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To submit a New York criminal law question, Email me at RSouthard@SouthardLaw.com

Saturday, October 29, 2011

Are DWI penalties higher if a child was in the car?

In November 2009, New York Governor David Paterson signed into law what is commonly known as Leandra's Law making Driving while Intoxicated with a child under 16 in the vehicle a felony offense.  How serious the felony charge is depends on whether the child was hurt or killed in an accident.

Under this law, first-time offenders who are found guilty of Driving While Intoxicated with a Child in Car are guilty of an E felony and face up to 4 years in jail along with possible fines, mandatory drinking drivers program, installation of ignition interlock device and possible other punishment.

If while Driving While Intoxicated with a Child in Car the child suffers serious physical injury as defined in Section 10 of the New York Penal Law, the driver can be charged with a class C felony, punishable up to 15 years in jail along with possible fines, mandatory drinking drivers program, installation of ignition interlock device and possible other punishment.

If while Driving While Intoxicated with a Child in Car the driver causes the death of the child, he is chargeable with a class B felony punishable up to 25 years in jail along with possible fines, mandatory drinking drivers program, installation of ignition interlock device and possible other punishment.

The list of consequences do not stop here.  Parents, guardians, and custodians, who are legally responsible for a child and charged (not even convicted) with Leandra's Law DWI will automatically be reported to the State's state-wide central registry of child abuse.  Moreover, the District Attorney can seek an Order of Protection cuttig off all communication and visitation between driver and passenger even if it is the driver's child!   Also, unlike most DWIs which are not considered crimes of moral turpitude for immigration removal purposes, non-US citizens risk deportation if they are convicted of violating Leandra's Law, even if you are a legal resident!  As you can see, because of the seriousness of the charges, the consequences and the social and political climate associated with these types of cases, it is imperative that you seek legal advice from an experienced defense attorney, such as myself as early as possible, to minimize the consequences and protect your rights.

LEGAL DISCLAIMER TIME:
All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. However, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication. For a privileged private consultation, contact me at 212-385-8600 or via my website www.reasonabledoubtny.com

What is the penalty for Leaving the Scene of an Accident in New York?

Leaving the Scene of an Accident is governed by New York Vehicle and Traffic Law Section 600.  Its consequences vary depending on whether anyone was hurt and whether the driver has a prior conviction for the same type offense.

The good news is that it may not be a crime.  If the damage is limited to property damage and no one is hurt (people or animals) then the charge is a traffic infraction and NOT a crime.  The consequences can still be severe as the maximum punishment is 15 days in jail and $250 fine.

If someone is hurt, then the charge is a class A misdemeanor.  A conviction would be a permanent criminal record that can never be erased.  In addition, you would be facing up to one year in jail and $500 - $1000 fine.  Note that if your only conduct was failing to provide your license and insurance id, you can only be charged with a class B misdemeanor and the punishment is reduced to a maximum of 90 days jail and $500 fine.Note also if you have a previous conviction for leaving the scene, then the crime is bumped up to an E felony with a maximum punishment of 4 years in jail and a fine between $1000 and $2500.

If someone was seriously injured (as defined in Section 10 of the New York Penal Law), then the charge is a class E felony. If you are found guilty you would be a convicted felon and lose some very valuable rights, such as owning a firearm, serving on a jury, obtaining certain civil service jobs, etc.  You would also be facing up to four years in jail and a fine between $1000 and $5000. 

If the injured person dies as a result of the accident then the charge is a class D felony, punishable up to 7 years in jail and a fine between $2000 and $5000.

Keep in mind that these are maximum punishments and a skilled defense attorney has a wide variety of plea bargaining options available that can be used to minimize your consequences.  For a more detailed discussion on what to expect in your case, feel free to contact me at 212-385-8600 or via www.reasonabledoubtny.com/contact.php


LEGAL DISCLAIMER TIME:
All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. However, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication. For a privileged private consultation, contact me at 212-385-8600 or via my website www.reasonabledoubtny.com



Wednesday, October 26, 2011

What should I do if I want a new criminal defense lawyer?

The answer depends on who is paying for the lawyer.

You have a right to an attorney of your choosing in criminal cases so long as you are paying for them.  The courts are very liberal as to when the change can be made.  The judge will almost always grant a reasonable adjournment so that the new lawyer can bring themselves up to speed on all aspects of your case, unless your proceedings are at a critical juncture (i.e. mid-trial).  The outgoing lawyer has a duty to promptly provide a copy of all materials relating to your case to the new lawyer and is to refund any unused portion of your retainer, subject to the terms of the retainer agreement you signed with them.

However, if your attorney is a public defender assigned to you by the court, you may be stuck.  Because of their enormous workload, it is likely that your public defender has many cases in front of the judge assigned to your case.  Consequently, you shouldn't be surprised if the judge bends over backwards to defend the honor, character and competence of your assigned public defender as I have seen it happen many times.  This creates a terrible problem as your only hope to get a new lawyer is to air your list of complaints about your lawyer to the judge in open court, in front of everyone including the lawyer's colleagues.  I don't care what your lawyer's level of professionalism is, it would be impossible for he or she not to take your criticisms personally and develop some feelings of animosity to you and your case.  Unfortunately for you, this is the same person who is likely your only hope at finding a reasonable doubt for the jury to return a Not Guilty verdict. 

So what can you do?  Of course the ideal solution, if you're financially able, is to meet with a number of different lawyers until you find one you trust with your freedom and one whose defense strategy you are in agreement with.  If that is not possible, I strongly recommend that you schedule time to meet with the lawyer you are contemplating replacing and air your grievances to them BEFORE airing them to the judge.  Do it in a non-accusatory manner so that they are not forced to be defensive.  This way even if you do ultimately decide to seek a change from the presiding judge, your lawyer will not feel ambushed and your working relationship may still be salvaged if the judge denies your request. 

Best of luck to you!

Legal disclaimer: All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. Also, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication. For a privileged private consultation, contact me at 212-385-8600 or via my website www.reasonabledoubtny.com

Thursday, October 20, 2011

Better to be a prostitute than a masseuse in New York?

There seems to be a renewed interest by law enforcement in cracking down on the world's oldest profession.  This increase in arrests and prosecution has raised many questions in the sex trade industry about the differences between "massages" and prostitution    The mistaken belief is that it is legally safer for an individual to solicit clients for a massage or body rub, since there is no offer or implication of sex.


The Prostitution Law in New York:
New York Penal Law Section 230: Prostitution
A person is guilty of prostitution when such person engages or agrees or offers to engage in sexual conduct with another person in return for a fee. Prostitution is a class B Misdemeanor punishable up to 90 days in jail.  


Unfortunately for those in the sex trade industry who choose to work in New York, instead of the counties in Nevada where it's completely legal, New York has gotten more aggressive in their tactics.  Many sex workers in New York who are offering unlicensed massages are finding themselves charged under New York Education Law Sections 7801 and  7802, for the Unlawful Practice of a Profession, a Class E felony, punishable up to 4 years in jail.  The fact is New York requires  over one thousand hours of schooling and training to become a licensed masseuse in New York.  To make matters worse, if the masseuse, offers "happy endings", "full service" "full body rubs" or any of the other euphemisms that are used in the industry, they will likely be charged with prostitution as well.




Legal disclaimer: All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. However, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication. For a privileged private consultation, contact me at 212-385-8600 or via my website www.reasonabledoubtny.com

Wednesday, October 19, 2011

Understanding the ACD in New York


Basic Overview:
An ACD (adjournment in contemplation of dismissal) also known in some locales as an ACoD is a mechanism which allows for the postponement of a criminal case with the understanding that if the accused fulfills certain conditions, all charges will be dismissed. The conditions vary but can be as simple as staying out of trouble and not being rearrested during the postponement period. They may also include the additional requirements of community service, restitution to the alleged victim of the occurrence, obeying a court Order of Protection, a shoplift awareness class, or some anti-drug program or class. An ACD is not a form of probation or a conviction of any kind. The person receiving the ACD will not be asked to admit any wrongdoing or facts about the case. If the conditions are met, at the end of the adjournment period, the charges are dismissed and the record is sealed. An ACD can only be granted if the judge and prosecutor both consent to it.


How long does it last?:
For most cases, the postponement period pursuant to Criminal Procedure Law 170.55 is six months. The exceptions are family offenses CPL 530.11 and cases involving marihuana CPL 170.56 which are both one year adjournments.

Do I need to keep going back to court?:
Typically, no. After the adjournment period is up and if there is no motion to restore the case by the prosecution, the case is dismissed and sealed without your presence being required. However, if you are required to complete some task(s) as a condition of your receiving the ACD, (i.e., performing community service, paying restitution, attending classes, etc.), you will be required to return to court and provide proof that you have completed those condition(s).

Are there costs associated with an ACD?:
There are no court administrative fees, fines or victim services fees associated with an ACD.  However, there may be costs associated with fulfilling the specific conditions of your ACD: paying restitution or paying for treatment or classes.


What happens if I violate one of my conditions?:
If you are rearrested or do not fulfill any of your other condition, the prosecutor can seek to have the case restored to the calendar. The good news is that there is no automatic punishment imposed for violating a condition; the only consequence is that the case is restored to the same position it was in prior to the ACD being granted. In other words, the prosecution is back to having to prove you guilty of a crime "beyond a reasonable doubt".

Are there any negative consequences of an ACD?:
An ACD will likely prevent the accused's ability to sue for malicious prosecution but should not prevent your ability to sue for wrongful arrest or excessive force. Also, be aware that the charges are not dismissed until after the adjournment period which may be up to one year. So technically, you will still have an active pending criminal case during that time period. This may have consequences on your employment or immigration status.

Will there be a record of the case after it's dismissed?:
The accused is restored to the status they enjoyed prior to their arrest. Therefore all records of the prosecution are sealed and expunged. There is no rap sheet and no criminal record. However, it is common practice in New York that local law enforcement keeps a record of the arrest. Technically, access to the contents of those arrest records should not be allowed without an unsealing order by a judge.

Should I take an ACD if it's offered?:
Notwithstanding the consequences mentioned above, a criminal defense attorney's goal is to get their client's charges dismissed. An ACD allows for this result with minimal consequences for failure. Especially where the possibility of a permanent criminal record and potential jail time exists, it is the rare case where it is not in the client's best interest to accept an ACD.  Of course, you should speak to an experienced criminal defense attorney before making any final decisions. 

Additional Resources

www.ReasonableDoubtNYC.com

See also, New York Criminal Procedure Law Section 170




Tuesday, October 18, 2011

Will my prospective employer see that I was arrested?

One of the most frequently asked questions I receive is some variation of, "I am applying for a new job, will my prospective employer see ___________ on my criminal record?"  Typically, sealed records should not be visible by prospective employers, however, I have heard stories where they show up, especially if the job involves law enforcement, government agencies, or jobs that require professional licenses.  Despite what we attorneys think should show on your record, the only sure way to know what's on your record is by getting a copy of the record yourself. Fortunately, you do not need an attorney to request your own Record Review. The following information is from the official New York State Division of Criminal Justice Services website:


IF YOU LIVE IN NEW YORK STATE
You need to schedule an appointment with L-1 Identity Solutions as they are contracted with New York State to provide this service. They have approximately 100 fingerprinting sites throughout the State and even have some that offer evening and weekend hours. They may be contacted at 1-877-472-6915 or via their website www.L1enrollment.com. You will be required to provide two acceptable forms of identification when you appear for your appointment.


IF YOU LIVE OUTSIDE NEW YORK STATE
You need to contact the DCJS Record Review Unit at 518-485-7675 or 518-457-9847 to request a cardscan packet which you need to complete and send to the L-1 Identity Solutions address on the application.


HOW MUCH DOES IT COST?
The current processing fee is $61.50 ($50.00 DCJS processing fee and $11.50 L-1 fingerprinting fee)

HOW LONG DOES IT TAKE?
Seven to ten business days from the time DCJS receives your fingerprints from L-1

WHAT IF THERE IS A MISTAKE ON MY RECORD?
When you receive your record from DCJS, you will also receive information on how to challenge any aspect of your criminal record.

ADDITIONAL RESOURCES:
New York State Division of Criminal Justice Services
www.reasonabledoubtny.com


Legal disclaimer: All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. Also, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication. For a privileged private consultation, contact me at 212-385-8600 or via my website www.reasonabledoubtny.com



Saturday, October 15, 2011

Welcome to Reasonable Doubt New York

WHY REASONABLE DOUBT NEW YORK?

The concept of reasonable doubt stems from the fundamental principle of our society that it is far worse to convict an innocent man than to let a guilty man go free.  As anyone who has ever been in trouble with the law knows, a "reasonable doubt" can mean the difference between freedom and spending time behind bars.

Hundreds of thousands of people are arrested each year in New York City alone, many for the first time.  Facing the criminal justice system in New York can be a confusing and incredibly stressful experience.  The police ask you to come down to the precinct to answer a few questions and before you know it you're behind bars.  You get a phone call in the middle of the night to learn a loved one has been arrested, what do you do?  Hopefully, this blog can help.

This blog is devoted to helping New Yorkers navigate through their criminal defense problems. I will be posting some brief guides to questions that I am frequently asked.  I may re-post some questions that I have answered on some other legal question sites. And I will also be happy to answer as many of your general New York criminal defense questions that you submit as I can.

LEGAL DISCLAIMER TIME:
All answers are for information purposes only. Answering this question or any future questions does not form any attorney-client relationship. Be mindful, that answers are limited by the limited facts presented by the questioner and are not meant to take the place of competent legal advice by an attorney fully informed of all the facts surrounding your case. However, be aware that nothing posted in a public forum such as this can be deemed confidential or privileged communication. For a privileged private consultation, contact me at 212-385-8600 or via my website www.reasonabledoubtny.com