Criminal Justice Insider

Any criminal defense lawyer who has ever handled an arraignment for a crime of violence in a New York State criminal court can attest that a prosecutor will request, and a judge will nearly automatically grant, an order of protection in favor of the victim. An order of protection requires the defendant to stay away from a victim’s home and place of work as well as to refrain from contacting him or her either directly or through a third party. Such orders, which are issued in advance of any trial, are treated as little more than an afterthought that serves to protect the victim while the case wends its way through the criminal justice system.

While they seem trivial for a court, an order of protection can have very serious implications for the defendant. In a domestic violence case, a defendant may live with the victim and suddenly find themselves homeless. A defendant who is a co-parent with the victim may find unable to make child care arrangements or regularly see their children. Additionally, a defendant who used to regularly interact with a victim through work or social circles may find themselves unemployed or socially ostracized.

This is precisely what happened to Shamika Crawford. Ms. Crawford was accused of assaulting her domestic partner with whom she lived. While there had been an extensive history of violence between Ms. Crawford and the victim, Ms. Crawford was the lessee of the apartment where she and the victim lived and was the primary caregiver to her three children that also resided there. At arraignment, the Court issued a full order of protection barring her from the residence, which effectively dispossessed her and her children and imperiled her ability to continue to live in public housing. After several attempts to limit the scope of the order, Ms. Crawford petitioned for a writ of mandamus directing an evidentiary hearing on the necessity for and scope of the order of protection. Thereafter, the court limited the order and dismissed the petition as moot.

Despite her apparent victory, Ms. Crawford appealed on the ground that her due process rights had been violated and that, while the issue was moot as to her, the current procedure for issuing orders of protection posed a threat to due process for other members of the public. The Appellate Division, First Department agreed and heard the case despite the fact that it was moot as to Ms. Crawford citing an exception to the mootness doctrine.

In its decision, the appellate court found that prior to issuing an order of protection, the criminal court judge should have held an evidentiary hearing. The court further held that in any case where a defendant can make the case that the order of protection will result in an immediate and significant deprivation of a personal property interest, due process requires that the criminal court hold a prompt evidentiary hearing on the issue. The Court declined to specify the exact nature of the hearing, but noted the Criminal Procedure Law Sec. 530.12(1)(a) provides a list of some of the factors that should be evaluated and considered.

It has been anecdotally reported that defense lawyers have already begun moving criminal courts for “Crawford Hearings.” Going forward, criminal courts will be forced to critically evaluate whether a pre-trial order of protection is truly necessary rather than merely dispossessing a defendant of their home, work and family as a matter of course.

For more information on the topic discussed, contact:

• Adam M. Felsenstein  |  felsenstein@thsh.com  |  212-508-7533