March has been declared Ethics Awareness Month.  Although it started out as  a weeklong acknowledgement, by professionals in the financial industry back in 1990, it has since evolved.  Today is has been broadened to the entire month of March and to other industries acknowledging it.

          It is very challenging in family law, divorce law and criminal law cases to adhere to some of the ethical obligations attorneys are required to.  In New York, our rules are somewhat are nationwide standards imposed upon attorneys. So in child custody, child visitation, child support, paternity, divorces and domestic violence, sometimes the requirement to follow ethical obligations are often times countered by attorneys’ personal, moral and idealistic beliefs.  Particularly as the attorney for the child, there are too many times when my initial reaction is to do what is “right” as opposed to what is “ethical”.  However, because I took an oath that must be upheld, I always internalize my initial reaction and do what is “ethical”.  Here I want to explore some of the practical instances where both of these principles collide, particularly in representing the parents.

          In child custody cases, as the attorney for either parent, it is inevitable that personal beliefs about which one is the more “fit” parent arises.  In a situation where, for instance, the custodial mother has always been the primary caregiver-prepares meals for the children, dresses the children, tends to them when they are sick, takes them to doctors appointments, encourages practice of religion, encourages and supports social activities/engagements, fosters a relationship with the noncustodial parent but fails to encourage, support or get involved with their academics or school activities, should that custodial parent be provided with representation that supports her maintaining custody?  Or should the noncustodial parent who puts education first prevail in a child custody case?  Well, morally, depending on one’s own personal beliefs, one may say that there is almost nothing else in children’s lives that deserve more emphasis than academics.  However, as the attorney for that custodial parent, advocacy on behalf of that client must be done zealously.  Pursuant to the Disciplinary Rules, an attorney must not fail to carry out the contract of employment, shall not prejudice or damage the client during the professional relationship and shall advocate on behalf of that client zealously.  Furthermore, if the attorney is aware of controlling legal authority that is in the noncustodial parent’s favor in the same or very similar circumstances, he/she is obligated to reveal such information to the court if the other attorney does not, when presenting the case.

          In child visitation cases, conflict typically occurs when the custodial parent refuses the noncustodial child visitation or when the custodial parent insists on supervised visits.  As attorney for the custodial parent, unless there is proven history of domestic violence, child abuse or drug/alcohol abuse, exercising zeal and diligence in advocacy can be quite a struggle.  For attorneys who firmly believe that all parents should have free and unfettered access to their children, the tension in representing custodial parents who do not share in this belief presents a very difficult task.  However, pursuant to the Disciplinary Rules, the attorney must not intentionally fail to seek the client’s objectives through reasonable and available means, despite his/her personal views.  This, however, does not mean the attorney can not express his/her opinion; it just restricts the application of that opinion to the client’s overall objective.  In situations like these it is sometimes very helpful when the attorney for the child reports that the his/her client’s position or the attorney for the child’s position (where he/she substitutes his/her own judgment) actually supports the attorney’s personal view.  Conversely, as the attorney for the noncustodial parent who has been the aggressor in domestic violence incidents, the drug or alcohol abuse or the child abuser, the conflict is just as profound.  What is the attorney to do when the client/drug abuser discloses that he/she is still using drugs but continues to insist on visits.  Well, the ethical rules do not limit its applicability in this particular circumstance.  The attorney still has an obligation to advocate zealously on his/her behalf, not prejudice or damage the client and more importantly, preserve the client’s confidences (except where permitted by another Disciplinary Rule or required by law). 

         The same holds true in child abuse/neglect cases.  As attorney for the noncustodial parent who is the abuser, in domestic violence, child abuse or drug abuse cases, there is typically an overwhelming conflict in ethically representing the noncustodial/abuser parent.  Many times both parents, and/or “persons legally responsible”, may be parties in child abuse/neglect cases.  It is not uncommon for one of the parties to pay for both parties’ counsel fees (since it is a conflict for one attorney to represent both parties).  In a situation like this, it may not seem so odd that the paying party directs a) how the attorney represents his/her client; b) how the attorney advises the client or c) even how the attorney communicates with the client.  This however, clashes with ethical rules.  The attorney must exercise professional judgment solely on the client’s behalf, disregarding the desires of others where it might impair the attorney’s own judgment. 

          In child support cases, the challenge is not minimized just because the Child Support Standards Act governs.  There are still many situations where ethics are tempted by moral and personal judgments.  Many of us are sympathetic to noncustodial parents who have other legitimate financial obligations that limit their ability to provide for their children as provided by the statutory guidelines.  Noncustodial parents who have not and do not run from their obligation to support their children, are at times unduly burdened by the obligation mandated by the statute.  As the attorney for the custodial parent, it can be unnerving to know that the noncustodial parent may be forced to resort to, what most of us would agree, is somewhat demeaning living arrangement, particularly where that party has child visitation at that home.  However, again, the Disciplinary Rules does not permit personal views to compromise our ethical obligations.  In addition, as the attorney for the noncustodial father, particularly, even questioning paternity or filing a paternity action may pose an ethical problem if that attorney does so solely for the purpose of harassing or maliciously injuring the custodial parent. That attorney could not even advise his/her client to not pay the court ordered child support, even though paying is improbable, unless he/she has a good faith legal basis to challenge the order.

          In divorces, innumerable ethical obligations arise, putting the attorney in compromising positions.  Full disclosure in divorce cases is paramount to providing adequate and competent representation.  However, there are instances where it is tempting to advise a client to omit some information, not necessarily to mislead the other party but to avoid other consequences.  For instance, a client may want to leave out rental income on his/her Net Worth Statement because of possible tax implications.  However, ethically speaking an attorney can in no way participate in the commission of a crime, must try to talk a client out of committing fraud and must report the fraud to the court (as long as the confidences or secrets rules are not violated) if the client refuses to.  How about where the client mentions that after shopping around he/she found a realtor (who will sell the marital residence) that charges a commission a lot less than other realtors.  Can the attorney use this information for his/her personal use, in selling his/her own home?  Maybe not, pursuant to the Disciplinary Rules, not without the client’s permission. 

         Many of these cases involve domestic violence criminal elements that also pose ethical challenges.  Where during an appearance at the divorce proceeding, for instance, the attorney and his/her client are in the hallway and the other party assaults his/her client in front of the attorney.  That attorney may have to withdraw as counsel if he/she may need to be a witness in the domestic violence criminal trial.  Or the attorney may choose not tom put his/her defendant/client on the witness stand, despite the client’s insistence, in a domestic violence criminal trial where that decision is based on their professional judgment.  By far one of the most challenging positions attorneys are put in is in circumstances where their client has disclosed the intention to commit a crime; there are several factors the attorney must take into account before exercising discretion in whether or not to disclose that information to the authorities. 

         Although many of these rules may be excused by another provision of the Disciplinary Rules, there are some that are explicitly prohibited.  Some situations are not as clear cut as others and require that the attorney exercise sound judgment.  Although I discussed several rules here there are many more that may apply in the described scenarios. The bottom line, it is not easy to have to juggle some of the most widely accepted, germane principles in morality with ethical requirements imposed upon us.  However, it gets to the point where we (at least for some of us) rationalize being forced to choose ethics over morality by the good we provide in the end.

Feel free to contact my office to discuss your case.

          There is nothing more fundamental that being able to raise your child as you see fit.  One should conceivably be able to raise their child according to his or her own values, beliefs and ideals, without the overreaching and intrusive interference of the state.  However, if states were to leave this role up to the parents or legal guardians entirely, there would be no voice to protect the rights of the children, putting their physical and emotional well-being in jeopardy.  Each state has taken on the role of safe keeper of children, once the number of parents abusing their right to parent has skyrocketed, which ultimately resulted in an immeasurable number of fatalities.  In New York, Article Ten of the Family Court Act was enacted in 1969, as a result of the public outcry over the death of a young girl.  And although this statute was promulgated to protect children from abuse and neglect, it was the passing of the Child Protective Services Act of 1973 that directly addressed the reporting and investigating of child abuse and neglect cases in New York.  Under the Act, a Child Protective Service (“CPS”) office was established in each county, to encourage more complete reporting of child abuse cases, to investigate and prevent abuse and to provide rehabilitative services to parents, caregivers and children that were involved in such cases.  Allegations of child abuse and neglect cases provided to the State Central Registry by “mandated reporters”, which include medical providers, mental health professionals, law enforcement, daycare providers/workers, teachers and district attorneys, are investigated by the agency as they are reported.

            Although examples of child abuse are pretty obvious , i.e. sexually abusing, physically abusing, or allowing another to abuse the child in this way, child neglect cases can be a lot less identifiable.  For this reason, child neglect cases are more frequently investigated by CPS and brought before the court than child abuse cases, even though both may result in misdemeanor, felony and/or domestic violence criminal cases being brought in addition to the Family Court case.  Child neglect is when a parent or person legally responsible for the child, fails to care for the child and causes physically, mentally or emotionally to the child as a result or when the child is in danger of such harm because of the parent’s failure to care for him/her.   A parent, or person legally responsible, may be charged with neglect for failure to feed a child properly, failure to enroll or send a child to school, failure to seek medical treatment for a child, leaving a child home alone or with another child not old enough to watch the child, amongst many other.  There are many times when a parent, who happens to be faced with other life challenges, may unintentionally fail to act or to do something that is necessary to the child’s well-being.  Many of these situations should not necessarily rise to the level of an child neglect case but they do.  For instance, one of the most litigated child neglect case is when a parent uses corporal punishment to punish the child.  The laws in New York do not prohibit the use of corporal punishment; it prohibits the use of “excessive” corporal punishment or “unreasonable” physical force.  The New York Family Court Act and the Penal Law both address the extent to which parents’ may inflict physical harm on children.  The applicable provisions read as follows:

Neglecting a child includes unreasonably inflicting or allowing the infliction of harm or substantial risk thereof,  including excessive corporal punishment. (Fam. Ct. Act Sec. 1012).

Parent/guardian/other person with care and supervision of person under 21, can use non-deadly physical force when and to the extent he reasonably believes necessary to maintain discipline or promote welfare of person force performed upon. (Penal Law Sec. 35:10).

The difficulty for most parents comes into play when trying to discern what is “excessive” and/or what is “unreasonable” according to the law.  For example, in some instances the use of a belt to discipline a child is considered excessive and/or unreasonable, while in others the courts will dismiss a child neglect charge under such circumstances.  There is little uniformity in the definition of “excessive corporal punishment” or “unreasonable physical force” when it comes to the courts.  This is mainly attributed to the fact that bureaucratic and judicial decision-making are largely subjective in Family Court, leaving the consistency and fairness of the implementation of the child abuse and neglect laws up to the agencies.  Nonetheless, the key to determining if the line has been crossed, is first limiting the use of or refraining from the use of physical or corporal punishment altogether.  However, in instances where it is necessary to “maintain discipline or promote the child’s welfare”, some physical discipline may be justified from all perspectives.    

In other circumstances, however, where the child neglect case arose out of a parent’s failure to act, avoiding CPS’ involvement may be impossible.  Even when harm to the child was unforeseeable, not knowing that one should have done something may lend itself to agency involvement.  In a medical neglect case, for instance, where a parent fails to take a child to the doctor to be treated for an ear infection, his or her legitimate belief that an ear infection may eventually heal itself does not prevent CPS from opening an investigation against that parent.  This may not be fair considering the fact that some parents are much more experienced and savvy when dealing with less serious ailments, than the new parent, for instance.  Furthermore, in this day and age where many households are single parent, one wage-earner units, the practicality of acting in every instance is almost non-existent. 

Unfortunately, there is no surefire way to avoid CPS’ involvement in any scenario.  It’s almost as if choosing to become a parent automatically opens one up to the susceptibility of state intrusion to some degree.  A parent’s best bet is to know what not to do, than what not knowing what to do!  Communicating openly with physicians, school administrators, social service workers, etc. may not necessarily avoid agency intervention, but doing so may better prepare one to explain or defend his or her actions if questioned by the players involved.  

If you need to discuss your child abuse or neglect case, please contact my office for a consultation.

           Violence against women is a major cause of poverty and a huge barrier to economic opportunity throughout the world, not just here in the U.S.  It keeps women from getting an education, working, and earning the income they need to lift their families out of poverty. It impedes economic development because it can prevent girls from going to school, or stop women from holding jobs or inheriting property, or shut down access to critical health care for themselves and their children.  Efforts to wipe out AIDS and other diseases are compromised when women are beaten for telling their husbands they are infected.  Girls are less likely to attend school when they fear being raped by their teachers.  And research shows that giving women in poor countries economic opportunity empowers them to escape abusive situations.
            The good news is that violence against women is gaining in worldwide recognition and could be prevented successfully by actions taken by our leaders.  The International Violence Against Women Act (I-VAWA), is a groundbreaking piece of legislations that, if passed, would incorporate these solutions into existing U.S. foreign assistance programs. It would support local women’s organizations overseas that are working to to end violence against women in their countries. By promoting women’s economic opportunity, addressing violence against girls in school, and working to change public attitudes, the I-VAWA could have a huge impact on reducing poverty -  freeing women in poor countries to lift themselves, their families, and their communities out of poverty.   The I-VAWA (S.2279) was introduced in the U.S. Senate on October 31, 2007 by Senator Joseph Biden (D-Delaware) and Senator Richard Lugar (R-Indiana), the authors of the Violence Against Women Act of 1994, 2000 and 2006.  (”VAWA”)

“The International Violence Against Women Act marshals together, for the first time, coordinated American resources and leadership to address this global issue.  I believe the time is now for the United States to get actively engaged in the fight for women’s lives and girls’ futures, and we must begin by preventing and responding to the violence they face,” added Sen. Biden.
 
“We cannot expect to reduce poverty and decrease the spread of diseases such as HIV/AIDS until we have more equitable treatment of women in developing countries.  Empowered and educated women are the key to breaking these cycles,” said Sen. Lugar.
 

           It was developed by the lead sponsors in conjunction with the Women’s Edge Coalition (Edge), Amnesty International USA (AIUSA), the Family Violence Prevention Fund (FVPF), and the help of organizational partners. It is the result of joint efforts from several national women’s organizations, politicians and the United Nations.   Throughout the world, violence against women and girls is perpetrated within marriage and families by husbands, intimate partners and relatives; within communities by strangers and traditional leaders; in the workplace; across international borders as women are trafficked for sex and labor; and as a tool of war by military forces.

          The United States must continue to invest in a world where women feel safe in their homes, on the streets and at their jobs. This will enable them to build better lives for themselves, their families and their communities. Countries can take critical steps in ending violence against women by improving women’s status in society, enforcing laws to protect women and prosecute perpetrators, and offering treatment for women. The United States has the responsibility, has a global leader, to take very critical steps in ending violence against women by:
                     Increasing women’s economic empowerment and education
                     Increasing women’s access to health care
                     Improving security in humanitarian and crisis situations
                     Promoting legal reforms and social norms to address gender-based violence

The bill includes three major provisions to fight violence against women.

1.  It would create a central Office for Women’s Global Initiatives to coordinate US policies, programs, and resources that deal with women’s issues.
2.  It requires a 5-year comprehensive strategy to fight violence against women in targeted countries and provides $172 million a year to support programs that fight violence against women.
3.  It mandates training, reporting mechanisms and a system for dealing with women and girls afflicted by violence during humanitarian, conflict and post-conflict operations.

 

We can fight domestic violence globally and effect change collectiveyly! 

SO TAKE ACTION NOW.  VISIT http://takeaction.amnestyusa.org/ to sign the petition to pass this very important legislation!

          Since the enactment of federal and state laws, creation of national and local organizations and media attention to domestic violence a plethora of research, data, statistics, resources has been publicized.  There is extensive information about the impact of domesic violence, the preventioin of domestic violence and the treatment for domestic violence victims.  And although there are several channels by which this information is brought to the attention of the public, there are still many misconceptions about issues involving domestic violence.  We will disspell some of the most common myths about the effects of domestic violence, the approach to its treatment and measures for prevention.

Here are a list of some myths:

Myth:  Only a small fraction of domestic violence victims are men, the majority is women.
Fact:  While approximately 1.3 million nationwide victims are women   yearly,  approximately  835,000 are men. According to the Center for Diseased Control and Prevention.

Myth:  Domestic violence only affects women of color or immigrant women.
Fact:  Women of all races are equally vulnerable to domestic violence.

Myth:  New York has the highest per capita rate of domestic violence related fatalities in the U.S.
Fact:  As of 2005, the last year research is available, New York came in fifth.  Data provided by the NY Office for the Prevention of Domestic Violence.

Myth:  Most of the New York victims of domestic violence had an Order of Protection in effect when their abuser murdered them.
Fact:  For the past five years, 80-90% of the murdered victims had no current Order of Protection in place.  Data provided by the NYC Office to Combat Domestic Violence.

Myth:  Most of the men who abuse their spouses/paramours do not abuse their children.
Fact:  More than 50% of the men who abuse their spouses/paramours also abuse their children.

Myth:  Most abusers who petition for child custody do not prevail.
Fact:  70% of the abusers are awarded custody of their children.  Data provided by Stop Family Violence.

Myth:  Women have nothing to worry about when alleging domestic violence to a Family Court judge, their stories are always believed.
Fact:  Many judges are more likely to not believe women, thinking that they are just making these allegations as a strategy to gain custody.

Myth:  As long as children do not see the actual acts of domestic violence, they are safe from its effects.
Fact:  80-90% of children in domestic violence households are aware that it exists even if they do not witness it firsthand. Data provided by ACADV.org

Myth:  Fathers are more likely to abuse their children than mothers are.
Fact:  Mothers who were victims of domestic violence are twice as likely to abuse their children.  According to AAETS.org

Myth:  There is no effective treatment for batterers.
Fact:  Although Batterers’ Intervention Programs  have a small effect on treatment, the impact of treatment is significant especially when treatment is continuous.

            Although milestones have been made in getting the word out, providing help to the victims and getting treatment for abusers there is still much to be done.    Getting involved, staying informed and spreading the word only helps in the effort. 

 IF YOU OR ANYONE YOU KNOW IS A VICTIM OF DOMESTIC VIOLENCE, PLEASE DO NOT HESITATE TO CONTACT THE NEW YORK STATE HOTLINE AT 800-942-6906.
 

          Each year domestic violence advocates are making more and more strides in getting out the message “domestic violence can be fatal”.  Getting attention, taking action and seeing results has been the efforts of many of New York’s social service agencies, resource centers, professionals, polititicians, etc.  As a result, this year alone, there has been a considerable number of bills passed by both Houses and signed into law by the Governor.  Although there were more than triple the number of bills introduced than than the total actually passed, New York still made some strides in addressing some major issues that arise in domestic violence situations. Here is a list of the laws (and amendments) of 2007 that affect domestic violence cases, both victim and batterer:
               1.   Domestic violence survivors leaving their apartments to avoid further violence or the threat of violence, may do so without facing the possibility of civil penalties for breaking their lease.  The amendment to Real Property Law § 227-c authorizes the same court that issued the order of protection to also terminate the residential lease before the lease term ends.  Before making a request in court for lease termination, the victim must have attempted to negotiate a termination with the landlord, and gotten nowhere. The petition for relief itself, must provide notice of the proceeding to the landlord and any co-tenants, including the batterer if he is a co-tenant. The victim must also show that there is substantial risk of physical or emotional harm to him/her or his/her child (even with the order of protection), that relocation will substantially reduce the risk, that attempts for a voluntary termination from the lease were denied, and he/she is acting in good faith. If a lease termination order is granted, the victim must timely pay (or have paid) all sums due and must return the property free of occupants. If, however, there is(are) co-tenants, the victim is not responsible for removing the co-tenant from the premises after an order is issued. This law empowers the court to sever the joint tenancy, allowing the co-tenant to assume the lease a alone, unless all tenants agree to a complete termination. The law also outlines procedures for adjustments in rent and for the setting the termination date. This law took effect October 1, 2007.
               2.   Sex traffickers are now subject to criminal prosecution in New York, and not just federal prosecution.  This new law, Penal Law §§230.34 and 135.35, Penal Law §§230.36 and 135.36 provides that victims of sex and labor trafficking will not be held accountable as accomplices to their traffickers. Sex trafficking and labor trafficking are now included under Penal Law §460.10 and Criminal Procedure Law §700.05 as criminal acts that may be the basis of an enterprise corruption charge and prosecutors are authorized to employ wiretaps on trafficker’s telephones. Also, Executive Law §621(5) is amended to reflect the criminalization of labor and sex trafficking; Penal Law §230.03 is repealed, and Penal Law §230.04 elevates the crime of patronizing a prostitute from a B misdemeanor to an A misdemeanor. A person who knowingly sells travel-related services for prostitution tourism in another jurisdiction is guilty of a felony under Penal Law §230.25(1).  Defendants convicted of sex trafficking must also register as a sex offender pursuant to Correction Law §168-d(1)(b); Social Services Law was also amended to add a new Article 10-D, which sets forth the definition of human trafficking victims and provides for services available to human trafficking victims as soon as practicable, which included non-citizens.   An Inter-Agency Task Force was created to oversee sex and labor trafficking, whose responsibilities include assessing the state’s progress in preventing human trafficking, prosecuting traffickers and providing services victims of human trafficking.  This law will take effect on November 1, 2007, but the Inter-Agency Task Force law is effective immediately.

               3.   Batterers applying for firearms license now face stricter requirements where a court finds that there was a willful violation of orders of protection, which caused physical injury.  Criminal Procedure Law §§530.14(1)(a)(ii)(A) and 530.14(3)(a)(i) were amended and requires a court to order the revocation of or defendant’s ineligibility for firearms licenses and/or to order the immediate surrender of all firearms owned or possessed by the defendant upon determination that the defendant willfully violated a temporary or permanent order of protection by inflicting physical injury upon another person. This amendment now lessens the degree of injury from “serious physical” to “physical injury”.  This law took effect August 2, 2007.

               4.   Domestic violence victims may now have a court issue a temporary or permanent order of protection in a broader range of cases than just criminal and family offense cases.  Criminal Procedure Law currently authorizes orders of protection to be issued in criminal family offense case or non-family offense cases as a condition of any order of release on own recognizance (ROR), adjournment on contemplation of dismissal (ACD), pre-trial release (non-family offenses only) or bail. However, neither CPL §§530.12 or 530.13 expressly permit the issuance of a temporary order of protection where the defendant was committed to the custody of the sheriff, rather than released. Although a defendant may not be released s/he may continue to pose a threat to the victim or have contact with her from the confines of jail. By amending CPL §§530.12(1) and 530.13(1), this new remedial law provides the courts with express permission to issue a temporary order of protection “in conjunction with any securing order committing the defendant to the custody of the sheriff.” This law took effect July 3, 2007.

               5.   Batterers on probation may face violation of probation for family offenses.  The amendment to the Criminal Procedure Law and the new section (§410.92), allowed the Division of Probation to establish pilot projects in four New York State counties outside of NYC. Additionally, the law also amends Correction Law §500-a(1)(c) to permit temporary detention of individuals in violation of their probation for family offense, sex offense or youthful offender convictions.   Under the new law, a person on probation may be taken into custody for a violation of a condition of a sentence of probation when the Director or Deputy Director of the local Probation Department determines that the probationer is a public safety risk and the probationer may be detained for up to 48 hours to permit the sentencing court to determine whether the he/she violated a condition of his or her sentence. If the sentencing court finds reasonable cause that a condition of the sentence was violated, the court may commit the probationer into the sheriff’s custody, set bail or release the person on their own recognizance. If there is no probable cause, the probationer will be released. Further, the law requires the Office of court Administration to ensure that judges in pilot program communities are available to review the status of persons in custody pursuant to the detainer. The law took effect July 18, 2007.

               6.   The Office of Court Administration was authorized to create rules for selected Family Courts (in Erie, Onondaga, Monroe, Nassau, New York, Westchester, Richmond, Kings, and Albany counties) to institute experimental programs that will allow temporary or permanent orders of protection to be transmitted to the police or sheriff, by fax or electronic means, for service on the batterer.   However, participation in this pilot program is voluntary.  This law took effect July 18, 2007.
               7.   Domestic violence victims no longer have to pay the sheriff’s departments in New york, for serving orders of protection or any other documents attached to orders of protections. This includes fees for mileage associated with service and/or fees where an order cannot be served in one attempt. This law adheres to the STOP Formula Grant Program’s requirements under the federal Violence Against Women Act, which states that survivors of domestic violence, sexual assault and stalking who obtain civil orders of protection from their offenders should not have to bear financial expenses related to obtain these orders.  This law took effect August 8, 2007.  
               8.   Destruction of property or vandalism (”criminal mischief” crimes) are now “family offenses” . An amendment to §812(1) of the Family Court Act and §530.11 of the Criminal Procedure Law adds the crime of criminal mischief (PL §145.00-145.12) to the list of enumerated family offenses under which both the Family and the Criminal courts have concurrent jurisdiction. Additionally, criminal mischief constitutes four different crimes with four different degrees under the Penal Law and this new law does not specify which crime elements must be met to be considered a “family offense”.  This law will take effect November 13, 2007.

IF YOU ARE A VICTIM OF DOMESTIC VIOLENCE  OR KNOW SOMEONE WHO IS, PLEASE SEEK HELP FROM THE NUMEROUS AGENCIES THAT PROVIDE EVERYTHING FROM HOUSING TO FINANCIAL ASSISTANCE.  CONTACT THE HOTLINE AT 800-942-6906.

          Although New York has broadened the services made available to victims of Domestic Violence since 1996, many victims are not taking full advantage of them.   The New York State Office of Prevention of Domestic Violence and New York City Office to Combat Domestic Violence has been instrumental in implementing some very vital services to assist domestic violence victims and their families with everything from shelter to counselling to financial assistance.  These services have revised the way the police respond to domestic violence victims, the locations where referrals services are offered and even broadened eligibility of services.  Of course these improvements could not have been done if it were not for the legislature, the judiciary and law enforcement, but the states’ agencies on domestic violence has been critical in actually getting the services the victims. 

          Although there have been milestones in implementation there are some very important things that many do not know exist.   Here is a list of some of the most important:

1.     The police are encouraged to make follow up visits to the victim and their family, ensuring that there are no further incidents of harm, threat or injury; that service referrals were made and to reassure the family.

2.     Victims are entitled to police protection regardless of immigration status, they are prohibited from inquiring about immigration status when responding to a domestic violence call.

3.     Same sex couples and New York City domestic partners are included in NYPD’s definition of “family” or “household” and therefore, are entitled to the same treatment & services under domestic violence.

4.     Victims can monitor their abuser’s release from jail by registering with the Victim Information & Notification Everyday (”VINE”) by calling 888-VINE4NY and setting up a password to receive automated notifications.

5.     The Human Resources Administration has a program called Alternative to Shelter (”ATS”) which allows victims, who have a valid Order of Protection, to safely stay in their homes with a state-of-the-art security system that is directly linked to the NYPD.

6.     Although the Section 8 and public housing priorities are no longer available for homeless victims, there is a new rental assistance program called Housing Stability Plus, offered by the Department of Homeless Services.   The program offers market rate rental supplements to homeless families who leave the homeless shelter and are ready for permanent housing. 

7.     New York State’s Crime Victims Board may compensate victims for lost wages, moving expenses, essential personal property and medical/counselling services.   All police stations are encouraged to keep the applications on hand.

8.     Family Court and Supreme Court (including the new IDV courts) may make an Order of Protection as part of a child custody and child support order.  Conversely, the judge can make an order of child support as part of an Order of Protection.

9.     A valid out-of-state Order of Protection, even a temporary Order of Protection, is enforceable in New York Criminal Court and Supreme Court, as part of a divorce, legal separation or annulment.  Although registering the Order of Protection is not required, it should be registered in the NYS registry to ensure widespread alert.

10.     A victim may apply to the Social Security Administration for a new social security number as long as they can prove that they are in danger if their identity and/or location are obtainable.  The SSA requires proof of domestic violence, proof of immigration status and the old social security number.

IF YOU ARE A VICTIM, YOU SHOULD BE PERSISTENT IN SEEKING SERVICES FROM POLICE, THE COURTS, HOSPITAL/MEDICAL PROVIDERS, CLERGY, AGENCIES, ETC. DO NOT GET DISCOURAGED.  THERE MAY BE SOME CHALLENGES BUT THERE ARE AN ABUNDANT OF PROVIDERS WILLING TO HELP.

          “As we observe National Domestic Violence Awareness Month, I call on all Americans to commit to preventing domestic violence and to assist those who suffer from it. These collective efforts will contribute to peace in our homes, schools, places of work, and communities and will help ensure the future safety of countless children and adults.

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me by the Constitution and laws of the United States, do hereby proclaim October 2001, as National Domestic Violence Awareness Month. I urge all Americans to learn more about this terrible problem and to take positive action in protecting communities and families from its devastating effects.

IN WITNESS WHEREOF, I have hereunto set my hand this first day of October, in the year of our Lord two thousand one, and of the Independence of the United States of America the two hundred and twenty-sixth.”

                                                                                   GEORGE W. BUSH
           For the month of October my blogs will focus on the very serious topic of Domestic Violence.  I will explore the issues of policy, resources, data/statistics and future developments in the area.  Domestic violence is still one of New York’s (and the nation’s) most fatal and injurious plights that affects our society in several ways.  Albeit, the spotlight on the topic has promulgated advancements in law, resources, training, etc. there is still much work to be done. Since 1970 when domestic violence awareness has been on the forefront of evolution,  there has been tremendous advancements.  New York, particularly, has devoted and committed significant time, money and efforts to awareness, prevention and treatment of all of the tangential issues that arise as a result of domestic violence. 
What is Domestic Violence?

         It is defined as a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner.  Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.  Domestic violence includes teen relationship abuse, lesbian/gay/transgender abuse, elder law issues, i.e. elder abuse and child abuse/neglect.
Domestice Violence Data & Statistics:

          -National data on domestic violence indicate that estimates range from 960,000                   incidents of violence against a current or former spouse, boyfriend,  or per  year to three million women who are physically abused by their husband or boyfriend per year.

             -Nearly one-third of American women (31 percent) report being physically or        sexually abused by a husband or boyfriend at some point in their lives, according to a 1998 Commonwealth Fund survey.

             -Nearly 25 percent of American women report being raped and/or physically            assaulted by a current or former spouse, cohabiting partner, or date at some time in their lifetime, according to the National Violence Against Women Survey, conducted from November 1995 to May 1996.
 
             -Thirty percent of Americans say they know a woman who has been physically abused by her husband or boyfriend in the past year.
 
             -In the year 2001, more than half a million American women (588,490 women) were victims of nonfatal violence committed by an intimate partner.
 
             -In 2001, women accounted for 85 percent of the victims of intimate partner violence (588,490 total) and men accounted for approximately 15 percent of the victims (103,220 total).
 
             -While women are less likely than men to be victims of violent crimes overall, women are five to eight times more likely than men to be victimized by an intimate partner.
 
Although there is no up to date data on New York State’s domestic violence incidences, current information implies that it may be higher than the national average.
Domestic Violence and Its Impact:

          Domestic violence affects families, employers, medical ahd health professionals, social service providers, mental health professionals, politicians and government funding.  Criminal law, child support, child custody/visitation, spousal support, divorce, immigration, landlord-tenant, debt & collection, civil law and government beneftis all interrelate in domestic violence cases.  In addition, Domestic Violence has a direct and/or indirect correlation to teen violence, teen pregnancies, infant mortality, just to name a few. 
 
          In fact, New York has implemented several changes, in legislation, court intervention, funding, etc. to address the impact domestic violence has on socio-economic conditions.  From the most recent development of the Family Justice Center (which is currently in only a few counties) to the ubiquitous Integrated Domestic Violence courts now up and running in most of the state.  More and more developments are constantly being instituted and implemented to address the ever-changing paradigm of domestic violence. 

           Look for the upcominig discussions where we will explore related topics on the issue of domestic violence.

          Although many states, including New York, have laws criminalizing failure to pay child support, the imposition of the penalty is still subject to scrutiny by the U.S. Constitution.  The Fourteenth Amendment of the U.S. Constitution states “that no person shall be deprived of life, liberty, or property without legal protection in the form of being present at a hearing, having the opportunity to be heard, and having the opportunity to present evidence”.  The applicable provision of the criminal statute states: 

§ 260.05 Non-support of a child in the second degree.
 
   A  person  is  guilty  of non-support of a child when, being a parent,
  guardian or other person legally charged with the care or custody  of  a
  child  less  than  sixteen years old, he fails or refuses without lawful
  excuse to provide support for such child when he is able to  do  so,  or
  becomes  unable  to  do  so,  when,  though  employable,  he voluntarily
  terminates his employment, voluntarily reduces his earning  capacity  or
  fails to diligently seek employment.
  Failure to provide child support for one’s child in the second degree is a class A misdemeanor.    If the person has been previously convicted of this crime within the past five years, they can then be charged with a class E felony. (Penal Law Section 260.06)

         A class A misdemeanor is punishable by up to one year in jail in New York, while a class E felony is punishable by up to five years in prison.   Criminal punishment is just one of the several options the courts can utilize in sanctioning a non-custodial parent for not paying court ordered child support.  Imposing criminal sanctions only goes to perpetuate the plight that many non-compliant parents face.  Several scenarios give rise to non-payment in the first place.  First, often times the non-custodial parent becomes unemployed or underemployed and is stuck with an obligation to pay an amount that far exceeds his income.  In New York, it is the responsibility of the payor-parent to go to court to file a Modification Petition, seeking a Downward Modification.  Unfortunately, though, more often than not payor-parents are discouraged from filing these petitions or are flat out denied by the courts, thereby binding that parent to the previously imposed obligation.  Next, sometimes an obligation of support was imposed by the court on “default”, where the payor-parent was not present and therefore unable to provide information as to his/her actual ability to pay.  Consequently, a Downward Modification petition based on default has a higher probability of being granted if the default is found to be “excusable”.  And finally, inability to pay arises as a result of the court hearing from both parties but deciding that the resources of the payor-parent is adequate enough to provide for the child(ren) in the amount ordered.  This circumstance happens to be the most difficult to challenge, since a Downward Modification petition requires a finding of “unexpected or unanticipated change in circumstances”, which usually does not exist in this particular scenario.
          Nontheless, the court’s imposition of the criminal sanction can be the most debilitating in any of these scenarios since child support, whether sporadic or persistent, is usually provided by earned income.  Thus, any period of incarceration can jeopardize current employment or future employment since criminal convictions minimizes one’s chance of being or becoming employable.  Furthermore, no real purpose is served by incarceration since the payor-parent has no real incentive to pay, the child(ren) do not benefit financially, emotionally or psychologically and the courts’  calendars remain overwhelmed with recidivists who could have been spared if they were given the opportunity to be heard.

          In South Dakota, there was a recent decision by that state’s highest court, that found that the imposition of jail for failure to pay child support was unconstitutional because it violated the Fourteenth Amendment.  The Fourteenth Amendment of the U.S. Constitution states “that no person shall be deprived of life, liberty, or property without legal protection in the form of being present at a hearing, having the opportunity to be heard, and having the opportunity to present evidence”.  A court order requiring a man to spend 10 days in jail every time he failed to pay monthly child support was unconstitutional because it amounted to criminal punishment imposed without a trial, the South Dakota Supreme Court ruled.  In its unanimous opinion, the high court said a circuit judge must re-examine the case to determine the proper penalty for the payor-parent, who was found to owe nearly $63,000 in support for two children.  Athough the circuit court judge found that the payor-parent had an ability to pay, and was therefore in contempt for not paying, the high court stated that because the contempt finding was criminal in nature, that he had the right to a trial.  So it was not the criminal element of the punishment that made the circuit court’s finding unconstitutional, but the imposition of the recurring sentence of ten days in jail, without affording him the opportunity to present a defense was the problem.

If Senator Larry Craig were convicted in New York, could he withdraw his guilty plea? 

          Well, no.  Although in New York state most criminal convictions end up being resolved by plea bargaining, that is a “bargain” that is not returnable.  Plea bargaining is when the prosecuting attorney (referred to as District Attorney) makes an offer to the criminal defendant to plead guilty either to the crime charged or to a lesser included offense, in exchange for a lighter sentence.  A plea bargain, although to many  it is considered a misnomer because very often there is no bargain, is usually the most efficient way to dispose of a criminal case.  Agreeing to a plea bargain saves the court, the attorneys and the residents time while granting the defendant control over his or her own fate.  Plea bargains also obviate the need for costly and time-consuming investigation, extensive trial preparation, and excessive use of state and local resources.  Plea bargains are typically offered in cases where the District Attorney does not  wish to proceed to trial for various reasons.  For example, often times the prosecuting attorney does not want to go to trial because of the sensitivity of the case, like the impact on the victim and/or the victim’s family.  However, their reason for choosing to offer a plea  may merely be because of the unavailability of judges/courts to actually try the case. 

          Most criminal defense attorneys take a very active role in plea bargaining, which may commence at any phase of a criminal case, from as early as the arrest up until the point of jury deliberation.  The factors usually taken into consideration, from the defense attorney’s perspective, are the strenghts and weaknesses of the case, the impact of a jury conviction would have on the client’s immigration or employment status or sometimes the political or social climate surrounding the case.   

The Courts Cover all Bases in Securing a Guilty Plea
          Defendants who plead guilty must waive three important constitutional rights—the Fifth Amendment right to self-incrimination, Sixth Amendment right to jury trial, and Sixth Amendment right to confront and cross-examine one’s accusers. The Supreme Court has determined the constitutionality of plea bargaining in Boykin v. Alabama (1969), where the Court held that the record must disclose that the defendant voluntarily and understandingly pled guilty. In fact, in Santobello v. New York (1971), the Court described plea bargaining as “an essential component of the administration of justice. Properly administered, it is to be encouraged” (p. 260).  However, even with these rulings by the highest court, there are still concerns  with coercion, false pleas, and injustice.  While others raise concerns about the excessive leniency, reduction of deterrence, and the impact of the law from plea bargaining.

          Once an individual opts for a plea bargain, whether it be to a misdemeanor or felony offense, the judge ( and sometimes the prosecuting attorney)  requires a full allocution (where the defendant is questioned on procedural and substantive issues) before the plea is accepted.  This questioning is a method used to ensure that the defendant:

1) is coherent, sober and lucid;

2)  is under no duress or influence;

3) is aware of the crime charged with and the sentence;

4) understands the constitutional rights he/she waives and

5) is satisfied with his/her counsel. 

These questions (and defendant’s responses) assures the court, and the prosecuting attorney, of the defendant’s willingness to enter the plea of guilty and understanding of so doing, minimizing any constitutional challenges  defendant may raise later.

          In New York, withdrawal of a plea of guilty is in the discretion of the trial court.  In People v. Davis (1998)   the court found that a request to withdraw a guilty plea will rarely be granted unless there is a finding of innocence, mistake or fraud that served as the basis of the plea.  A defendant’s claim of intoxication, failure to understand because of illness or innocence (even where another person claims responsibility for the crime pleaded to) will rarely serve as the basis for a withdrawal of a guilty plea.   Even where a defendant’s immigration status is at stake  (immigration status is in jeopardy even for a plea to domestic violence), which is typically the reason for such request for plea withdrawal, rarely will they be given the chance to change their plea.

          In Senator Craig’s case, the decision to withdraw his plea was based entirely on the impact of the conviction on his political career.  However, not only does he fail to make a sound argument as to why he should be able to withdraw his plea, he basically sealed his fate when he signed the Petition to Enter a Plea of Guilty.  In that affidavit he indicated that he was aware of the charges brought against him and he admitted guilt to those charges.  Therefore, his current challenge to the voluntariness of the plea or knowingness of the chages will be more than likely be unsucessful.   Had he hired an experienced criminal defense attorney, he would have been informed of this.
 

New York Penal Law:

§ 265.03 Criminal possession of a weapon in the second degree.
A person is guilty of criminal possession of a weapon in the second
degree when:
(1) with intent to use the same unlawfully against another, such
person:
(a) possesses a machine-gun; or
(b) possesses a loaded firearm; or
(c) possesses a disguised gun; or
(2) such person possesses five or more firearms.
Criminal possession of a weapon in the second degree is a class C
felony.

The recent change has made illegal possession of a loaded or defaced handgun on one’s person a class C felony. Up to and until November 2006, when the new law took effect such a crime was classified a class D felony. Possession of the same handgun in one’s home or place of business is still classified as a class D felony. The distinction in the classification is the sentencing, for both pleas or convictions after trial. A Class D felony is a felony punishable by law with sentences of one year incarceration or five (5) years probation (or “felony probation”) where there is a pre-indictment plea. A post-indictment plea offers a sentence range of 1-3 years of incarceration. These sentence provisions only apply to first time offenders. A conviction after trial, however, requires a sentence of up to seven years. On the other hand, a class C felony pre-indictment plea usually results in a one year incareration, while post-indictment plea typically results in a sentence ranging from 3 1/2 to 7 years. Again, the penalties for second or repeated felony offenders are a lot stricter. After trial conviction, the law requires for a period of incarceratiof up to fifteen years.

Ironically, the number of violent crimes in New York by 2006, crimes involving the use of handguns, was more than 50% less the total number of violent crimes in the previous year. Consequently, the legislature’s sole objective was not only to reduce viiolent crimes, but to keep our police officers safe since the number of law enforcement fatalities has increased in the past decade. In fact, after a police officer shooting back in 2005, Gov. Pataki called a “special session” and passed new gun legislation in fall of that same year. That law made it a felony to possess three handguns inoperable or not, while the previous law set the number at twenty. Gov. Pataki also imposed stiffer penalties for police shooters.
New York State’s lobbyists and gun control advocates have gathered data to support their respective positions. The overall conclusion is that there is no clear and conclusive data to indicate there is a correlation between strict gun control laws and the reduction in violent crimes. In fact, gun related injuries still remain one of the country’s leading causes of death and suicide.

In addition, the Legislature made this significant change to its illegal handgun possession laws while still dealing with advocates for changes to the policy on handgun license procedure. Many believe that New York’s licensing procedure significantly impedes one’s Constitutional right to bear arms. New York is one of a few states that has a licensing procedure where there is a prescribed list of licenses that may be issued and whether any permit may issued at all. Most other states have a procedure where all of its residents may obtain permits, upon a criminal background search and the completion of training. The New York State Rifle and Pistol Association is currently working on proposed legislative changes to New York’s current licensing procedure, that will require the state to apply an “objective standard” to applicants. The bill, although not quite specific yet, would eradicate the several restictive classes of possession and would make each resident eligible to obtain a license.

Whether the new changes will render any significant results is left to be seen. It is too soon to make any such determination. One thing is clear, however, is that the stiffer sentences are being imposed. The procedural laws, based on the U.S. and New York Constititutions, are still intact, so an accused may have a chance if his Fourth, Fifth or Sixth Amendment rights were violated during the arrest process.