What Are My Rights If I Was Wrongly Arrested as a Domestic Violence Victim in New York?

Attorney Answer

Being arrested as the person police believe violated an order of protection, when you were actually the one being victimized, is a recognized and unfortunately not uncommon problem, and it is very much worth fighting rather than assuming the charges will stick.

When police respond to a domestic incident and both people are accused of an offense, New York's arrest statute, Criminal Procedure Law § 140.10, directs officers to try to identify and arrest the primary physical aggressor rather than simply arresting both people or whoever is easiest to charge. Officers are supposed to compare the extent of any injuries, consider any threats of future harm, look at any history of domestic violence between the parties that they can reasonably learn about, and consider whether someone acted defensively. When that assessment goes wrong, it can result in exactly the situation you describe: the victim ends up facing charges instead of, or along with, the actual aggressor.

Violating an order of protection in New York is generally charged as criminal contempt under Penal Law § 215.50, typically a class A misdemeanor, though it can become a felony charge if certain aggravating factors are present. What matters most is what you actually did. If the order named you as someone required to stay away and you were simply present when the other party showed up and started another incident, that is very different from you initiating contact or violating the order's terms yourself, and it is a defense worth raising clearly.

What to do now:

1. Get a criminal defense attorney as soon as possible, ideally one with domestic violence experience, before your next court date. If you cannot afford one, ask the court to appoint a public defender at arraignment. 2. Whether to write anything down is a decision for your lawyer, not one to make on your own. What you experienced may matter a great deal to your defense, but an account you prepare yourself is not protected by attorney-client privilege, can be seized or subpoenaed, and can be used to impeach you if your testimony later differs. Preserve the records that already exist — photographs, texts, medical records and any prior reports — and take the history to a local criminal defense attorney, asking whether and in what form they want it recorded. 3. Gather any evidence supporting your account, such as messages, photos of injuries, 911 call records, or witness contact information. 4. Do not discuss the facts of either incident with police or prosecutors without your attorney present. 5. If you hold an order of protection against the other party, tell your attorney immediately, since that fact is directly relevant to whether you could have violated anything.

This is general legal information, not legal advice. A local New York criminal defense attorney can review the actual charges and police reports and advise you on the best way to defend yourself.