get a lot of attention especially after the OJ case. In many jurisdictions a prosecutor must prosecute a domestic violence case even if the victim chooses not to press charges.. In some case a prosecutor will not go forward because the victims recant or indicate they will not testify.

 

However, where a police officer witnesses the physical violence or sees that injury has been inflicted e.g. bite marks, torn clothing, fresh bruising on a party that evidence is sufficient to go to trial with. With this evidence the prosecutor may not need the cooperation of the victim.

 

What you will need to attempt is to try to get a plea bargain to a lessor offense maybe something along the lines public intoxication. You will need to hire a lawyer for your wife and have the lawyer try to get the charge reduced. You might offer that your wife will agree to go to rehab, or attend some other program on alcoholism. It is unlikely that the charge will be dropped, but you may be able to get it reduced.

 

If your wife has never been convicted of a crime previously, the reduced charge may also permit was is referred to as diversion or deferred adjudication which will delay a conviction and ultimately remove it if your wife doesn't re-offend. Your lawyer can explore this with the prosecutor.

 

You will need to get the no contact order lifted. Otherwise your wife will have no where to live.

 

Please accept my answer with a rating of 3 or better so I may get credit for my response. If you have follow up questions please ask. Please note that paying the deposit does not cause funds to be disbursed until you rate my response (3 or greater).

Customer: replied 8 months ago.

Dear XXXXX, thank you for your kind help.



I would like to follow up this question requiring further details.



It appears that the question I required was "answer with most detail" instead somehow the system automatically marked the "just answer" option. I need as much detail as I can possibly receive in this matter in order to help my wife with her case. therefore, I'd like to receive full details regarding this matter.



I already hired an attorney. I'm trying to determine what should be the decision at the time when this matter goes to court.



In New York City, it seems that the "deferred adjudication" solution, while viable in most cases where a US citizen is involved, would apparently cause a situation where a minor violation plea might be enough to cause deportation.



Since my wife is a non-citizen, pleading guilty to most minor crimes or violations would cause a deportable offense conviction.



Please answer in full detail, and for the state of New york, county of Queens, if you know,



What would be the most appropriate solution in this case?



What do you recommend that we should do in order to resolve this matter, more precisely?


while your suggestion sounds great, is there specifically some particular non-deportable charge that she could go for, that might avoid that she gets deported and that she can get her green card once we file for it? (we're currently working on this and we have all necessary support to file for the residence and visa papers; we have to resolve the criminal charges first)



We also mentioned that the charges were inaccurately reported. How can we change them? can we change them/recant/ drop them somehow? if so, how can we do this? will we get jailed if we recant or change our declaration in NY City/NY State? The DIR form states that making false allegations is a Misdemeanor type A (jail to 1 year);



so how can we make that change without getting jailed?



requesting the arresting officer to make this change; will he agree? will he arrest us instead? what do you think?



Please let me know what you think, in full detail, thank you. if my premium membership does not allow me to ask full detail questions please let me know so I can find out what is going on? thanks!!!



Best regards,



Sherwin S.


 

Expert:  Jack R. replied 8 months ago.

I am not an immigration lawyer. However most minor crimes do not trigger deportation.

From the immigration and visa site the following crimes are subject to deportation:

 

Criminal Grounds
  • An alien or lawful permanent residence (green card holder) is deportable if the person is convicted of a crime involving moral turpitude and was committed within 5 years of admission and the crime convicted may impose a sentence of one year or longer.
  • An alien or lawful permanent residence is deportable if after admission the person is convicted of two crimes involving moral turpitude and the two crimes arose not from one single scheme of criminal conduct.
  • An alien or lawful permanent residence is deportable if committing aggravated felonies at any time after admission.
  • Domestic Violence

The key is to plead the offense down to a minor offense such as public drunkenness. It is also possible that a misdemeanor assault ( not domestic violence) is not a deportable offense. What you must do is get the charge out of the realm of Domestic Violence.

 

You should work with your lawyer, but you should consider a jury trial if possible. At least you need more than 1 vote for conviction. Faced with a jury trial the prosecutor may be more inclined to settle for a lower charge.

 

What to charge is up to the prosecutor. You cannot get them changed. In the end the prosecutor will need to determine if he can prove the charge.

 

There are defenses to criminal actions. For example self defense. Intoxication can also be a defense to certain crimes ( your lawyer should be able to explain this). for this you would need to testify that you started the altercation or at least was the instigator. An acquittal would eliminate the problem.

 

Please accept my answer with a rating of 3 or better so I may get credit for my response. If you have follow up questions please ask. Please note that paying the deposit does not cause funds to be disbursed until you rate my response (3 or greater).

Jack R., Lawyer
Category: Criminal Law
Satisfied Customers: 6147
Experience: OHIO//Texas Attorney Civil/Crimnal Practice
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