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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 or

Deer Park, NY |
Filed under: Criminal defense

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 just found out from court there were no motions submitted on my case. What can i do?

Attorney Answers 3

Posted

Nothing. Its a matter of legal strategy. In addition, only pecuniary loss is recoverable in a legal malpractice case.

I am a former federal and State prosecutor and have been doing criminal defense work for over 16 years. I was named to the Super Lawyers list as one of the top attorneys in New York for 2012 and 2013. No more than 5 percent of the lawyers in the state are selected by Super Lawyers. Martindale-Hubbell has given me its highest rating - AV Preeminent - in the areas of Criminal Law, Personal Injury, and Litigation. According to Martindale-Hubbell”AV Preeminent is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence." Fewer than 8% of attorneys achieve an AV Preeminent rating. I also have the highest ranking – “superb” – on Avvo. Feel free to check out my web site and contact me. The above answer, and any follow up comments or emails is for informational purposes only and not meant as legal advice.

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Posted

But I thought I had a right at least to a hearing being that the order of protection barred me from my residence and it was a temporary ex-parte order. I never got a chance to present the truth/my side.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.

Asker

Posted

"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.

Posted

Not much. It seems as if the Order was dismissed anyways.

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But I thought I had a right at least to a hearing being that the order of protection barred me from my residence and it was a temporary ex-parte order. I never got a chance to present the truth/my side.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. Flag Asker Posted about 1 hour ago. "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.

Posted

Be grateful that it has been resolved, put the matter behind you and get on with your life. There is no cause of action.

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Asker

Posted

But I thought I had a right at least to a hearing being that the order of protection barred me from my residence and it was a temporary ex-parte order. I never got a chance to present the truth/my side.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. "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.

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