The law, like learning English as a second language, can be confusing and seem unreasonable. The comedian, Gallagher, did a bit about the difficulties of English : “Why do they call them buildings when they’re already built? They ought to call them builts.”. Google him and watch the whole routine for the full impact. Sometimes the law only appears confused, but at other times it truly doesn’t make sense.
Law isn’t like an Apple product. You can’t rely upon being intuitive when using it. Knowledge, not common sense, is your friend in those cases.
Orders of Protection
The court can issue an order of protection (OP) on a temporary basis after a defendant is arrested and as a “permanent” order (of specific duration) at the end of a case if there is a finding of guilt (whether by plea or trial). Crimimal Procedure Law §§ 530.12 & 13 grants the courts this authority (https://codes.findlaw.com/ny/criminal-procedure-law/cpl-sect-530-12.html)
The typical circumstance goes something like this—- Jane hits Joe with an ashtray after learning he cheated on her. Jane is arrested and the court issues a temporary OP keeping Jane away from Joe.
Joe decides to go beg forgiveness and show up on Jane’s doorstep with a Mariachi band, roses, and a bottle of wine. Jane, feeling appropriately wooed, lets Joe into her home. Jane just committed the crime of Criminal Contempt in the 2nd degree in violation of Penal Law § 215.50 (3)…..a class A misdemeanor punishable by up to 1 year in jail. Joe, according to the law, did nothing wrong and is not subject to any charge for inducing Jane to violate the OP and so break the law.
This doesn’t sit well with many people. Joe should have to obey the OP meant to protect him. But he doesn’t. When this law was originally written, it was a crime for the protected person to seek out and have contact with the other person. That was changed fairly quickly when women were arrested for making contact with the persons accused of assaulting or harassing them. The majority of victims of domestic violence are, after all, women.
One would reasonably and intuitively assume that an OP designed to keep two people apart for the protection of one of them would have to be obeyed by both, and, there would be consequences for the person who violated the OP. Not so. In Case 1, young Mr. “T” (for “Too Much Testosterone”) was involved with two different young ladies. This led to an altercation when his diversification was discovered. After argument with one of them, Mr. T was charged with harassment. An OP was issued in favor of the young lady.
Mr. T, all of 19 years of age and befuddled at the umbrage taken by the young lady, sat in my office while I explained it to him. I also went over the rules about an OP. I cautioned him….. if the young lady comes to his door with a rose between her teeth and entreats him to reconcile, he needs to lock the door and call the police. She won’t get arrested, but his call to the minions of the law will show his good faith effort to obey the OP.
No more than a few hours after Mr. T left my office, the protected lady did come and knock on his door. She suggested they drive to a nearby state and go swimming. It was out of state so who would know? And there wouldn’t be anyone else around, so maybe more than a swim?
Having fulfilled their obligations to the primal urges fueled by teenage hormones, the happy-again couple was returning from their outing her car. A deputy puller them over. Her tail light was out.
After running a computer check on both the drive and the passenger, the deputy understood the driver was the protected party in an OP keeping Mr. T away from her. Mr. T was led off in handcuffs and charged with a crime. The driver went home with only a “fix it ticket” for the tail light.
The law does not require a protected party to obey the order that protects them. Yes, it would make sense to require them to honor that OP, but if you are protected party, you don’t have any restrictions imposed upon you. If you are the party barred from going near the alleged victim, do not go near the protected party. Do not have contact with them, directly or thru a third person. And if the protected party comes a’knockin’…..do NOT answer that knock, no matter how tempting. The law does not forbid that person from seeking contact with you, but you can be arrested for a crime if you respond to them.
Driving in the Dark
The obvious purpose of headlights is to help drivers see in the dark. If you reasonably assume the lights have to be on at all times when one is driving in the dark you would be wrong. NYS Vehicle and Traffic Law § 375 2(a) requires drivers to have their headlights on a half hour after sunset until a half hour before sunrise. In other words, you can drive in the dark without headlights for half an hour at either end of the night. https://codes.findlaw.com/ny/vehicle-and-traffic-law/vat-sect-375.html
Don’t ask me why. I have no bloody idea. It is a stupid law and needs to be changed. Requiring headlights to be on a half hour before sunset and after sunrise would make sense. That way, no one is driving in the dark.
In Case 2 a driver in a line of 5 cars was stopped because his was the only car without headlights on. He was arrested for DWI once the Trooper observed his demeanor and smelled his breath. For a DWI charge to stick, the reason for the stop has to be valid. If it is not, the case gets dismissed.
I cross-examined the Trooper at the pre-trial hearing to determine if the stop was legal. The Trooper stated the only reason he stopped my client was the lack of headlights. I asked the Trooper when a driver has to use headlights. He gave the common sense reply: “When it is dark.”
I then showed the Trooper a copy of VTL § 375 2(a) and asked him the same question. This time he gave the answer the law required, i.e. the driver was allowed to drive without lights for half an hour after sunset.
Me: “Trooper…..you are trained to make stops based on violations of the Vehicle and Traffic law, aren’t you?”
Trooper: “That’s right.”
Me: “Did you check what time sunset was before you started your shift the day you arrest my client?”
Trooper: “No”.
Me: “As you sit here today, do you know when sunset was on that day?”
Trooper: “No”.
Me: “I’m showing you a print out from Google Almanac. What time was sunset on the date you stopped my client?”
Trooper: “7:30 p.m.”
Me: “What time did you stop my client, sir?”
Trooper: “…..7:50 p.m.”
Me: “Isn’t it true that at the time you stopped my client it was legal for him to drive without headlights?”
Trooper: “I suppose so.”
And that, as they say, was that. Without a valid stop, the DWI charge against my client had to go away. On that day, at that hearing, the headlight law served my client well. I didn’t complain about it. But I still think it makes no sense. Why allow drivers to operate cars and trucks in the dark for 30 minutes…..or for any amount of time? It endangers lives.
Sticks and Stones….
We all remember the childhood rhyme about sticks and stones breaking bones by names not hurting us. Of course words don’t break bones, but they do hurt another part of us. The law recognizes this and make it illegal to call, email, text or otherwise communicate electronically with a threat. Threatening to cause physical harm in that way is Aggravated Harassment 2nd in violation of Penal Law § 240.30 (1). This is a class A misdemeanor punishable by up to 1 year in the county jail.
Before the former version of that statute was declared to be unconstitutional, merely calling a person and telling them they were ugly and their mother dressed them funny qualified as a crime. That bar has been raised in the new statute to require a threat of physical harm. Words can be the foundation of a crime.
Aggressive, harassing and threatening words can also constitute a “hate crime” if the illegal act is motivated by bias and prejudice based upon race, national origin, gender, sexual orientation, age, religious beliefs, disability, ancestry or color. Such was the issue in Case 3.
A customer at a store berated a cashier for some perceived slight to her consumer goddess status. The customer added some racial epithets and it became a hate crime. The customer became a defendant.
At trial, the defendant denied using any foul or racist language. On cross examination, the District Attorney questioned her about swearing. The defendant’s response was both humorous and convinced the jury to vote to convict. Her response to the DA’s questions was, “Hell, no….I don’t f—king curse.”
If you strike, shove or kick another and don’t cause an injury….no “substantial pain” or “physical impairment”, it is only a petty, non-criminal offense of simple Harassment 2nd in violation of Penal Law § 240. The maximum sentence is 15 days in jail, although fines are usually the preferred sentence.
I would much rather suffer the words of an antagonist than get slapped in the face. It seems to me these laws are backwards. Or at least unwanted physical contact whose intent is to convey aggression and cause some pain (if not substantial) should be considered as serious an offense as a spoken threat.
The defendant was convicted.
More to Come in Part 2………..