How can I file criminla charges?

[onedaddy]

In March, 2003 my husband brought his ex to family court in NJ (the divorce took place here) and she was found in contempt. Exactly 3 days later she filed harrassment charges in Suffolk County, NY (Where she currently resides).
In September, 2003 the ex asked my husband to give her permission to move to Florida.  He refused and 3 days later aggravated harrasment charges were filed against him, this time leading to his first ever arrest.  We accepted an ACD and an order of refrain was placed.
In October 2003 the ex's sister filed a harrassment report in Staten Island, NY (where we are from) but nothing came out of it.  At this same time the ex filed a petition to have his joint custody revoked and supervised visitation because he has "OCD". This case in still pending.
We took her back to NJ Court in January 2004 to repay a $5,000 loan she obtained the year prior and after the divorce using my husbands name and ss# and 2 weeks later she filed neglect charges against my husband with CPS, which came back unfounded due to credible evidence.
In March 2004 while my husband attempted to speak with the children on a line he installed specifically to avoid communication with the ex, she picked up the phone, when he refused to speak with her and told her his lawyer would contact her, she hung up the phone.  10 min. later in an attempt to speak with the children he called again and the step father picked up the phone and proceeded to tell my husband what he was going to do to him.  My husband hung up the phone.
The next afternoon the police called us, said she signed a sworn statement that he called her and said, I'm going to come over and shoot you and your husband in the head.  They officer stated this called for an immediate arrest.
He surrendered himself the very next day, was told by the arraignment judge that he was facing 8 months upstate, ordered to pay $2500 bail and was forced to spend 10 hours in a maximum security cell in Riverhead, NY until they allowed me to post bail.
We were offered an ACD, again but instead forced a trial.  On August 4th, 2004 my husband was found not guilty, the judge stated she was not credible, shifty and did not believe her.  He additionally stated there would be no punishment for her.

1. Can we file charges against her for filing a false report, false arrest, false imprisonment, harrassment?
2.  Until now the police have refused to listen, how do we get them to do so now?
3.  Must we file charges in her town where the arrest took place?
4.  Is there a statute on this?  Our lawyer believes this will not look good for the custody trial on September 28th,but I believe it is the only thing that will stop her and we can't continue to live in fear of undue prosecution.
2.  How do I get the police to file charges

[socrateaser]

>1. Can we file charges against her for filing a false report,
>false arrest, false imprisonment, harrassment?

You can file, but it will go nowhere.

>2.  Until now the police have refused to listen, how do we get
>them to do so now?

They won't listen.

>3.  Must we file charges in her town where the arrest took
>place?

Nope.

>4.  Is there a statute on this?  Our lawyer believes this will
>not look good for the custody trial on September 28th,but I
>believe it is the only thing that will stop her and we can't
>continue to live in fear of undue prosecution.

Your lawyer certainly isn't analyzing all of the possibilities.

>2.  How do I get the police to file charges

It's up to the District Attorney to make a case. Now, understand I'M ON YOUR SIDE, but, the bottom line for the local authority is that to win a criminal action you need to prove guilt "beyond all reasonable doubt," and there's way too much "he said -- she said" in your case with no way to prove what really happened. This is called a "proof of facts" problem. If you had managed to legally record some of the alleged encounters, then you would have a slam dunk case, but without something more, the DA knows that he/she will lose.

Also, remember that for a criminal action, the DA must face a jury, and if just ONE of those jurors is a woman who thinks she got the bad end of the stick in her divorce, then the jury will come back hung, and the DA will have wasted the taxpayer's money, and made him/herself look bad to the chief prosecutor.

So, it's really a no win situation.

However, all is not lost. When a person successfully defends a criminal action, and the judge calls the victim "shifty," that's a pretty strong indication of your ability to win a civil action against the other parent for malicious prosecution,  intentional infliction of emotional distress, and false imprisonment. However, your family law attorney doesn't probably do civil tort cases (which is what this kind of suit is called), and he/she can't guarantee that he/she will get paid, because the plaintiff (i.e., you) cannot get attorney fees from the defendant (the ex) if you win.

Still, this is an advantage sometimes, because when you file against another person on this sort of issue, the very fact that they must pay an attorney to defend them, with no hope of recovering any fees, will frequently cause the defendant to just give up and settle.

So, if the ex has some decent net worth (i.e., owns her own home, and that home has equity, or stocks or other assets that can be garnished), then I would seriously consider just suing the crap out of her, and asking for punitive damages to discourage her from any further bad behavior.

After all, you were thrown in a jail cell, and the criminal judge thinks she's full of it, so it's pretty likely that you will be able to convince a civil jury that she "more likely than not" took all of these actions with the specific intent to use the legal system for a "purpose other than what it was intended." And, she successfully caused you to be imprisoned, and you certainly suffered mental distress, so I think you have a pretty good case.

Go find a general civil lawyer (tort), and discuss.

[onedaddy]

Sorry for the typo..
Thanks!
Our lawyer reccomended an excellent civil attorney which we are expected to meet with next week.  It's just another $3500 retainer fee we must come up with in additon to the $40,000+ we've spent/lost this past year.
Better to a civil attorney than I criminal attorney or bondsman.
Thanks again!

[onedaddy]

In March, 2003 my husband brought his ex to family court in NJ (the divorce took place here) and she was found in contempt. Exactly 3 days later she filed harrassment charges in Suffolk County, NY (Where she currently resides).
In September, 2003 the ex asked my husband to give her permission to move to Florida.  He refused and 3 days later aggravated harrasment charges were filed against him, this time leading to his first ever arrest.  We accepted an ACD and an order of refrain was placed.
In October 2003 the ex's sister filed a harrassment report in Staten Island, NY (where we are from) but nothing came out of it.  At this same time the ex filed a petition to have his joint custody revoked and supervised visitation because he has "OCD". This case in still pending.
We took her back to NJ Court in January 2004 to repay a $5,000 loan she obtained the year prior and after the divorce using my husbands name and ss# and 2 weeks later she filed neglect charges against my husband with CPS, which came back unfounded due to credible evidence.
In March 2004 while my husband attempted to speak with the children on a line he installed specifically to avoid communication with the ex, she picked up the phone, when he refused to speak with her and told her his lawyer would contact her, she hung up the phone.  10 min. later in an attempt to speak with the children he called again and the step father picked up the phone and proceeded to tell my husband what he was going to do to him.  My husband hung up the phone.
The next afternoon the police called us, said she signed a sworn statement that he called her and said, I'm going to come over and shoot you and your husband in the head.  They officer stated this called for an immediate arrest.
He surrendered himself the very next day, was told by the arraignment judge that he was facing 8 months upstate, ordered to pay $2500 bail and was forced to spend 10 hours in a maximum security cell in Riverhead, NY until they allowed me to post bail.
We were offered an ACD, again but instead forced a trial.  On August 4th, 2004 my husband was found not guilty, the judge stated she was not credible, shifty and did not believe her.  He additionally stated there would be no punishment for her.

1. Can we file charges against her for filing a false report, false arrest, false imprisonment, harrassment?
2.  Until now the police have refused to listen, how do we get them to do so now?
3.  Must we file charges in her town where the arrest took place?
4.  Is there a statute on this?  Our lawyer believes this will not look good for the custody trial on September 28th,but I believe it is the only thing that will stop her and we can't continue to live in fear of undue prosecution.
2.  How do I get the police to file charges

[socrateaser]

>1. Can we file charges against her for filing a false report,
>false arrest, false imprisonment, harrassment?

You can file, but it will go nowhere.

>2.  Until now the police have refused to listen, how do we get
>them to do so now?

They won't listen.

>3.  Must we file charges in her town where the arrest took
>place?

Nope.

>4.  Is there a statute on this?  Our lawyer believes this will
>not look good for the custody trial on September 28th,but I
>believe it is the only thing that will stop her and we can't
>continue to live in fear of undue prosecution.

Your lawyer certainly isn't analyzing all of the possibilities.

>2.  How do I get the police to file charges

It's up to the District Attorney to make a case. Now, understand I'M ON YOUR SIDE, but, the bottom line for the local authority is that to win a criminal action you need to prove guilt "beyond all reasonable doubt," and there's way too much "he said -- she said" in your case with no way to prove what really happened. This is called a "proof of facts" problem. If you had managed to legally record some of the alleged encounters, then you would have a slam dunk case, but without something more, the DA knows that he/she will lose.

Also, remember that for a criminal action, the DA must face a jury, and if just ONE of those jurors is a woman who thinks she got the bad end of the stick in her divorce, then the jury will come back hung, and the DA will have wasted the taxpayer's money, and made him/herself look bad to the chief prosecutor.

So, it's really a no win situation.

However, all is not lost. When a person successfully defends a criminal action, and the judge calls the victim "shifty," that's a pretty strong indication of your ability to win a civil action against the other parent for malicious prosecution,  intentional infliction of emotional distress, and false imprisonment. However, your family law attorney doesn't probably do civil tort cases (which is what this kind of suit is called), and he/she can't guarantee that he/she will get paid, because the plaintiff (i.e., you) cannot get attorney fees from the defendant (the ex) if you win.

Still, this is an advantage sometimes, because when you file against another person on this sort of issue, the very fact that they must pay an attorney to defend them, with no hope of recovering any fees, will frequently cause the defendant to just give up and settle.

So, if the ex has some decent net worth (i.e., owns her own home, and that home has equity, or stocks or other assets that can be garnished), then I would seriously consider just suing the crap out of her, and asking for punitive damages to discourage her from any further bad behavior.

After all, you were thrown in a jail cell, and the criminal judge thinks she's full of it, so it's pretty likely that you will be able to convince a civil jury that she "more likely than not" took all of these actions with the specific intent to use the legal system for a "purpose other than what it was intended." And, she successfully caused you to be imprisoned, and you certainly suffered mental distress, so I think you have a pretty good case.

Go find a general civil lawyer (tort), and discuss.

[onedaddy]

Sorry for the typo..
Thanks!
Our lawyer reccomended an excellent civil attorney which we are expected to meet with next week.  It's just another $3500 retainer fee we must come up with in additon to the $40,000+ we've spent/lost this past year.
Better to a civil attorney than I criminal attorney or bondsman.
Thanks again!