SUBMIT A NY CRIMINAL LAW QUESTION

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

Wednesday, June 20, 2012

Brooklyn Judge throws out drinking in public summons because of no laboratory testing

At least for one judge in Brooklyn, Noach Dear, the police can no longer rely on their training and experience in determining when someone is drinking alcohol in public.  The judge said that a laboratory test would be required in order to determine that a beverage contained more than 0.5% of alcohol per volume as the law requires. Given that the cost to perform a laboratory test would greatly outweigh the $25 fine that's usually associated with this offense, it would cripple police officer's ability to enforce this law.  It seems in my opinion, that was exactly the intent of the judge. It's rare for a judge to issue a written decision in such a seemingly minor case. It's even more odd for the judge to look at the racial application of the law in forming his decision but that's exactly what he did.  Judge Dear had his staff pull the records for a months worth of drinking in public summonses in Brooklyn and found that only 4 percent were issued to white people. While one month isn't exactly a large sample size, consider that there were nearly 125,000 summonses issued in New York City last year, which would likely still mean a lot of summonses in each borough on a monthly basis.  How other judges will treat these summonses in the future remains to be seen but I am more curious if the NYPD will take a look at how this law is enforced given the Judge's findings.




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

What happens if I violate my ACD by being arrested again for shoplifting?


The good news is that legally you are not in a worse place then you were prior to accepting the ACD. Upon violating an ACD, the DA should move to restore that case to the calendar, which the judge will grant if you were re-arrested. Your status will be exactly the same as it was prior to accepting an ACD, presumed innocent, with the burden on the DA to prove your guilt.

The bad news is that the DA and judge gave you a very big break. You had the chance to dismiss and seal all of the criminal charges against you and you blew it. Not only did you squander the chance, the judge and DA will believe that you are continuing to commit the same type of crimes. Expect that they will not be looking to show leniency this time. That does not mean they will be seeking jail as punishment but you will have a much tougher time this go around.  With the right attorney, it may still be possible to resolve both these cases without having a permanent criminal record that cannot be expunged.

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

Tuesday, June 12, 2012

New York Moves to Decriminalize Marijuana

There has been a lot of media attention to Governor Cuomo's efforts to decriminalize marijuana possession.  First I want to clarify that marijuana possession under 25 grams is already decriminalized in New York so this attention is a bit misleading.  Simple marijuana possession in New York is a violation and NOT a crime and a conviction would not mean you had a criminal record.  It is however currently a crime under Penal Law Section 221.10 to possess more than 25 grams of marijuana or to possess marijuana that is "burning or open to public view"

The new push does not seek to allow marijuana to be smoked in public.  It seeks to reduce marijuana that is open to public view from a misdemeanor to a violation.  When is the marijuana open to public view you may wonder?  Typically this is charged during the purchase of marijuana when the observing officer sees hands touch and then upon subsequent recovery of marijuana they claim it was open to public view.  The other situation is where the officers ask a suspect to empty their pockets and then  when marijuana is pulled out they charge that it is open to public view.  Neither which is an aggravating fact that should increase the seriousness of the offense to a crime.  Part of the push to decriminalize this offense is to reduce the number of bad searches and stop and frisks by the NYPD.

While most prosecutor's offices treat this as a non-criminal offense anyway, there are still prosecutors who aggressively prosecute these cases.  I just handled a case in New York County where the ADA handling the case was insisting on a plea to the charge and two weeks in jail.  Ultimately after speaking to the supervisor, a more reasonable non-criminal resolution was agreed to. When I tried to explain the push to decriminalize this offense the ADA thought I was crazy.  Perhaps she should read the editorial of her boss, Cy Vance, http://www.amsterdamnews.com/politics_noir/decriminalize-pot/article_df8e7626-b0cf-11e1-bd57-0019bb2963f4.html

The push is to get the change in the law passed before the end of the current legislative session in the next couple of weeks.  Given the support of Mayor Bloomberg, Governor Cuomo and many of the New York District Attorneys, I expect it will be passed.

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

New York Toughens Domestic Violence Laws

New York legislators reached an agreement to create a new crime of Aggravated Felony Offense which increases penalties for repeat domestic violence offenders.  This new crime will make it a felony to commit a domestic violence misdemeanor offense if you have a previous domestic violence conviction in the preceding five years.  It will bump the charge up to a class E felony with a minimum sentence of 5 years probation and a maximum of four years incarceration.  The rationale behind the new law is to give the prosecutors another weapon to treat repeat offenders more harshly. Prior to this law, the DA would be limited to charging misdemeanor crimes unless an order of protection was in effect and then they might be able to charge a felony charge of Criminal Contempt of Court.

This new law also creates a new class A misdemeanor crime of Aggravated Harassment in the Second Degree for someone who causes physical injury to a family or household member with the intent to harass, annoy, threaten or alarm. The aggravated harassment misdemeanor takes effect in 60 days, and the aggravated family offense takes effect in 90 days, after the bill becomes law.

The law also includes a couple of other provisions two of which are important and one of which is meaningless in my opinion.  It allows for increased safeguards to protect the location of domestic violence victims.  It also ensures that a domestic violence offender  cannot control the disposition of a victim's remains.  Both of these provisions are good additions to the law.  The other provision allows judges to consider additional risk factors in determining bail on a domestic violence case.  While this was not a provision previously, prosecutors routinely argued these factors unfettered during bail requests and I have heard judges refer to them in deciding bail despite their absence for the statute.  

Given these new changes, I expect the prosecutors to start increasing the plea offers on domestic violence cases even before the law goes into effect.  Now more than ever, you need to consult with an experienced defense attorney if you or a loved one are accused of a domestic violence offense.


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

Friday, June 8, 2012

Caught shoplifting but police were not called, do I have a criminal record?


You can only have a criminal record if you have been arrested and plead guilty to a crime or are found guilty of a crime after trial. However, even though you were not arrested on the date of the incident, the police have up to two years to prosecute you for misdemeanor charges. This is known as the Statute of Limitations.  Since they did not arrest you when this happened, it is unlikely that they will do so now but theoretically possible.

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