Most temporary orders of protection say that the respondent must not assault, menace, or harass you, but you can ask for additional terms. You must tell the petition clerk specifically what you would like the Judge to order. Some of these things may be in the temporary order and some may be in the final order. You can ask for:. The order can be specific, such as, ordering the respondent to stop calling you at work. It does not matter that the home is not in your name.
You do not have to show how much money the respondent has or earns.
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Since the child support is only temporary, you will still have to file a separate petition for child support. You can do this on the 1st floor of the Family Court. The case will be heard by a Support Magistrate in about two or three months, but you can get support back to the date you filed the petition.
You can get a five year order of protection if there are "aggravating circumstances", or if the court finds there was a violation of an order of protection. Aggravating circumstances exist where there is physical injury, the respondent used a weapon or other dangerous instrument against you, there is a history of repeated violations of prior orders of protection, the respondent has been convicted of crimes committed against you in the past, there is exposure of any family or household member to physical injury, or other behaviors that pose a danger to you, your family or other household members.
A temporary order of protection is issued on the day you file for an order of protection before the respondent is served with the papers. It only lasts until the next time that you are in court. The court usually will extend the temporary order at each court date until the case is over. If a final order of protection is issued, this occurs at the end of the case after the Judge finds that a family offense was committed or the respondent agrees. A final order lasts for two or five years. A final order of protection can also include:. You will have to prove the value of what was damaged. This order will last for as long as the order of protection does.
You may also file a separate petition for custody. The clerk will help you file a petition for custody. Either parent can file a petition for final custody at any time. The court can specify times for the visits and safe places to exchange the child, such as a police precinct or friend's home. If necessary, the court can order supervised visits. The visitation order will last only as long as the order of protection.
Either parent may file a separate petition for visitation at any time. However, the court may direct that a separate petition be filed to determine this issue. After the clerk drafts the petition, you will wait to see a Judge on the second floor. The Judge will review the petition and determine whether there is good cause to issue you a temporary order of protection. The Judge will order a summons to serve on the respondent and a date to come back. The Judge may ask you questions about what you said in the petition.
The Judge will decide whether to issue a temporary order based on your petition and answers to the questions. Tell the Judge if you want the respondent excluded or need temporary child support. Even if the Judge does not issue the temporary order of protection, you may get one later. If you can't afford a lawyer, you can ask the Judge to appoint one for you. The Judge will ask you how you want to serve the papers. The different options are listed below. The court may issue a warrant directing that the respondent be brought immediately before the Family Court.
Warrants are issued under special circumstances, such as when your safety or the safety of your child is at risk. After you have seen the Judge, you must wait to pick up your papers in a designated waiting area. You will receive your copies of the temporary order of protection, if one has been issued. You will also receive a summons and copy of the petition for the respondent, if you are arranging service on the respondent. You can not get a final order of protection unless the respondent has received notice of the case. The summons with notice, petition for an order of protection and temporary order of protection must be personally served handed to the respondent.
Any person over eighteen years old, except you, may serve these papers. The police, the NYC sheriff, a friend or relative can serve the papers. You can also hire a process server. You the petitioner may never serve the papers yourself. Papers for an order of protection may be served any day of the week at any time of the day or night.
There are two ways to have the Sheriff serve the papers. You can take the papers to the Sheriff's office in the county that you filed your petition in, or the Court can direct the Sheriff to serve the papers. If the court directs the Sheriff to serve, the Court will forward the papers to the Sheriff's office. If the Sheriff does the service of the papers, they will send the Court the proof of service or if they are unable to locate the respondent the proof of attempted service.
The order of protection is not in effect until it has been served. Moreover, Bolander said he did not remember anyone on the list of five names and addresses which the government claims to have gotten from a computer file called ADDRESS. Bolander also acknowledges in the interview that he was scanning in child pornographic pictures to computer media in the time frame.
Most of the original uncompressed alleged CP images involved in this case have computer file dates of and Microsoft Word lists the author of the letter as Mikel Bolander. Moreover, Mr. Benedict has documentary proof that he did not buy and return a scanner over the August 13 weekend and he did not even own an IBM DOS- based computer at that time.
This evidence would point to Bolander, not Benedict, as the source of the scanned images and the naming convention which catalogued them. The report of computer expert Stan Kremen, attached as Exhibit 2, demonstrates serious questions both as to the integrity of the evidence on which the government relies and on the conclusions that can be validly drawn from that evidence.
DCN b is the tape backup allegedly mailed to Bolander from Rochester on January 25, , containing 87 images alleged to be child pornography in archived files. In examining this tape, Mr. Kremen concludes that Benedict could not have created the archive files containing the images, and that he never viewed the images themselves. The government contends that it contains a letter MB11 which refers to a scanner and ordering a tape drive, both of which are found with Mr.
There are also alleged to be two archived pornographic images on the diskette. Kremen says with respect to DCN 11A that the disk appeared to contain no data, but had only kb free disk space. He concludes that the data may have been destroyed by government forensics experts. At any rate, a sector-by sector analysis of the diskette produced names of the two allegedly pornographic image files the names they had in their archived version but no readable image data and not one but two copies of the text of MB11, with slight variations between the two, indicating that they had been edited.
This is significant because the copy the government seized from the mailbox had never reached Bolander. Finally, and perhaps most significantly, Mr. Kremen examines the crucial MB letter. This is the letter the government contends shows Benedict scanning in a lot of images with a scanner which he had bought on Friday of the weekend of August 14 and returned on Monday. It sets forth the naming convention for the files, e. CFLEWL01 which naming convention is found on the unarchived version of many of the image files in the case, which have file creation dates of and What Mr.
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The earliest of these, dated , was created in Microsoft Word, Version 2. The author is listed as Bolander. Moreover, the presence of a later, slightly different version saved as a plain text file indicates to Kremen that the letter was created and later edited by Bolander. This implicates the integrity of all the electronic evidence in this case.
The following facts are attested in the record and in Mr. This case, indicted in , was set for trial first in October of , which trial was postponed due to medical problems of defense counsel. After substitution of counsel and additional discovery claims were litigated, the case was set for trial for June 19, By letter of March 30, , Defense counsel requested that the trial be postponed until the discovery problems were worked out, but the Court remained firm in the trial date.
As the trial date approached, defendant made arrangements to view the evidence which had been seized from his house in February of , including many private papers and computer media.
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The 27 Postal Service mail bins removed from his house had been stored in the basement of the post office in Geneva, N. On June 1, Defendant traveled to Buffalo to look at the evidence, accompanied by an associate of Donald Thompson. Benedict found to his horror that every single one of the computer media had suffered water damage. None of them could be read. He had been relying on this evidence to show his innocent correspondence with Bolander and others with whom he traded computer games. Benedict, with the consent of Paul Blum of the Postal Inspectors, tried several techniques for getting the disks to be read, including water and Windex and taking the cases apart.
Nothing worked. Many of the disks were stuck together in a mass. He was there approximately three hours. He started to leave, intending to send someone back the next day to take pictures. Throughout the day, Mr.
Littlefield was in phone contact with Mr. Blum getting information on the progress of Mr. As he was leaving the room, Mr. Blum, under specific instructions from Mr. Littlefield, conducted a search of Mr. Benedict and allegedly pulled from his shirt pocket two of the floppy disk interiors. Blum let Mr. Benedict go home with counsel. The following day, Mr. Littlefield arranged to have Mr. Benedict arrested.
Though Mr. Benedict had been out on personal recognizance for the underlying offense for over two years without any issues, Mr. Littlefield procured a judge to come in on Saturday and sign an arrest warrant, then insisted that Mr. Benedict turn himself in on it knowing that there would be no judge available to bail him out over the weekend. As a result, Mr.
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Benedict spent two days in jail two weeks before trial was supposed to start. Upon hearing that her son had been arrested, Mr. This required Mr. Benedicts brothers, tending to her, became unavailable for telephone consultation. After his release from jail, Mr. Benedict had trouble sleeping, so on several nights that week he took extra doses of Elavil, a medication prescribed for helping him sleep.
Benedict went to work on Wednesday June 6, and found that he had trouble concentrating. He was fully expecting to go to trial in a week and a half.
In the afternoon, he got a call from his lawyers asking him to come in and discuss a plea. He went in and was told by attorneys Thompson and Berger that they had worked out a plea deal. Benedict stood to get 50 years in prison. The offer presented was contingent on Mr. Benedict, through counsel, asked the prosecution for the weekend to consider it, since he could not contact his family, and he also wanted a second opinion from his former counsel John Parinello, who was not available until Saturday to review the situation.
The prosecution refused. The stress and the medication and the lack of contact with his family and lack of advice from other counsel clouded Mr. He did not have the mental acuity with which to rationally weigh the alternatives. As attested in his affidavit Exhibit 8 , he was in fact taking amitriptyline, whose commercial name is Elavil, which had been prescribed as a sleeping aid. Under the stress of the arrest and other events related above, he had taken extra pills in the middle of the night to help him get back to sleep.
Defendant is not here claiming a defective plea solely from ingestion of prescription drugs, but merely that the drug in combination with the other stress factors detailed in the affidavit did not produce that calm state of mind required for major decisions. Explanation of supervised release. In this case, the only mention of supervised release by the Court comes in the following exchange on p. A couple of things that I might just cover additionally. Because the law requires that I speak to you, and I would first ask you to take a look at paragraph one.
Littlefield said that that does set forth the maximum possible penalties that a court could impose for a conviction of this nature. In United States v. Andrades , F. Specifically, Judge Scullin did not inform Andrades that if he violated his conditions of supervised release, then he could be imprisoned for the entire supervised release term without credit for time previously served. The same error occurred in this case. There was no warning to Mr.
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Benedict of what would happen to him if he violated the terms of supervised release. In Andrades , the error was held to be harmless because the sentence actually imposed was less than the sum of the maximum term of imprisonment plus supervised release. In this case, no sentence has yet been imposed, so one cannot assess the harm, but the question before this court is whether to permit withdrawal of the plea, and any defect in the plea allocution are material to that question.
Factual basis. Moreover, the plea allocution, as noted above, failed to elicit from the defendant that the factual basis asserted by the government was true. As pointed out above, a plea which does not admit the facts is permissible under Alford , supra , but Rule 11 still requires the court to ascertain the factual basis for the plea.
The plea agreement, p. Benedict was involved in a series of communications with Bolander between May and January , and that on January 25, , he mailed Bolander a package containing a tape containing 85 files. This factual allegation was not dealt with in any detail in the plea.