How to Fight a Criminal Court Temporary Order of Protection

At Vasiliou Law, located in Queens, New York, we believe in protecting your rights and ensuring that legal procedures are not misused to create unjust outcomes. Temporary Orders of Protection (TOPs) can be issued quickly, often without a full hearing, causing significant disruptions to the lives of those affected. Fortunately, a recent case, Crawford v. Ally, has reshaped the legal landscape surrounding these orders, offering new ways to fight against unjust TOPs. Additionally, New York’s Criminal Procedure Law (CPL) Section 530.12 provides critical factors the court must consider before issuing such orders.

Understanding Temporary Orders of Protection

In New York, a TOP is a legal order designed to protect victims of domestic violence by prohibiting the accused from engaging in specific activities, such as contacting the alleged victim or staying in a shared residence. While these orders are meant to ensure safety, they can be issued without the accused having a chance to present their case, often leading to unfair consequences like eviction or separation from family members.

Crawford v. Ally: A New Framework for Challenging TOPs

The landmark Crawford v. Ally case (2021) changed how courts in New York handle TOPs. In this case, Ms. Crawford was forced out of her home after a TOP was issued without her being granted an evidentiary hearing. This exclusionary order caused significant harm to her, including homelessness, even though her case had not yet been fully reviewed.

The appellate court’s ruling established the “Crawford Hearing,” a procedural safeguard that now requires courts to assess the necessity and legitimacy of a TOP before it is issued. This ruling has empowered individuals to fight unjust TOPs, ensuring that their side of the story is heard before drastic measures are taken .

Factors the Court Must Consider: CPL Section 530.12

During a Crawford Hearing, the court must follow the guidelines established under CPL Section 530.12 when considering whether to issue or modify a TOP. These factors include:

1. The Nature of the Alleged Offense: The court must examine the severity and circumstances of the offense, especially whether the accused’s behavior poses an imminent threat to the alleged victim.
2. Prior History of Domestic Violence: The court should assess whether there is a history of domestic violence between the parties, which could indicate a higher risk of harm if the order is not imposed.
3. Risk to the Alleged Victim: The court must determine the potential risk to the alleged victim if the TOP is not granted. This includes considering any physical, emotional, or psychological harm the accused might cause.
4. Evidence of Threats or Abuse: The court should take into account any evidence presented that suggests a pattern of threats, harassment, or abusive behavior by the accused.
5. Living Arrangements: If the accused and the alleged victim live together, the court must evaluate how the TOP will impact housing arrangements, particularly if it results in one party being displaced from the home.
6. Child Custody and Visitation: If the parties share children, the court must consider how the TOP will affect custody and visitation, ensuring that the order does not unnecessarily disrupt the child’s welfare unless there is a clear risk to their safety.

How Vasiliou Law Can Help You

At Vasiliou Law, we use the Crawford v. Ally decision alongside CPL Section 530.12 to ensure your rights are fully protected when facing a TOP. If you are accused of an offense and are facing a TOP, we will:

1. Request a Crawford Hearing: We will demand a hearing to challenge the necessity of the TOP before it can take effect, giving you a fair opportunity to present evidence and defend yourself.
2. Ensure the Court Considers Relevant Factors: We will make sure the court evaluates all the factors outlined in CPL Section 530.12, ensuring that the order is not issued reflexively or without proper consideration of your circumstances.
3. Challenge the Order’s Impact on Your Life: We will fight to minimize the disruption caused by the TOP, particularly in cases involving shared homes or child custody, so that your rights are not unfairly restricted.

Conclusion

If you are facing a Temporary Order of Protection, don’t let it upend your life without a fight. The Crawford v. Ally ruling and CPL Section 530.12 provide powerful tools to ensure that your rights are respected and that the court thoroughly reviews the need for any protective order. Contact Vasiliou Law today to discuss your case and how we can help protect your rights.