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What happens when a service of an Order of Protection was invalid? Can the case be dropped for that?

New York, NY |

Said they gave it to me at 11am when I received it a 6pm. and they didn't give it to me in person, it was my neighbor.

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Attorney answers 3

Posted

The order of protection is not valid unless service is valid. That sounds like a defensible case.

Scott Gross
516-662-7995

This is not a solicitation nor is it legal advice. An attorney/client relationship has not been established. The Law Offices of Scott Gross, PC 631-456-2326 Scottgrosslaw.com

Asker

Posted

But now I have a criminal case about it in like 3,4 weeks. I spent 2 days in jail for that! I sent an email at 4pm and i only received the OP at 6pm and not from anyone official, it was my neighbor from downstairs. I have two witnesses.

Scott Evan Gross

Scott Evan Gross

Posted

You'd be surprised. It happens often. As a former domestic violence prosecutor I've seen this situation come up. It seems like you have a solid defense

Scott Evan Gross

Scott Evan Gross

Posted

You'd be surprised. It happens often. As a former domestic violence prosecutor I've seen this situation come up. It seems like you have a solid defense

Scott Evan Gross

Scott Evan Gross

Posted

You'd be surprised. It happens often. As a former domestic violence prosecutor I've seen this situation come up. It seems like you have a solid defense

Scott Evan Gross

Scott Evan Gross

Posted

You'd be surprised. It happens often. As a former domestic violence prosecutor I've seen this situation come up. It seems like you have a solid defense

Scott Evan Gross

Scott Evan Gross

Posted

You'd be surprised. It happens often. As a former domestic violence prosecutor I've seen this situation come up. It seems like you have a solid defense

Scott Evan Gross

Scott Evan Gross

Posted

You'd be surprised. It happens often. As a former domestic violence prosecutor I've seen this situation come up. It seems like you have a solid defense

Asker

Posted

well, I have my downstairs neighbor who got the paper given to her and another neighbor who was coming back from his job at that exact time and saw me getting the paperwork then... I guess that is a "solid defense" right? I mean, i won't even have to speak, i will only need them to speak right?

Scott Evan Gross

Scott Evan Gross

Posted

You will need an attorney to convey this information. The DA will not speak with you

Posted

Violations of the order of protection are not prosecutable as you were not properly served. That does not mean that you can't now be served properly and have the order enforced.

I hope you found this answer helpful and if so, please let me know by clicking the "Mark as Helpful" button at the bottom of this answer. It’s easy and appreciated. You can also choose a "best answer" if you wish. This is easy to do and greatly appreciated.

This advice is not meant to create an attorney-client relationship and is a general anwer to the question posed.

Asker

Posted

ok, but I got arrested because the OP got served in a invalid manner and that manner led me to be arrested. I never violated the OP after I got it. So, I got arrested for something I didn't do! Can't anything be done about this or they can just arrest me whenever they want for no reason?

Lawrence Allen Weinreich

Lawrence Allen Weinreich

Posted

It is not for no reason, The police don't determine the legality of service. They only know there is an OP which they are told is violated. If you can prove that you were not served (and some courts also require that you didn't know about the OP) then the violation should be dismissed.

Asker

Posted

Which violation? The case and accusations that are brought against me which are attached to that Order of Protection? Or just the Order of Protection itself?

Lawrence Allen Weinreich

Lawrence Allen Weinreich

Posted

The petition for the underlying order of protection is valid even if you are not served properly. Violations cannot be sustained until you are properly served.

Asker

Posted

And they have been sustained before I got served! That's my problem here. It isn't so much the fact that the OP got served in an invalid manner. The problem is that I got arrested as a result of this invalid service. I spent two days in jail because the person who serviced said they did in the morning when the person served my neighbor (the petitioner was present too, with that person) in the evening, an hour or two after I had sent the petitioner an email. My neighbor then went upstairs, knocked on my door and gave me the papers. I never got an Affidavit, I still don't. From the moment I received the papers I never contact the petitioner. Two days later, two detectives arrested me at my home. They then drove me to the petitioner's residence where they had the petitioner identify me. I learned the petitioner had called the detectives to arrest me. Even thought the petitioner knew I never violated the OP since the petitioner was present with the person serving the OP to my downstairs neighbor in the evening, at least 1 or 2 hours after my last contact. I then spent about 40 hours in jail, before meeting an attorney and being arraigned for something I didn't do... How can I NOT win this!?

Lawrence Allen Weinreich

Lawrence Allen Weinreich

Posted

You did not indicate that you received the Order of Protection from your neighbor. If he was over the age of 18 and not a party to the action that is service if he swears that he gave you the papers. They don't have to be served by law enforcement or a process server. If your neighbor hadn't given you the papers that would be different. You should check the court files to see what affidavit of service are contained therein. Discuss all this with your attorney.

Asker

Posted

So you are saying this was valid service? They gave the papers to my downstairs neighbor. The neighbor gave them to me in the evening, way after I had last tried to contact the petitioner. What is really wrong here is that I never got the OP in my hands until then. So, I wasn't aware of the OP and got arrested for breaching something I didn't know about. The petitioner who had me arrested knew I wasn't served until AFTER i had last tried to contact the petitioner. I have two witnesses who saw me receiving the OP from my neighbor in the evening. Needless to say that the petition attached is full of lies too... This person is only trying to hurt me as much as they can... and I have to say that they are achieving this...

Asker

Posted

I am not saying I wasn't served the papers since I got them that night. What I'm saying is that I got arrested for something I didn't do and that the petitioner knew I didn't do, yet had me arrested. Just evil.

Lawrence Allen Weinreich

Lawrence Allen Weinreich

Posted

The issue of what you did or didn't do will be decided by a judge. Unfortunately all it takes is the allegation of a violation to have you arrested. Of course if you can prove that the allegation was false and the person knew it you might be able to press charges for filing a false police report.

Asker

Posted

OK great, I will do that. But won't this be done whilst in court when the judge understands that this is what really happened? Won't the judge immediately convict or punish the petitioner for this?

Lawrence Allen Weinreich

Lawrence Allen Weinreich

Posted

No

Posted

The order of protection cannot be enforced if you we're not properly served.

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