Assault Charges with Non-Cooperating Victim

[aravilar]

My question involves criminal law for the state of: New York

Background: There was a cross-complaint between a male and female living together, where the DA's office declined to prosecute the female (how lovely sexism in the name of equality is) and the female has chosen to be an un-cooperating victim. Unfortunately, the male had unsoundly chosen to not listen to the (selected) wisdom of the Cosa Nostra ("keep your mouth shut") and opened his mouth. Going for him are the lack of an arrest record, no prior complaints, a long-term relationship, and very shoddy police work.

Q1. What is the situation of the male in terms of chances of a conviction?

Q1a. If there is a conviction, what are the expected sentencing results?

Q2. Is there significant value in retaining a private attorney over the public defender?

Q3. Assume the male is acquitted (or charges dismissed with/without prejudice), is there a significant chance of the female being prosecuted? (Assume the unwillingness of the male of cooperate.)

Q4. What exactly is involved in expunging a record?

[Mr. Knowitall]

So you're basically stating that the man battered the woman, confessed to the police, and is now angry that he got charged and she did not? He thinks its sexist that he's charged with a crime he confessed to committing?

You didn't share anything about what happened other than snark about "the system", so if you want to know what's likely to happen in court you either need to tell us something about the incident and this person's criminal history, or you need to tell him to consult a lawyer. He should ask about possible deferral of his conviction, and should not expect expungement under New York law.

[aravilar]

So you're basically stating that the man battered the woman, confessed to the police, and is now angry that he got charged and she did not? He thinks its sexist that he's charged with a crime he confessed to committing?

You didn't share anything about what happened other than snark about "the system", so if you want to know what's likely to happen in court you either need to tell us something about the incident and this person's criminal history, or you need to tell him to consult a lawyer. He should ask about possible deferral of his conviction, and should not expect expungement under New York law.

Are you arguing that in a case with a male and female cross-complaintants, ceteris paribus, that the ADA would even come close to a random choice for prosecution? The ADA picks the male because it's easier to convict a male defendant than to convict a female one, simply because of social perceptions. Being discriminated against on the basis of gender is precisely the definition of sexism.

You didn't even bother to read the full post.

tell us something about...this person's criminal history

Going for him are the lack of an arrest record, no prior complaints

How do you have a criminal history without an arrest record and no prior complaints?

As a closing comment, no, he didn't "batter" the woman. Battery is a legal conclusion. This, of course, goes hand in hand with the travesty of justice that is the domestic violence paradigm, guilty until proven innocent.

[cdwjava]

Unfortunately, the male had unsoundly chosen to not listen to the (selected) wisdom of the Cosa Nostra ("keep your mouth shut") and opened his mouth.

In other words, the male (you) admitted to the physical altercation? You may not call it "battery", but if you and she laid hands on each other against each other's will, then a battery was committed whether you want to call it that or not ... you just may not be convicted.

Q1. What is the situation of the male in terms of chances of a conviction?

No way to say - you provided zero details. Your attorney can give you a much better picture of that.

Q1a. If there is a conviction, what are the expected sentencing results?

What specific code sections are you charged with?

I imagine jail, counseling, fines, and probation are all among the possibilities.

Q2. Is there significant value in retaining a private attorney over the public defender?

In most jurisdictions you cannot obtain a public defender if you have the assets or income to pay for a private attorney. The advantage of a private attorney is that he or she will be more aggressive on your behalf and may do more for you ... after all, they will be getting paid by the hour. But, like any profession, there are good and bad attorneys both in provate practice and paid for by the public.

Q3. Assume the male is acquitted (or charges dismissed with/without prejudice), is there a significant chance of the female being prosecuted? (Assume the unwillingness of the male of cooperate.)

There is always a chance, but if they can't get a prosecution o fthe male, then why would they try to pursue the female half under the same fact set? I'd say the chances are slim.

Q4. What exactly is involved in expunging a record?

If you Google the term "expunge" and "New York" you will find a great many links to web sites and attorneys that have explanations of the law and process in varying degrees.

- Carl

[aravilar]

In other words, the male (you) admitted to the physical altercation? You may not call it "battery", but if you and she laid hands on each other against each other's will, then a battery was committed whether you want to call it that or not ... you just may not be convicted.


No way to say - you provided zero details. Your attorney can give you a much better picture of that.


What specific code sections are you charged with?

I imagine jail, counseling, fines, and probation are all among the possibilities.


In most jurisdictions you cannot obtain a public defender if you have the assets or income to pay for a private attorney. The advantage of a private attorney is that he or she will be more aggressive on your behalf and may do more for you ... after all, they will be getting paid by the hour. But, like any profession, there are good and bad attorneys both in provate practice and paid for by the public.


There is always a chance, but if they can't get a prosecution o fthe male, then why would they try to pursue the female half under the same fact set? I'd say the chances are slim.


If you Google the term "expunge" and "New York" you will find a great many links to web sites and attorneys that have explanations of the law and process in varying degrees.

- Carl

Thanks for the response. I'm more curious in gauging how this forum responds in comparison to legal professionals than anything else.

And, the appropriate term is not "battery" because, again, it is a legal conclusion and the objective of the trial is to determine the veracity of that charge. IIRC, there is a substantive objection in trial regarding this specific issue.

[cdwjava]

Thanks for the response. I'm more curious in gauging how this forum responds in comparison to legal professionals than anything else.

And, the appropriate term is not "battery" because, again, it is a legal conclusion and the objective of the trial is to determine the veracity of that charge. IIRC, there is a substantive objection in trial regarding this specific issue.

If you say so ... rather semantic, if you ask me. I hear the term frequently used in court without objection. As defined in my state, "A battery is any willful and unlawful use of force or violence upon the person of another." For there to be a LEGAL conclusion of battery - the CRIME of battery, you are correct. However, the term is often used in reference to its common meaning: "the act of battering or beating b : an offensive touching or use of force on a person without the person's consent" (from Merriam-Webster)

I notice that you also did not clarify whether you did, in fact lay hands on her against her will. Or, rephrased, did you batter her?

- Carl

[aravilar]

If you say so ... rather semantic, if you ask me. I hear the term frequently used in court without objection. As defined in my state, "A battery is any willful and unlawful use of force or violence upon the person of another." For there to be a LEGAL conclusion of battery - the CRIME of battery, you are correct. However, the term is often used in reference to its common meaning: "the act of battering or beating b : an offensive touching or use of force on a person without the person's consent" (from Merriam-Webster)

I notice that you also did not clarify whether you did, in fact lay hands on her against her will. Or, rephrased, did you batter her?

- Carl

I didn't do a point by point analysis of your response, did I? So in a neutral viewpoint, omission is insufficient to be a demonstration of the veracity of polar option.

No, there was no battery involved. Does that make you feel better?

[cdwjava]

No, there was no battery involved. Does that make you feel better?

So ... no allegation of hands on, no conflict, and no probable cause for an arrest?

I guess it was all a big misunderstanding and neither of you alleged an attack on the other.

If that is the case, I suspect that a dismissal is in your future.

- Carl