Our firm represented a client charged with violating an order of protection obtained by an individual with whom the client had a longstanding, contentious history. The complaining witness and our client knew one another, and there was an ongoing financial dispute in which the complainant owed the client money. Prosecutors alleged that the client had appeared in the protected party’s presence in violation of a full stay-away order.
The allegation rested on a single identification by the complaining witness. He claimed that, at night, he observed our client sitting in the passenger seat of a moving car from more than 30 feet away while he was in front of house. According to the witness, the vehicle was in motion, the observation window was brief, and he was partially blocked by a tree and parked vehicles when he made the identification. There were no independent witnesses or additional evidence placing our client at the scene beyond this one account.
Despite these limitations, the prosecution initially sought a conviction for a class A misdemeanor and demanded that the client plead guilty and perform 100 hours of community service, in addition to accepting the long-term consequences of a criminal record, continued court involvement and a 5-year order of protection. We viewed this as an unreasonable demand given the quality of the identification evidence and the background between the parties.
We focused our defense on the reliability of the alleged identification and the witness’s potential bias. We highlighted the conditions under which the identification was supposedly made: nighttime lighting, a moving vehicle, significant distance, a very brief opportunity to observe, and the witness’s position behind an obstruction. We also underscored the parties’ prior history, including the outstanding debt owed to our client, as a factor the fact-finder would be entitled to consider in assessing credibility and motive.
Throughout the case, we announced ready for trial and prepared to select a jury, signaling that we were fully prepared to litigate the reliability of the identification and the complainant’s credibility in open court. As trial approached and we continued to press these issues, the prosecution reassessed its position. Immediately before jury selection, the district attorney’s office withdrew its misdemeanor plea and community-service demand and instead offered an adjournment in contemplation of dismissal (ACD) with a six-month term.
The client accepted the ACD rather than risk a trial on the original misdemeanor charge. Provided the client complied with the conditions during the adjournment period, the case would be dismissed and sealed, avoiding a conviction and long-term criminal record. While no specific outcome can ever be guaranteed and each case turns on its own facts, this matter demonstrates how a focused challenge to weak identification evidence, combined with a readiness to proceed to trial, can result in a substantially more favorable resolution in an order-of-protection prosecution.
