Queens County Bar Association
Martindale Hubbell - Distinguished 2023

The Difference Between No-Contact Orders, Protection Orders and Restraining Orders in Assault Cases

Interviewer: What are no-contact orders or protection orders or restraining orders, and how do they tie into assault charges?

Martin Kane: Again, that’s something that’s the same for all cases. In assault cases, if there’s any kind of a disposition where the defendant is not simply having the case dismissed, there will almost always be an order of protection. If the people are strangers or if sometimes even if not, the order of protection is what we call a full order of protection, meaning stay away from the person; do not have any contact with the person; don’t call them; don’t text them; don’t contact them through any third party, and you must avoid that person in any possible way. If you see them on the street, you’ll have to walk in the opposite direction. That’s called a full order of protection.

There Are Limited Orders Of Protection Which Simply State The Identity Of The Person Against Whom It Is Issued And The Restrictions Imposed

Additionally, there are what are called limited orders of protection, which simply state that the person against whom the order is issued can’t do any of the things that they couldn’t do anyway. You can’t harass them, you can’t hit them and you can’t kick them; all of the things that are really incumbent for anybody to follow are put into on a piece of paper in what’s called a limited order of protection. A limited order of protection really doesn’t cause any kind of restriction other than that the person who has the order against you really has the upper hand should anything happen in the future.

Typical Scenario Resulting In Assault Charges In The State Of New York

Interviewer: What is an example of a typical scenario involving an assault? For instance, like the time or place, would it be in a bar involving two individuals?

Martin Kane: A lot of them obviously happen at bars. Most assaults I think are with people who know each other, or as you say, they happen in bars or at parties where people have been drinking and things just seem to happen. But again, there is no one particular place. We see assaults of many, many different types, with many, many different people; each case is really an entity to itself. There really is no total pattern other than, as you say, there’s a larger number than normal in places where people are drinking. The same is true in places where people are in close contact with each other, as in a domestic situation where tempers can build up and things can happen.

How To Prove In Court That An Assault Charge Was Actually An Act Of Self Defense

Interviewer: What if I was arrested for assault and I thought that it was more of a self-defense? Is that going to be difficult to prove in court?

Martin Kane: Again, it depends on the circumstance. For instance, the first question I’m going to ask my client is, “What happened?” Then I’m going to want to know, “Were there any witnesses?” The DA has a great advantage when these cases are tried typically, that is, he has a complainant who has demonstrable injuries and, usually, the person being charged doesn’t have those demonstrable injuries. So, what the jury is seeing is a person who clearly was injured by a person who is not injured and is claiming that he acted in self-defense. So, you do start out with a tremendous disadvantage.

The Term Self-Defense Doesn’t Really Exist In the Law. The Actual Term Is Justification.

The first thing I want to know is, did you have any injuries that we can document? Secondly, were there any witnesses who saw what happened? Then, I want to know if what happened really does constitute self-defense. The term “self-defense” doesn’t really exist in the law. The right term is called “Justification”. In other words, there are certain times when you can cause injury to somebody but there is a justification, the most common being self-defense either of yourself or of some other individual. However, the use of force for “self defense” is very limited. For instance, the amount of force that you can use is limited to that which is necessary to protect yourself or somebody else. Secondly, before you can use deadly force, you have a duty to retreat. In other words, for you to use deadly force there can be no means of escape that you possibly have. Deadly force is really your last alternative. So, these are things that are difficult to establish. We’ve certainly done it in many cases, including murder cases, but it just doesn’t happen easily. You have to meet certain criteria and you have to have the means of proving it.

Contact The Law Office of Martin D. Kane at (718) 793-5700 to learn about your legal options.

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