tag:blogger.com,1999:blog-40448808474354604342024-02-18T17:35:08.434-08:00Reasonable Doubt New YorkEx-prosecutor turned criminal defense lawyer with over 15 years experience specializing in criminal law cases answering your New York Criminal Law questions.Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.comBlogger41125tag:blogger.com,1999:blog-4044880847435460434.post-36919899781697179972014-07-22T09:56:00.000-07:002014-07-22T09:56:07.562-07:00Richard Southard is named one of the Top 100 Criminal Trial Lawyers in New York!<div class="MsoNormal">
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<b><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%;"><w:sdt calendar="t" calendartype="Gregorian" date="2014-07-22T00:00:00Z" dateformat="dddd, MMMM dd, yyyy" docpart="B574EBBD28A94E8EA16566F23D308443" id="1637287581" lang="EN-US" maptodatetime="t">Tuesday, July
22, 2014</w:sdt>---The National Trial Lawyers </span></b><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%;">organization
is </span><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Courier New"; mso-fareast-font-family: "Times New Roman";">pleased
to announce that<b> Richard Southard </b>has
been selected for inclusion into its <b>Top
100 Trial Lawyers</b>, an honor given to only a select group of </span><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">lawyers
for their superior skills and qualifications in the field</span><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Courier New"; mso-fareast-font-family: "Times New Roman";">.
</span><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">The
selection for this exclusive list is limited to only 100 attorneys per state
who have extensive experience in either civil plaintiff or criminal defense
law.<o:p></o:p></span><br />
<span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";"><br /></span></div>
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<b><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">The National Trial Lawyers</span></b><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">
is a professional organization comprised of the premier trial lawyers from
across the country who has demonstrated exceptional qualifications in their
area of the law, specifically criminal defense or civil plaintiff law. <b>The National Trial Lawyers</b> provides
accreditation to these distinguished attorneys, and also aims to provide
essential legal news, information, and education to trial lawyers across the
United States. <o:p></o:p></span><br />
<span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";"><br /></span></div>
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<span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">With
the selection of </span><b><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Courier New"; mso-fareast-font-family: "Times New Roman";">Richard
Southard</span></b><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";"> by <b>The National Trial Lawyers: Top 100</b>, <b>S</b></span><b><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Courier New"; mso-fareast-font-family: "Times New Roman";">outhard</span></b><span style="font-family: "Bookman Old Style","serif"; font-size: 12.0pt; line-height: 115%; mso-bidi-font-family: "Times New Roman"; mso-fareast-font-family: "Times New Roman";">
has shown that he exemplifies superior qualifications, leadership skills, and
trial results as a legal professional. The selection process for this elite
honor is based on a multi-phase process which includes peer nominations
combined with third party research. As <b>The
National Trial Lawyers: Top 100</b> is an essential source of networking and
information for trial attorneys throughout the nation, the final result of the
selection process is a credible and comprehensive list of the young lawyers
chosen to represent their state. <o:p></o:p></span></div>
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Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com3tag:blogger.com,1999:blog-4044880847435460434.post-20859134102038903222014-07-08T15:00:00.000-07:002014-07-08T15:00:36.707-07:00A+ RATING!!The Law Office of Richard Southard is pleased to continue its award-winning year by proudly announcing that we have received the highest rating possible by the Better Business Bureau!<br />
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A+<br />
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<a href="http://www.bbb.org/new-york-city/business-reviews/attorneys-and-lawyers/law-office-of-richard-southard-in-new-york-ny-145498">http://www.bbb.org/new-york-city/business-reviews/attorneys-and-lawyers/law-office-of-richard-southard-in-new-york-ny-145498</a><br />
<br />Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-33881974977403456452014-05-15T08:41:00.000-07:002014-05-15T08:41:09.324-07:00I am pregnant and my boyfriend is on probation for rape of 14 year-old. Can he be around our child?He can but only with permission of a judge or probation.<br />
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Probation has a list of special conditions for sex offenders which should have been given to him at the time of his sentence. Where the victim was a minor, the defendant cannot live in a residence with anyone under 18 without the permission of the Court (judge) or Probation. Permission is also required for working or volunteering for businesses with workers under 18 as well as being at locations predominantly frequented by persons under 18. Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com0tag:blogger.com,1999:blog-4044880847435460434.post-72310524240281840252014-04-22T12:41:00.001-07:002014-04-22T12:41:12.491-07:00Richard Southard has been named one of the 10 Best DUI/DWI lawyers in New York State!The Law Office of Richard Southard is proud to announce that owner Richard Southard has been selected as one of the 10 Best DUI/DWI lawyers in New York State by the American Institute of DUI/DWI Attorneys. Contact Rich Southard at 212-385-8600 for a free consultation on your DWI case.Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-60264649748665951882014-02-24T13:44:00.001-08:002014-02-24T16:07:52.353-08:00Can I get a criminal record for riding a bicycle on the sidewalk in NYC?Surprisingly the answer is YES!<br />
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Under New York Administrative Code 19-176 (c), a person who rides a bicycle on any sidewalk where it is not permitted by sign, in a manner that endangers any other person or property shall be guilty of a misdemeanor crime. The punishment is fine of up to $100 or imprisonment up to twenty (20) days jail or both. While I imagine it would take serous danger or injury to person(s) or property for a judge to consider sentencing someone to jail, pleading guilty to this summons or being found guilty after trial would leave someone with a permanent criminal record in New York that cannot be erased or expunged. Add this to the list of pink summons like "being in the park after dark" or "urinating in public" that can drastically affect your future. </div>
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"Remember one reasonable doubt can make all the difference"</div>
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www.reasonabledoubtny.com</div>
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#pinksummons, #criminallaw, #criminaldefense, #NYC </div>
Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com0tag:blogger.com,1999:blog-4044880847435460434.post-50541601301748464392014-02-24T13:29:00.000-08:002014-02-24T13:46:21.746-08:00Does the arresting officer, testing officer or both need to show up to my DWI refusal hearing? If no officers show up to the refusal hearing, the administrative law judge will postpone the case for the officers to appear. The good news is that they will restore your driving privileges during this adjournment which typically takes 3-6 months in the NYC area. Your lawyer has the option of preparing a subpoena to insure the officer's appearance for the next hearing date. <br />
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Unlike traffic tickets, the case is not dismissed if the officer does not appear the next court date. I have conducted many refusal hearings in the NYC area where none of the police officers appeared and the hearing takes place without any live police witnesses. If one officer shows, they will be allowed to testify as to what their fellow officers told them or what they observed them do. The reason this is allowed is because hearsay is allowed at a refusal hearing. There are also cases that allow for the introduction of police reports that ordinarily would not be allowed at trial. The burden for the State is the same as if the officers were present, so it is essential that your attorney knows what elements need to be established by the State because if any one of them is missing, the judge must rule in your favor. The decision on whether to subpoena the officer to testify is a difficult one as there are many advantages to having an officer testify prior to the criminal trial. Most likely he has yet to be prepped for cross-examination and has briefly read over his paperwork. This gives a huge advantage to a skilled trial lawyer and his testimony at the hearing can be used against the officer at trial. These advantages must be weighed against the improved odds of winning the refusal hearing based on lack of evidence. That is why it is imperative to hire an attorney with the experience and track record to navigate these difficult decisions.<br />
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"Remember one reasonable doubt can make all the difference"<br />
www.reasonabledoubtny.com<br />
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#dwi, #dui, #dwirefusal, #duirefusal, #refusalhearing, #criminallaw, #criminaldefense, #NYCAnonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com0tag:blogger.com,1999:blog-4044880847435460434.post-61178044003406343242014-02-24T12:47:00.003-08:002014-02-24T13:47:07.941-08:00Does New York State honor out of state driver's license points?For the most part, the answer is "No". New York State does not assign points from out of state convictions or from other countries with the exception of Ontario and Quebec. I copied the relevant section from the official NYS DMV website and linked the full article below.<br />
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<b>Out-of-state convictions: </b><br />
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If you are convicted of a traffic violation in another state or country, points are not added to your New York State driving record, unless the violation occurred in Ontario or Quebec.<br />
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New York State has a reciprocal agreement with Quebec and Ontario. Traffic violation convictions that occur in these provinces are recorded on your New York State driver record, and the convictions have the same effect and carry the same points as convictions that occur in New York State. This can affect your driver violation point total and Driver Responsibility Assessment.<br />
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http://dmv.ny.gov/tickets/about-nys-driver-point-system<br />
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"Remember one reasonable doubt can make all the difference"<br />
www.reasonabledoubtny.com<br />
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#nycdmv, #criminallaw, #criminaldefense, #NYCAnonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-64942562572124247342013-01-10T18:51:00.002-08:002013-01-10T18:51:53.089-08:00I missed a day of community service and it was my final chance, What can I do?So the question was asked, "what can be done if community service was not completed and it was my final chance? Will I be sentenced to jail?"<br />
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When a defendant is given multiple chances to perform community service and fails to do so, jail is certainly a possibility. Judges feel that you were given a considerable break in sentencing and that you are not taking it seriously or giving it the priority it deserves. Your first step once community service is missed, is to go back to the office where you signed up, ASAP, explain the reasons for missing your community service and ask politely to reschedule your missed date(s). Unfortunately many counties are very inflexible in allowing missed dates to be rescheduled. Perhaps it is so that they are not inundated with requests to reschedule which would lead to defendants essentially doing the community service when they felt like it rather than when they were ordered to. Make sure you document the date and time of who you spoke to as well as their name.<br />
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Assuming the community service office was unable or unwilling to reschedule your missed dates, reach out to your attorney and ask them to intervene on your behalf. They too should document their efforts. If neither of these solutions work, I recommend that you do the community service anyway. Take the initiative to find a non-profit organization, speak to someone in charge and ask them how you go about volunteering. Complete all of the missed hours with this company BEFORE your court date. Ask a supervisor in the non-profit company to write a letter to the judge on the company stationery, explaining what the charity does, the dates and times you volunteered, and what tasks you performed during those hours. They should provide their contact information in case a court clerk needs to verify this information. <br />
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Now this strategy is not guaranteed to keep the judge from re-sentencing you to jail but it should maximize that possibility as you did complete the hours just not in the manner proposed. The judge will likely allow you to reschedule your missed time with the program originally intended.Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-18799285810119404132012-10-01T11:00:00.001-07:002012-10-01T11:00:32.888-07:00Richard Southard in the News...Links to news articles from around the web regarding my representation of actor Stephen Baldwin:<br />
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<a href="http://www.nydailynews.com/new-york/stephen-baldwin-pleads-guilty-article-1.1171964">http://www.nydailynews.com/new-york/stephen-baldwin-pleads-guilty-article-1.1171964</a><br />
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<a href="http://www.nypost.com/p/news/local/stephen_baldwin_pleads_guilty_to_ioDy78lDyySrRcUXzVgvfJ?utm_medium=rss&utm_content=%0a%20%20%20%20%20%20%20%20Local">http://www.nypost.com/p/news/local/stephen_baldwin_pleads_guilty_to_ioDy78lDyySrRcUXzVgvfJ?utm_medium=rss&utm_content=%0a%20%20%20%20%20%20%20%20Local</a><br />
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<a href="http://news.yahoo.com/stephen-baldwin-settles-ny-driving-case-attorney-says-154314516.html" target="_blank">http://news.yahoo.com/stephen-baldwin-settles-ny-driving-case-attorney-says-154314516.html</a><br />
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<a href="http://abcnews.go.com/Entertainment/wireStory/stephen-baldwin-settles-ny-driving-case-pays-fine-17366296">http://abcnews.go.com/Entertainment/wireStory/stephen-baldwin-settles-ny-driving-case-pays-fine-17366296</a><br />
Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com2tag:blogger.com,1999:blog-4044880847435460434.post-37885589329448632362012-08-10T11:53:00.002-07:002012-08-10T11:53:39.863-07:00If I Gave Someone Drugs Without Asking for Money, Can I Still be Charged with Selling Drugs?The answer is yes as New York has a very broad definition of the word "sell."
The law is written that way to help the DA prosecute drug networks that use a
different individual to handle the drugs from the individual handling the money.
New York Penal Law Section 220 defines "sell" as to "sell, exchange, give or
dispose of to another, or to offer or agree to do the same."<br />
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<div class="MsoNormal">
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 <a href="http://www.reasonabledoubtny.com/">www.reasonabledoubtny.com</a></div>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-87293427056205355932012-08-09T13:21:00.000-07:002012-08-09T13:21:48.697-07:00Will Passing a Drug Test Help Me Get Out of a Marijuana Possession Charge?<span style="font-family: arial; font-size: 13px;">The answer depends on what section of Penal Law 221 you are charged with. Since marijuana possession does not require that you ingest it to be found guilty of possessing it, a clean drug test is not a defense to possession. In most instances, I doubt that a judge would allow it into evidence as being relevant to whether you possessed marijuana. The one exception may be if you are charged with PL 221.10 (1) under the theory that it was burning and if the offer testifies that he observed you smoking a lit marijuana cigarette. If those are the facts in your case, then you may be able to introduce a negative drug test if it was taken within a short time of the alleged ingestion. There is a move to decriminalize additional marijuana crimes under this section of the Penal Code and your attorney should be able to take advantage of that to dismiss your charges. If this is your first offense, you are eligible for an ACD (Adjournment in Contemplation of Dismissal) pursuant to CPL 170.56 which would dismiss and seal the charge after one year if certain conditions are met A judge may even grant your lawyer's application for this ACD over the DA's objection. Speak to an experienced criminal defense attorney in your county and I expect you will get a positive result.</span><br />
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<span style="font-family: "Arial","sans-serif"; font-size: 10.0pt; line-height: 115%;"><i>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</i><o:p></o:p></span></div>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com4tag:blogger.com,1999:blog-4044880847435460434.post-38139687747176466562012-06-20T18:14:00.002-07:002012-06-20T18:14:46.547-07:00Brooklyn Judge throws out drinking in public summons because of no laboratory testingAt 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.<br />
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<i>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 <a href="http://www.reasonabledoubtny.com/">www.reasonabledoubtny.com</a></i>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-47244735362985646762012-06-20T16:06:00.001-07:002012-06-20T17:07:42.444-07:00What happens if I violate my ACD by being arrested again for shoplifting?<br />
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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.
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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.<br />
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<i>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 <a href="http://www.reasonabledoubtny.com/">www.reasonabledoubtny.com</a></i>
</div>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-76021299202106317702012-06-12T19:40:00.000-07:002012-06-12T19:41:28.568-07:00New York Moves to Decriminalize MarijuanaThere 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"<br />
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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.<br />
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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, <a href="http://www.amsterdamnews.com/politics_noir/decriminalize-pot/article_df8e7626-b0cf-11e1-bd57-0019bb2963f4.html">http://www.amsterdamnews.com/politics_noir/decriminalize-pot/article_df8e7626-b0cf-11e1-bd57-0019bb2963f4.html</a><br />
<br />
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.<br />
<br />
<i>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 <a href="http://www.reasonabledoubtny.com/">www.reasonabledoubtny.com</a></i>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-44097378384233867282012-06-12T18:48:00.001-07:002012-06-12T18:48:50.373-07:00New York Toughens Domestic Violence LawsNew 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.<br />
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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.</div>
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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. </div>
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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.<br />
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<i>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 <a href="http://www.reasonabledoubtny.com/">www.reasonabledoubtny.com</a></i>
</div>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-50692994856489102922012-06-08T14:12:00.001-07:002012-06-08T14:12:49.670-07:00Caught shoplifting but police were not called, do I have a criminal record?<br />
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<span style="background-color: #cc0000; font-family: sans-serif; font-size: 12px; line-height: 18px;">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.</span><br />
<span style="background-color: #cc0000; font-family: sans-serif; font-size: 12px; line-height: 18px;"><br /></span></div>
<div class="MsoNormal">
<i>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 <a href="http://www.reasonabledoubtny.com/">www.reasonabledoubtny.com</a></i>
</div>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com0tag:blogger.com,1999:blog-4044880847435460434.post-43398489608053768402012-05-31T14:43:00.000-07:002012-05-31T14:43:29.054-07:00How can I be charged with CPCS 4 when the pills were recovered from under the passenger seat?Q: How can I be charged with Criminal Possession of a Controlled Substance in the Fourth Degree when a bag of 96 pills were recovered from under the passenger seat of a car with three occupants and I was in the driver's seat<br />
<br />
A: You can be charged under the "automobile presumption" which can be found in New York Penal Law Section 220.25. It states<br />
<span style="color: white; font-size: 13.5pt;">"<span style="background-color: #660000;"> </span></span><span style="background-color: #660000;"><span style="color: white; font-family: Arial, sans-serif; font-size: 9pt;">1. The presence of a controlled substance in an automobile,
other than a public omnibus, is presumptive evidence of knowing possession thereof by each and every person in
the automobile at the time such controlled substance was found; except that such presumption does not
apply (a) to a duly licensed operator of an automobile who is at the time
operating it for hire in the lawful and proper pursuit of his trade, or
(b) to any person in the automobile if one of them, having obtained the
controlled substance and not being under duress, is authorized to
possess it and such controlled substance is in the same container as when he
received possession thereof, or (c) when the controlled </span><span class="apple-converted-space"><span style="color: white; font-size: 13.5pt; mso-themecolor: background1;"> </span></span><span style="color: white; font-family: Arial, sans-serif; font-size: 9pt;">substance is concealed upon the person of one of the occupants."<span class="apple-converted-space"> </span></span></span><br />
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While this statute allows you to be charged it does not mean that they can prove the case against you beyond a reasonable doubt. The DA will have an even harder time proving the case against you if the car belonged to someone other than yourself. Beyond the issue of "who possessed the drugs", you may also have grounds to challenge the search of the vehicle by the police. <br />
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<div class="MsoNormal">
<i>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 <a href="http://www.reasonabledoubtny.com/">www.reasonabledoubtny.com</a></i></div>
</div>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-50088767969787831252012-02-09T12:22:00.000-08:002012-02-09T12:22:39.468-08:00I received an ACD some years ago and want to enlist in the Army, will it show up?<br />
I would act under the assumption they can see it and be honest about it. It should not affect your enlistment; in fact, here is what the statute has to say about your Adjournment in Contemplation of Dismissal. I can't tell if you received one under CPL 170.55 or 170.56 so I'll include both.<br />
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CPL 170.55(8) The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.<br />
<br />
CPL 170.56(4) Upon the granting of an order pursuant to subdivision three, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.<br />
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<b>Legal disclaimer:</b> <i>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</i>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-76368488605891087172012-02-09T11:49:00.000-08:002012-02-09T11:50:14.452-08:00Someone filed a criminal complaint against me, what do I do?<b>I found out someone filed a complaint against me. Should I call the precinct with the case number and speak to the officer or just wait to hear from the cops? </b><br />
<b><br /></b><br />
<span style="font-family: Calibri, sans-serif; font-size: 11pt; line-height: 115%;">You
have a 5th Amendment right not to speak to the police. I strongly urge you to
exercise that right as it is entirely possible that the police do not have
enough evidence to arrest you at this moment. Any interaction with the
police could help them build a case against you.<br />
<br />
It is typical that the police will call you and ask you to come down to the
precinct to "hear your side of the story". They are not trying to
help you and will NOT let you talk your way out of being arrested. They are
merely trying to build a stronger case against you by getting you to admit any
details that corroborate the complaint against you. It is usually the case that
they have already made up their mind to arrest you before you step foot in the
precinct. The police are under very little obligation to investigate the
accusations made before arresting someone.<br />
<br />
Moreover, the police rarely record your discussion so it is entirely possible
that the police will claim you said something that you did not say. You would
not believe the number of clients who have told me that the police altered
their statements or fabricated them altogether. The only way to guarantee that
doesn't happen is to have an attorney speaking on your behalf during the
investigation stage.<br />
<br />
Once you hire an attorney, they can quickly find out the status of the
investigation, whether the police want to question or arrest you and in the
unfortunate circumstance where you will be arrested, the attorney can arrange a
mutually convenient time for your voluntary surrender that will minimize your
time spent in the system. This will also prevent the unpleasantness of the
police showing up to your home or place of business and dragging you away in
handcuffs. An attorney can also make sure that any lineups or
identification procedures conducted are done so fairly and without prejudice or
prompting from the police.</span><br />
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<span style="font-family: sans-serif;"><span style="font-size: 12px; line-height: 18px;"><br /></span></span><br />
<b style="text-align: -webkit-auto;">Legal disclaimer:</b><span style="text-align: -webkit-auto;"> </span><i style="text-align: -webkit-auto;">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</i>
</div>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-80916293280022832262012-01-28T13:09:00.000-08:002012-01-28T13:11:40.117-08:00Xbox: 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, <a href="http://arstechnica.com/tech-policy/news/2012/01/searches-and-xbox-live-stakeouts-how-cops-investigate-consoles.ars?utm_source=rss&utm_medium=rss&utm_campaign=rss" target="_blank">CSI: Xbox by Nate Anderson</a>.<br />
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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. <br />
<br />
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.<br />
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<b>Legal disclaimer:</b> <i>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</i>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-80908318895976251072012-01-28T12:43:00.000-08:002012-01-28T12:44:22.178-08:00Do 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 <a href="http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf">held</a> in <u>U.S. v. Jones</u> 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.Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com0tag:blogger.com,1999:blog-4044880847435460434.post-46970102851113788522012-01-28T12:21:00.000-08:002012-01-30T11:44:48.643-08:00Should 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). <br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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<b>Legal disclaimer:</b> <i>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</i>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-19072264337996881682012-01-14T08:39:00.000-08:002012-01-14T08:45:21.382-08:00Will 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.<br />
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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.<br />
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<b>Legal disclaimer:</b> <i>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</i>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-19996234414865292082012-01-11T14:34:00.000-08:002012-01-11T14:35:14.119-08:00My 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.<br />
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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.<br />
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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. <br />
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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.<br />
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In short, don't enter a plea bargain if there is even a slight chance that you may change your mind later on.<br />
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<br />
<i style="background-color: #701c1c; color: white; font-family: Arial, Tahoma, Helvetica, FreeSans, sans-serif; font-size: 13px; line-height: 18px;">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</i>
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<br />Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com1tag:blogger.com,1999:blog-4044880847435460434.post-26326669271201301652012-01-10T10:31:00.000-08:002012-01-10T10:32:32.443-08:00How much time could someone get if they were just a lookout in a robbery?<br />
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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: <b><i>When one person engages in conduct which constitutes an offense, another is criminally liable for such </i></b><b><i>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.</i></b></div>
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This definition requires the prosecutor prove both of the following elements beyond a reasonable doubt: <b><i></i></b><br />
<div style="display: inline !important;">
<b><i>(1) That the defendant solicited, requested, commanded, </i></b><b><i><b>importuned, or intentionally aided that person [or persons] to </b></i></b><b><i><b>engage in that conduct, and </b></i></b><b><i><b>(2) That he/she did so with the state of mind required for the </b></i></b><b><i><b><i></i></b></i></b><br />
<div style="display: inline !important;">
<div style="display: inline !important;">
<b><i><b><i>commission of the offense.</i></b></i></b></div>
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<b><i><b><i>
</i></b></i></b><br />
<b><i><br /></i></b><br />
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.<br />
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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. <br />
<br />
<i>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</i>Anonymoushttp://www.blogger.com/profile/10045791899578851830noreply@blogger.com0