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Saturday, January 28, 2012

Xbox: The latest crime fighting technique??

I came across an interesting article last week by Nate Anderson for Ars Technica discussing how game consoles are increasingly being used by law enforcement officers in criminal investigations.  See, CSI: Xbox by Nate Anderson.

It can be used to stop the exchanging of child pornography through file sharing.  It can be used to establish or refute alibis (I was/wasn't there; I was playing ______ at the time).  And it can be used as a means for undercover officers to interact with suspects online via chat and then record the conversations to use in a later prosecution. 

As technology advances, law enforcement has to stay ahead of the curve but that is not an invitation to circumvent civil liberties.  I imagine law enforcement will need warrants to search the contents of a gaming console the way they would for a computer. However, I'm not certain there is an expectation of privacy in conversations shared over a gaming platform. It will be interesting to see how this issue plays out over time but in the meantime, know that Big Brother is watching.

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

Do the Police need a warrant to put a GPS tracking device on your car? UPDATED! They do!

A couple of months ago, November 18, 2011 to be exact, I looked at the issue of whether the police needed a warrant to install a GPS tracking device on your vehicle.  This week the Supreme Court decided the answer (They do.) and I'm happy to report that it was unanimous!  The Supreme Court unanimously held in U.S. v. Jones that the warrantless use of a GPS tracking device by the police violated the Fourth Amendment. The Court said that a warrant is required "[w]here, as here, the government obtains information by physically intruding on a constitutionally protected area like a car.

Should I testify in the grand jury?

One of the questions I get asked frequently is whether or not someone who is accused of a felony should testify on their own behalf during the grand jury proceedings.  First, there is no constitutional right to testify in the grand jury on your own behalf.  What that means is, unlike trial where it is your choice, your attorney can choose to not have you testify in the grand jury even if you have told the judge and your lawyer that you wish to testify.  Yes you read that correctly, the person who is facing substantial jail time does not get to choose whether or not to testify in the grand jury (although most attorneys respect the wishes of their clients).

Testifying before a grand jury is a very risky proposition because the prosecution has many advantages. For example, during a trial, a defendant makes the decision of whether to testify after having heard all of the evidence against him.  He can address any issues that the prosecution has raised through their witnesses.  In theory, a defendant can alter or tailor his testimony around the scientific evidence or indisputable proof. At the grand jury phase, a defendant has no idea what the grand jury knows or has heard. Whatever statement a defendant makes is sworn to and on record; so if evidence is discovered later on that refutes or contradicts a defendants testimony, he is stuck with what he has already said and this could be very damaging.  Moreover, a defendant who testifies unsuccessfully at the grand jury has handed the prosecutor a decisive advantage at trial as the prosecutor now knows the complete defense strategy and tesimony.

Also, there is no judge during the grand jury proceedings.  The prosecutor controls what the grand jury sees and hears. I have seen many prosecutors unfairly limit the testimony of a defendant to what they feel is relevant and unfortunately a defense attorney is very limited on how they can combat this. Moreover, prosecutors have much more leeway in asking defendants about their prior criminal history in the grand jury than at trial. At trial, defense lawyers can get a ruling from the judge that prohibits or severely limits the prosecutors ability to discredit the defendant because of prior trouble with the law.

Lastly, the function of the grand jury is not to decide guilt or innocence. They are merely determining whether there is probable cause to believe that a crime was committed by defendant; a much smaller burden than beyond a reasonable doubt.  In law school, we were taught an old saying that a prosecutor can indict a "ham sandwich". In other words, there isn't much that a grand jury won't indict.

All this being said, there are times when a defendant should testify before the grand jury; however, those times are usually dictated by the specific facts of the defense.  This can only be determined by someone who is familiar with the facts of the State's case and the accused's defense.  The best advice would be to sit down and discuss the facts of what happened with an experienced criminal attorney who can better advise 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. 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

Saturday, January 14, 2012

Will my sentence after trial be similar to the plea bargain they offered?

The original plea offer has no bearing on a sentence after trial other than it gives a defense attorney an argument to the judge that the DA felt this was an appropriate punishment for the acts charged.  However, since you chose to exercise your right to trial (a constitutional right) there was significant expense to the state as well as a risk of loss, so typically the sentences are harsher after trial. Moreover, after trial, a judge has heard many more details about the crime and that could influence a judge's decision, especially if the judge believes a defendant was untruthful on the witness stand.  Finally, when judges are inclined to give leniency they are looking to see remorse and acceptance of responsibility by the guilty party.  This often can't be fully accomplished after trial as defendants need to maintain claims of innocence for appeal purposes.

Let's apply this to your case, without knowing more details, you were convicted after trial of Grand Larceny in the Third Degree.  The DA had been offering six months jail (and possibly five years on probation) and your exposure is up to 7 years now at sentence.  The good news is you a first offender, the bad news is the value of the property stolen is significant at the thirty to forty thousand range.  In theory, the judge could sentence you to less than the original plea offer.  I think it will boil down to whether or not the judge thinks that upstate time is appropriate. If I were to make an educated prediction, I would expect the judge to sentence you to two years prison.

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, January 11, 2012

My husband plead guilty. Is it difficult to appeal the sentence?

While it may be possible to appeal a sentence that is unduly harsh or cruel and unusual, judges are given wide discretion.  If the sentence is within the sentencing guidelines, it would be very difficult to show an abuse of this discretion.  However, this applies only to cases where someone is sentenced after trial.

In situations like the one you ask about, after plea bargain, the proper remedy would be to make a motion to withdraw your plea.  At the time the guilty plea is entered, each judge asks a number of questions to make it difficult if not impossible for you to later change your mind and try to withdraw your plea.  These include: "Have you had enough time to discuss this deal with your attorney" "Are you satisfied with the job your attorney has done?" "Do you realize you are giving up your right to trial, to make the DA prove the case against you, to cross-examine witnesses, to call witnesses on your behalf, etc." "Are you pleading guilty of your own free will?" "You are not being threatened or coerced to enter this plea?' "No other promises have been made to you other than the agreed upon plea?" "Are you under the influence of drugs or alcohol?"  These questions are designed specifically to negate the valid reasons you might have to get your plea back.

Assuming for argument's sake, that you do have a valid ground to withdraw your plea, there is still more bad news.  The judge usually allocutes a defendant after they plead guilty.  In other words, the judge makes you swear to tell the truth under oath and admit the facts of the crime you are pleading guilty to.  Why is this bad? Because if by some chance you do get your plea back, the case is not over, it merely proceeds to trial and your defenses are hampered/limited by your sworn admissions.

Does this mean the DA can't legally give me a better deal?  No. Legally, it would be permissible to alter the original deal once the plea has been withdrawn.  But as a matter of policy, a DA would be crazy to give you a better deal than the one you already agreed to. And if he did, the judge would still have to approve the deal which is unlikely.  If that were the case, no one would want to stick with their deal and the courts would be flooded with everyone making this motion.  The reality is that you are creating more work for an already overworked ADA who believed that a deal was struck.  Think about purchasing a new car.  You agree to pay a certain price, a lot of work goes into making that agreement happen, contracts are drawn up, financing arranged and then right as you are about to pick up your new car, you call the salesman and say I want to pay $5000 less than I originally agreed.  Multiply that by ten and that's how the DA handling your case feels.  I wouldn't be surprised if the ADA was so angered by the reneging on the deal that he spends some extra time preparing your case for trial.

In short, don't enter a plea bargain if there is even a slight chance that you may change your mind later on.


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

Tuesday, January 10, 2012

How much time could someone get if they were just a lookout in a robbery?



New York follows the principle of law known as "acting in concert." This allows a person with a minor role such as a lookout to be charged and punished as if they were the main actor of the crime.  Our law defines the circumstances under which one person may be criminally liable for the conduct of another as follows:  When one person engages in conduct which constitutes an offense, another is criminally liable for such conduct when, acting with the state of mind required for the commission of that offense, he or she solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.

This definition requires the prosecutor prove both of the following elements beyond a reasonable doubt: 
(1) That the defendant solicited, requested, commanded, importuned, or intentionally aided that person [or persons] to engage in that conduct, and (2) That he/she did so with the state of mind required for the 
commission of the offense.



Understand that under this law, mere presence (even while the crime is taking place) is not enough to constitute criminal liability as an accessory; however, presence while acting as a lookout would be intentionally aiding a person in committing a robbery and would be equally liable under the law.

How much time someone faces depends on what degree of Robbery is charged:  Third Degree Robbery is a maximum of seven years jail, Second Degree Robbery is a maximum of fifteen years jail and First Degree Robbery is a maximum of twenty-five years jail.  In my experience, having been a prosecutor for many years, the District Attorney often differentiates between the major and minor role players who committed a crime and are willing to punish them differently.  Given that it is a first offense, there may be the possibility for probation or diversion program.  Other factors the DA will consider are the age of the offender, whether weapons were used during the robbery, any injuries that occurred during the robbery, the value of the property taken, any drug addictions of the offender, any cooperation by the offender, the strength or weakness of the proof in their evidence, etc.

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