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Have ‘Orders of Protection’ become useless? - The Times of Wayne County - Waynetimes.comHave ‘Orders of Protection’ become useless? - The Times of Wayne County - Waynetimes.com
Perhaps you are involved in a domestic situation, a break-up, or divorce is on the horizon, or perhaps the family member, significant other person, needs time to reflect on his or her actions.
Following an arrest, the arraigning judge, either through a request by the victim, or by the nature of the offense, can issue a Court Order of Protection. The judge may also issue the order as temporary, or permanent after the case is settled.
Ideally, an Order of Protection—commonly referred to as a restraining order—would keep a batterer/abuser from contacting, threatening or harming the protected party. Unfortunately, offenders don’t always abide by the terms of protective orders.
It is, however, estimated that close to 50% of defendants violate the conditions of the court orders in one way, or another.
Court Orders of Protection, range from ‘Refrain From Conduct’, or a complete ‘Stay Away’ where the defendant must:
• ‘Refrain’ from communication or any other contact by mail, telephone, e-mail, voice-mail or other electronic or any other means with the protected party, or parties. In other words, a complete STAY AWAY order.
Another ‘Refrain’ from Order of Protection bars the defendant:
• Refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats or any criminal offense or interference with the victim or victims of, or designated witnesses to, the alleged offense and such members of the family or household of such victim(s) or witness(es)
• Refrain from intentionally injuring or killing without justification the following companion animal(s) (pet(s)) [specify type(s) and, if available, names of the individuals.
In simplified terms, the defendant may still live with/see the victim(s) but cannot continue the conduct that resulted in the arrest.
Either version of the Court Order may result in the judge requiring:
• Surrender any and all handguns, pistols, revolvers, rifles, shotguns and other firearms owned or possessed and not obtaining any further guns or other firearms.
In most domestic arrests the Judge will evoke either a full stay away, or ‘refrain’ from conduct.
All too often police and courts see a continued level of conduct in domestic situations. Either the victim, or defendant feels the relationship is more important to the court order, or a period of time has passed and ‘all is well’, but the court and police do not make exceptions.
Police may make an arrest for Violation of a Court Order of Protection, if the domestic abuse continues, or if the defendant is caught in the presence of the victim.
Then comes the penalty phase of a domestic violation. The form signed by the victim at the time of the issuance of a Order of Protection outlines:
‘Notice: your failure to obey this order may subject you to mandatory arrest and criminal prosecution, which may result in your incarceration for up to seven years for contempt of court. If this is a temporary order of protection and you fail to appear in court when you are required to do so, this order may be extended in your absence and then continues in effect until a new date set by the court.’
The defendant is guilty of Misdemeanor Criminal Contempt in the Second Degree, when he/she violates the conditions outlined in the Order of Protection. This could lead to a fine and or jail sentencing.
If the defendant continues to violate the conditions of the court order, then he/she can be arrested and found guilty of the more serious crime of Felony Criminal Contempt in the First Degree. Again, this could lead to more time behind bars for the defendant.
Unfortunately, for years, the courts have themselves refrained from truly enforcing penalties for either the misdemeanor first violation, or the continued conduct by the defendants violations of court orders. One Wayne County judge admitted this was in part due to the ‘male-dominated’ legal system.
This has been more prominent since NewYork States ‘Bail Reform’.
The original purpose of the bail reform in NewYork was to reduce the number of people sitting in jail waiting for trial because they couldn’t pay their bail. Some public officials wanted the law to completely eliminate cash bail (a deposit refundable if the defendant attends their court date) entirely.
It was estimated originally that the new bail laws would have reduced the jail population by at least 40 percent. However, the bail reform in NewYork was heavily criticized before and after it went into effect because many claimed it would contribute to an increase in crime. There appeared to be a rise in the crimerate following the new laws, though the data for that has been disputed. Added amendments to the original Bail Reform added more situations where local judges could impose cash bails.
This never really happened as ‘centralized arraignments’ replaced the local court appearances. Judges seemed to become ‘bail shy’ in first appearance, or repeat offenders as local judges lost the discretion to impose bail, or jail.
Crimes that are eligible for cash bail include:
• Burglary in the second degree (felony) sex trafficking (felony), sex trafficking of a child (felony)
• Any crime that has allegedly caused the death of another person
• Promoting an obscene sexual performance by a child (felony)
• Criminal Obstruction of breathing or blood circulation (misdemeanor), strangulation in the second degree (felony), unlawful imprisonment in the first degree (felony)
• Vehicular assault in the first degree (felony), aggravated vehicular assault (felony)
• Money laundering in support of terrorism in the fourth and fifth-degree (felonies)
• Assault in the third degree (misdemeanor), arson in the third degree when charged as a hate crime (felony)
•Aggravated assault on a person less than 11 years old (felony), criminal possession of a weapon on school grounds (felony)
• Grand larceny in the first degree (felony), enterprise corruption (felony), money laundering in the first degree (felony)
• Failure to register as a sex offender (felony), endangering the welfare of a child when designated as a level three sex offender (misdemeanor)
• Bail jumping third degree (misdemeanor), second degree (felony), first degree (felony), escape in the third degree (misdemeanor), second degree (felony), and first degree (felony)
• Any felony offense committed with serving a sentence of probation or while released to post-release supervision
• Any felony committed by a persistent felony offender
• Any felony or class A misdemeanor involving harm to an identifiable person or property committed while charges are pending on another felony or class A misdemeanor involving the same reasons
Wayne County District Attorney, Mike Calarco added that judges also have the ability, under the revisions to the bail reform in NewYork, to set a cash bail based on the defendant’s legal history and status, rather than simply the crime committed. They currently can only set bail, however, based on their likelihood to attend court appearances, not on their likelihood to commit more crimes. This, along with the list, increases the number of cases where bail can be used. Unfortunately bail in the Wayne County and other NewYork jurisdictions has not materialized in most cases, often ignoring bail requests.
What police agencies were faced with was scores of “Failure to Appear” defendants. This was especially prominent in domestic abuse cases. Local agencies have reported multiple arrests of the same defendant failing to appear in court time after time after their arrests on bench warrants.
Once arrested, the defendant is often simply released without penalty of his/her actions.
Last week, State Police out of Wolcott arrested Joseph W. Scott, age 33 of 3463 Route 89 in Wolcott.
Scott was charged with two counts each of Felony Criminal Contempt in the First Degree and Felony Aggravated Family Offense.
It is alleged that Scott attempted to contact and ex-girlfriend in Violation of standing Court Orders of Protection in the Town of Savannah.
It is also alleged that he went to the ex-girlfriend’s place of employment to talk to her.
Scott, who has an extensive police/court record for similar conduct and has been convicted prior to these arrests was taken to centralized arraignment and released on pre-trail to appear in both Savannah and Wolcott Village Courts on the current charges.
Even though Scott has served time for past felony level violations of court orders, he continues to his conduct.
A person is guilty of Aggravated Family Offense when he or she commits a misdemeanor or he/she has been convicted of one or more specified offenses within the immediately preceding five years.
Another case recently involved Jon T. Fontaine, age 38, of 2149 East Avenue, Apt. A in the Town of Brighton. Fontaine violated Court Orders of Protection and was charged with two counts of Criminal Contempt in the Second Degree after he allegedly was caught on surveillance camera driving a pick up truck through the back yard of a residence on Frey Road in Macedon. He was taken to centralized arraignment and released with appearance tickets for Macedon Town Court.
This past Monday, he reportedly, violated a Court Order of Protection in the Town of Canandaigua, forcefully entering the residence of a protected party and assaulted that person causing physical injury.
Fontaine was charged with Burglary in the First Degree (B Felony). In that case, he was held on no bail due to having two prior felony convictions.
Wayne County Sheriff Barry Virts stated that the whole legal system is based upon a defendant telling the truth and abiding by court orders. Unfortunately the system often does not handle well those who do not.
One Wayne County judge, talking to the Times, with the promise of anonymity, stated that all too often “People don’t take it (Court Orders) seriously because there is no punishment. It is a piece of paper, it means nothing. In most town courts, bail reform is nonsense.” He also sated that bail and bail revocation could and should be used for repeat defendant conduct.
Over the decades the results of ignoring Court Orders of Protections have led to injuries and even death for protected parties. In December of 2014, Aaron Bell, with a criminal past reportedly shot a woman and her son in Newark and totally ignored orders of protection, something he had broken more that once.
There are numerous cases where the victims have been injured, frightened, or killed by defendants ignoring court orders of protection, yet the attitude of the legal system has failed to change, or worsened over the past decade.
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