Aggravated Family Offense is a serious criminal charge that involves acts of violence or threats of violence against a family member or someone with whom the accused has a domestic relationship. These charges can carry severe penalties, including imprisonment, fines, and long-term impacts on personal and professional life. If you are facing such charges, it is crucial to have a skilled defense attorney to navigate the complexities of the legal system and protect your rights.
Michael A. Arbeit, P.C. is a leading criminal defense practice representing clients throughout Long Island and New York City. When you meet with us, we will help you understand the charges and your legal options. Although prosecutors aggressively pursue convictions for violent crimes such as aggravated assault, we will work strategically to achieve the best possible outcome. Contact our office today to consult with an experienced assault defense attorney in Long Island.
Understanding Aggravated Family Offense
An Aggravated Family Offense occurs when an individual commits a specified family offense and has a prior conviction for one of these offenses within the past five years. These offenses include, but are not limited to:
- Repeated family offenses within a five-year period.
- Violations of protection orders.
- Elements of violence or threats against family members.
- Enhanced penalties due to prior convictions.
Defenses Against Aggravated Family Offenses Our Firm Can Raise
- Lack of Intent: Demonstrating that there was no intent to commit the offense.
- False Accusations: Proving that the allegations are false or exaggerated.
- Insufficient Evidence: Challenging the sufficiency of the evidence presented by the prosecution.
- Violation of Rights: Arguing that your constitutional rights were violated during the investigation or arrest process.
Why Choose Michael A. Arbeit, P.C.
Michael A. Arbeit, P.C., is dedicated to providing aggressive and knowledgeable defense for individuals accused of aggravated family offenses. Here’s why you should choose our firm:
- Experienced Representation: With years of experience in criminal defense, we understand the nuances of the legal system and how to effectively navigate it.
- Personalized Attention: We offer personalized legal strategies tailored to the specifics of your case to ensure the best possible outcome.
- Proven Track Record: Our firm has a history of successfully defending clients against serious criminal charges.
Contact Our Long Island & New York Criminal Defense Attorney for Immediate Assistance
Facing an aggravated family offense charge can be overwhelming and stressful. It is crucial to have an experienced attorney on your side to guide you through the legal process. Contact our office today to schedule a consultation with a seasoned Long Island criminal defense attorney. We are committed to defending your rights and providing you with the best possible defense.
Michael A. Arbeit, P.C. assists clients throughout Long Island, including Nassau County, Suffolk County, Garden City, Freeport, and New York, including Queens, Brooklyn, Manhattan, Staten Island, and The Bronx.
§ 240.75 Aggravated Family Offense.
1. A person is guilty of aggravated family offense when he or she
commits a misdemeanor defined in subdivision two of this section as a
specified offense and he or she has been convicted of one or more
specified offenses within the immediately preceding five years. For the
purposes of this subdivision, in calculating the five year period, any
period of time during which the defendant was incarcerated for any
reason between the time of the commission of any of such previous
offenses and the time of commission of the present crime shall be
excluded and such five year period shall be extended by a period or
periods equal to the time served under such incarceration.
2. A “specified offense” is an offense defined in section 120.00
(assault in the third degree); section 120.05 (assault in the second
degree); section 120.10 (assault in the first degree); section 120.13
(menacing in the first degree); section 120.14 (menacing in the second
degree); section 120.15 (menacing in the third degree); section 120.20
(reckless endangerment in the second degree); section 120.25 (reckless
endangerment in the first degree); section 120.45 (stalking in the
fourth degree); section 120.50 (stalking in the third degree); section
120.55 (stalking in the second degree); section 120.60 (stalking in the
first degree); section 121.11 (criminal obstruction of breathing or
blood circulation); section 121.12 (strangulation in the second degree);
section 121.13 (strangulation in the first degree); subdivision one of
section 125.15 (manslaughter in the second degree); subdivision one, two
or four of section 125.20 (manslaughter in the first degree); section
125.25 (murder in the second degree); section 130.20 (sexual
misconduct); section 130.30 (rape in the second degree); section 130.35
(rape in the first degree); section 130.40 (criminal sexual act in the
third degree); section 130.45 (criminal sexual act in the second
degree); section 130.50 (criminal sexual act in the first degree);
section 130.52 (forcible touching); section 130.53 (persistent sexual
abuse); section 130.55 (sexual abuse in the third degree); section
130.60 (sexual abuse in the second degree); section 130.65 (sexual abuse
in the first degree); section 130.66 (aggravated sexual abuse in the
third degree); section 130.67 (aggravated sexual abuse in the second
degree); section 130.70 (aggravated sexual abuse in the first degree);
section 130.91 (sexually motivated felony); section 130.95 (predatory
sexual assault); section 130.96 (predatory sexual assault against a
child); section 135.05 (unlawful imprisonment in the second degree);
section 135.10 (unlawful imprisonment in the first degree); section
135.60 (coercion in the second degree); section 135.65 (coercion in the
first degree); section 140.20 (burglary in the third degree); section
140.25 (burglary in the second degree); section 140.30 (burglary in the
first degree); section 145.00 (criminal mischief in the fourth degree);
section 145.05 (criminal mischief in the third degree); section 145.10
(criminal mischief in the second degree); section 145.12 (criminal
mischief in the first degree); section 145.14 (criminal tampering in the
third degree); section 215.50 (criminal contempt in the second degree);
section 215.51 (criminal contempt in the first degree); section 215.52
(aggravated criminal contempt); section 240.25 (harassment in the first
degree); subdivision one, two or four of section 240.30 (aggravated
harassment in the second degree); aggravated family offense as defined
in this section or any attempt or conspiracy to commit any of the
foregoing offenses where the defendant and the person against whom the
offense was committed were members of the same family or household as
defined in subdivision one of section 530.11 of the criminal procedure
law.
3. The person against whom the current specified offense is committed
may be different from the person against whom the previous specified
offense was committed and such persons do not need to be members of the
same family or household.
Aggravated family offense is a class E felony.
§ 530.11 Procedures for family offense matters.
1. Jurisdiction. The family court and the criminal courts shall have
concurrent jurisdiction over any proceeding concerning acts which would
constitute disorderly conduct, harassment in the first degree,
harassment in the second degree, aggravated harassment in the second
degree, sexual misconduct, forcible touching, sexual abuse in the third
degree, sexual abuse in the second degree as set forth in subdivision
one of section 130.60 of the penal law, stalking in the first degree,
stalking in the second degree, stalking in the third degree, stalking in
the fourth degree, criminal mischief, menacing in the second degree,
menacing in the third degree, reckless endangerment, strangulation in
the first degree, strangulation in the second degree, criminal
obstruction of breathing or blood circulation, assault in the second
degree, assault in the third degree, an attempted assault, identity
theft in the first degree, identity theft in the second degree, identity
theft in the third degree, grand larceny in the fourth degree, grand
larceny in the third degree or coercion in the second degree as set
forth in subdivisions one, two and three of section 135.60 of the penal
law between spouses or former spouses, or between parent and child or
between members of the same family or household except that if the
respondent would not be criminally responsible by reason of age pursuant
to section 30.00 of the penal law, then the family court shall have
exclusive jurisdiction over such proceeding. Notwithstanding a
complainant’s election to proceed in family court, the criminal court
shall not be divested of jurisdiction to hear a family offense
proceeding pursuant to this section. For purposes of this section,
“disorderly conduct” includes disorderly conduct not in a public place.
For purposes of this section, “members of the same family or household”
with respect to a proceeding in the criminal courts shall mean the
following:
(a) persons related by consanguinity or affinity;
(b) persons legally married to one another;
(c) persons formerly married to one another regardless of whether they
still reside in the same household;
(d) persons who have a child in common, regardless of whether such
persons have been married or have lived together at any time; and
(e) persons who are not related by consanguinity or affinity and who
are or have been in an intimate relationship regardless of whether such
persons have lived together at any time. Factors the court may consider
in determining whether a relationship is an “intimate relationship”
include but are not limited to: the nature or type of relationship,
regardless of whether the relationship is sexual in nature; the
frequency of interaction between the persons; and the duration of the
relationship. Neither a casual acquaintance nor ordinary fraternization
between two individuals in business or social contexts shall be deemed
to constitute an “intimate relationship”.
2. Information to petitioner or complainant. The chief administrator
of the courts shall designate the appropriate probation officers,
warrant officers, sheriffs, police officers, district attorneys or any
other law enforcement officials, to inform any petitioner or complainant
bringing a proceeding under this section before such proceeding is
commenced, of the procedures available for the institution of family
offense proceedings, including but not limited to the following:
(a) That there is concurrent jurisdiction with respect to family
offenses in both family court and the criminal courts;
(b) That a family court proceeding is a civil proceeding and is for
the purpose of attempting to stop the violence, end family disruption
and obtain protection. That referrals for counseling, or counseling
services, are available through probation for this purpose;
(c) That a proceeding in the criminal courts is for the purpose of
prosecution of the offender and can result in a criminal conviction of
the offender;
(d) That a proceeding or action subject to the provisions of this
section is initiated at the time of the filing of an accusatory
instrument or family court petition, not at the time of arrest, or
request for arrest, if any;
(f) That an arrest may precede the commencement of a family court or a
criminal court proceeding, but an arrest is not a requirement for
commencing either proceeding.
(h) At such time as the complainant first appears before the court on
a complaint or information, the court shall advise the complainant that
the complainant may: continue with the proceeding in criminal court; or
have the allegations contained therein heard in a family court
proceeding; or proceed concurrently in both criminal and family court.
Notwithstanding a complainant’s election to proceed in family court, the
criminal court shall not be divested of jurisdiction to hear a family
offense proceeding pursuant to this section;
(i) Nothing herein shall be deemed to limit or restrict complainant’s
rights to proceed directly and without court referral in either a
criminal or family court, or both, as provided for in section one
hundred fifteen of the family court act and section 100.07 of this
chapter;
2-a. Upon the filing of an accusatory instrument charging a crime or
violation described in subdivision one of this section between members
of the same family or household, as such terms are defined in this
section, or as soon as the complainant first appears before the court,
whichever is sooner, the court shall advise the complainant of the right
to proceed in both the criminal and family courts, pursuant to section
100.07 of this chapter.
3. Official responsibility. No official or other person designated
pursuant to subdivision two of this section shall discourage or prevent
any person who wishes to file a petition or sign a complaint from having
access to any court for that purpose.
4. When a person is arrested for an alleged family offense or an
alleged violation of an order of protection or temporary order of
protection or arrested pursuant to a warrant issued by the supreme or
family court, and the supreme or family court, as applicable, is not in
session, such person shall be brought before a local criminal court in
the county of arrest or in the county in which such warrant is
returnable pursuant to article one hundred twenty of this chapter. Such
local criminal court may issue any order authorized under subdivision
eleven of section 530.12 of this article, section one hundred
fifty-four-d or one hundred fifty-five of the family court act or
subdivision three-b of section two hundred forty or subdivision two-a of
section two hundred fifty-two of the domestic relations law, in addition
to discharging other arraignment responsibilities as set forth in this
chapter. In making such order, the local criminal court shall consider
the bail recommendation, if any, made by the supreme or family court as
indicated on the warrant or certificate of warrant. Unless the
petitioner or complainant requests otherwise, the court, in addition to
scheduling further criminal proceedings, if any, regarding such alleged
family offense or violation allegation, shall make such matter
returnable in the supreme or family court, as applicable, on the next
day such court is in session.
5. Filing and enforcement of out-of-state orders of protection. A
valid order of protection or temporary order of protection issued by a
court of competent jurisdiction in another state, territorial or tribal
jurisdiction shall be accorded full faith and credit and enforced as if
it were issued by a court within the state for as long as the order
remains in effect in the issuing jurisdiction in accordance with
sections two thousand two hundred sixty-five and two thousand two
hundred sixty-six of title eighteen of the United States Code.
(a) An order issued by a court of competent jurisdiction in another
state, territorial or tribal jurisdiction shall be deemed valid if:
(i) the issuing court had personal jurisdiction over the parties and
over the subject matter under the law of the issuing jurisdiction;
(ii) the person against whom the order was issued had reasonable
notice and an opportunity to be heard prior to issuance of the order;
provided, however, that if the order was a temporary order of protection
issued in the absence of such person, that notice had been given and
that an opportunity to be heard had been provided within a reasonable
period of time after the issuance of the order; and
(iii) in the case of orders of protection or temporary orders of
protection issued against both a petitioner, plaintiff or complainant
and respondent or defendant, the order or portion thereof sought to be
enforced was supported by: (A) a pleading requesting such order,
including, but not limited to, a petition, cross-petition or
counterclaim; and (B) a judicial finding that the requesting party is
entitled to the issuance of the order which may result from a judicial
finding of fact, judicial acceptance of an admission by the party
against whom the order was issued or judicial finding that the party
against whom the order was issued had given knowing, intelligent and
voluntary consent to its issuance.
(b) Notwithstanding the provisions of article fifty-four of the civil
practice law and rules, an order of protection or temporary order of
protection issued by a court of competent jurisdiction in another state,
territorial or tribal jurisdiction, accompanied by a sworn affidavit
that upon information and belief such order is in effect as written and
has not been vacated or modified, may be filed without fee with the
clerk of the court, who shall transmit information regarding such order
to the statewide registry of orders of protection and warrants
established pursuant to section two hundred twenty-one-a of the
executive law; provided, however, that such filing and registry entry
shall not be required for enforcement of the order.
6. Notice. Every police officer, peace officer or district attorney
investigating a family offense under this article shall advise the
victim of the availability of a shelter or other services in the
community, and shall immediately give the victim written notice of the
legal rights and remedies available to a victim of a family offense
under the relevant provisions of the criminal procedure law, the family
court act and the domestic relations law. Such notice shall be prepared
in Spanish and English and if necessary, shall be delivered orally, and
shall include but not be limited to the following statement:
“If you are the victim of domestic violence, you may request that the
officer assist in providing for your safety and that of your children,
including providing information on how to obtain a temporary order of
protection. You may also request that the officer assist you in
obtaining your essential personal effects and locating and taking you,
or assist in making arrangements to take you, and your children to a
safe place within such officer’s jurisdiction, including but not limited
to a domestic violence program, a family member’s or a friend’s
residence, or a similar place of safety. When the officer’s jurisdiction
is more than a single county, you may ask the officer to take you or
make arrangements to take you and your children to a place of safety in
the county where the incident occurred. If you or your children are in
need of medical treatment, you have the right to request that the
officer assist you in obtaining such medical treatment. You may request
a copy of any incident reports at no cost from the law enforcement
agency. You have the right to seek legal counsel of your own choosing
and if you proceed in family court and if it is determined that you
cannot afford an attorney, one must be appointed to represent you
without cost to you.
You may ask the district attorney or a law enforcement officer to file
a criminal complaint. You also have the right to file a petition in the
family court when a family offense has been committed against you. You
have the right to have your petition and request for an order of
protection filed on the same day you appear in court, and such request
must be heard that same day or the next day court is in session. Either
court may issue an order of protection from conduct constituting a
family offense which could include, among other provisions, an order for
the respondent or defendant to stay away from you and your children. The
family court may also order the payment of temporary child support and
award temporary custody of your children. If the family court is not in
session, you may seek immediate assistance from the criminal court in
obtaining an order of protection.
The forms you need to obtain an order of protection are available from
the family court and the local criminal court (the addresses and
telephone numbers shall be listed). The resources available in this
community for information relating to domestic violence, treatment of
injuries, and places of safety and shelters can be accessed by calling
the following 800 numbers (the statewide English and Spanish language
800 numbers shall be listed and space shall be provided for local
domestic violence hotline telephone numbers).
Filing a criminal complaint or a family court petition containing
allegations that are knowingly false is a crime.”
The division of criminal justice services in consultation with the
state office for the prevention of domestic violence shall prepare the
form of such written notice consistent with provisions of this section
and distribute copies thereof to the appropriate law enforcement
officials pursuant to subdivision nine of section eight hundred
forty-one of the executive law.
Additionally, copies of such notice shall be provided to the chief
administrator of the courts to be distributed to victims of family
offenses through the criminal court at such time as such persons first
come before the court and to the state department of health for
distribution to all hospitals defined under article twenty-eight of the
public health law. No cause of action for damages shall arise in favor
of any person by reason of any failure to comply with the provisions of
this subdivision except upon a showing of gross negligence or willful
misconduct.
7. Rules of court regarding concurrent jurisdiction. The chief
administrator of the courts, pursuant to paragraph (e) of subdivision
two of section two hundred twelve of the judiciary law, shall promulgate
rules to facilitate record sharing and other communication between the
criminal and family courts, subject to applicable provisions of this
chapter and the family court act pertaining to the confidentiality,
expungement and sealing of records, when such courts exercise concurrent
jurisdiction over family offense proceedings.