New York  |  Criminal Law

Legal Question

Asked on: 5/07/13, 8:35 pm

I found out my crim defense attorney never put in any motions on my case or any requests for hearings when I was given a temp order of protection due to a false allegation charge, which was dismissed one year after I was put through a legal nightmare. I appeared in court 19x ; complaining witness never showed once. My attorney assured me he put in motions & requested for me to have a hearing re the ex-parte order of prot (stay away), which barred me from my home for 6 months. He said I couldn't have a hearing because the complaining witness didn't show up. So I had the order of protection on me for many months & never got a chance to speak. He reassured me also that he had put in order to vacate it. I paid him over $10,000 because I believed he had really done the work. I just found out from court there were no motions submitted on my case. When I did research re stay away ex-parte temp orders of protection, I found this:

As one treatise puts it: "The defendant is entitled to demand a prompt post-arraignment hearing on the need for conditions imposed by the order of protection excluding the defendant from the defendant's home or from contact with the defendant's family members." Elkins and Fosbinder, New York Law of Domestic Violence, 1:10.

In the leading case on the subject, People v Forman, the court stated: "requirements of due process do entitle a defendant to a prompt evidentiary hearing after the temporary order of protection excluding defendant from the home has been issued. . . . The importance of defendant's interest in his home, the severity of the deprivation imposed through exclusion from the home, and typically, the need to resolve conflicting issues of fact and credibility as to the underlying family conflict, require that a trial type hearing be provided. Presentation of witnesses and cross-examination are the most suitable means for assessment of veracity and credibility." People v Forman, 145 Misc2d 115, 546 NYS2d 755 (City Crim Ct 1989); Handling a Criminal Case in New York, 4:47.

What can i do? I feel as though I had no rights, never getting one chance to defend myself re the order of protection or even re the entire case. I never got a chance to go home during that entire time due to the order banning me from my residence. I feel l lost many rights and I was completely lied to by my attorney who I trusted.

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