Help support expungement in New York

One of the questions I am asked most frequently is "How do I go about getting my misdemeanor/felony criminal record expunged?"  It is incredibly frustrating because no matter how well this person has done with their life since their earlier legal troubles, I have to tell them that in New York, they can't.   Now some more unscrupulous lawyer will try to make some money off of these people by offering to make a motion to vacate judgment under Criminal Procedure Law Section 440 but absent newly discovered evidence they are rarely successful and very costly.

Why is it important?
In this time of economic hardship, it is increasingly difficult for those with a criminal past to find legitimate legal employment. Many New Yorkers continue to be punished for mistakes made in their youth despite having lived a law abiding life since their earlier trouble. In fact, many have gone on to build successful families and careers yet they still are haunted by the stress and stigma of having a criminal record. Some have gone decades without new trouble and yet they are still denied the opportunity at expunging their conviction.

At a time when society should be encouraging their continued success, it is instead stonewalling their hopes of a fresh start. With new laws in New York which permit the sealing of prior convictions upon successful completion of DIVERSION or similar DTAP Drug Court treatment, it is time for the legislature to right this inequality. Why should someone with up to four convictions get the chance at a clean record when they haven't shown the ability to lead a law abiding life but not others adversely impacted by their convictions? Of course, I am not suggesting that there should be an automatic sealing of records. However, there should be some mechanism where these individuals can petition the courts and allow their story to be heard. As it stands today, the only hope that some New Yorkers have to get their records expunged is to commit new crimes and get sentenced to an eligible drug treatment program and that is not justice.

So of late, I have amended my answer to this question of expungement, now recommending the askers to take action and contact their State and local legislators to urge them to pass this legislation which will benefit themselves and many others like them.  In the spirit of leading by example, I have created my own petition on Change.org collecting signatures to be forwarded to lawmakers at a future date. 
Sign my petition here!

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

Will the Supreme Court end "life without parole" sentences for juvenile murderers?

Last year, the Supreme Court held in the case of Graham v. Florida, 2010 that sentencing defendants younger than 18 years of age to life with parole for "non-homicide" convictions violates the 8th Amendment prohibition against cruel and unusual punishment.  Prior to this decision,  "non-homicide" offenders were being sentenced to die in prison for crimes committed when they were 13 and 14 years-old without the ability to demonstrate as Justice Brennan wrote, "maturity of judgment and self-recognition of human worth and potential."  The Supreme Court had previously prohibited imposing the death sentence on defendants younger than 18 in Roper v. Simmons, 2005.

So, what about juveniles with homicide convictions?

This term, the Supreme Court agreed to consider two more cases dealing with juvenile life without parole cases: Jackson v. Hobbs and Miller v. Alabama. The Court is now examining whether it should prohibit life without parole sentences for juvenile murderers as violative of the 8th and 14th Amendments. It is important to note that the Supreme Court is not considering making it illegal to sentence a juvenile who has committed murder to life in prison. At issue is whether these juveniles will at some point in their lives be able to attempt to demonstrate the qualities of reform that Justice Brennan spoke to in Graham.

We won't know for certain until next year but given the trend in the Court's recent decisions in the area, and the way that the majority of the States in the country handle this issue, it would be surprising if they do not.

Do I have to take a breathalyzer if I am stopped and suspected of DWI?

The asker went on to comment "I thought a refusal was an admission of guilt."  The questioner is correct.  A refusal to comply with an officer's request to submit to a breathalyzer test can be used by a prosecutor in their case against you as an admission of guilt.  They will argue that the reason you did not take the test is because you knew that you would fail it if you did.  However, that doesn't really address your initial question since it's more of a consequence of your refusal.

There is no constitutional right to drive; it is granted by the States. As a result, each State is free to set whatever conditions they want on your ability to exercise that right, so long as they are not discriminatory.  Usually these restrictions are done in the name of public safety as this one was.  New York State requires that if you are driving on their roads and an officer has probable cause to believe that you are driving under the influence, they can request you submit to a breathalyzer exam.  They cannot force you to submit to this test against your will.  Writer's Note: In cases involving serious accident or injuries, prosecutors may ask a judge for a warrant giving them permission to take your blood for analysis, even if you refuse to give it voluntarily.

In the more common case, your refusal if lawfully conducted can now be used as evidence against you at trial and the state will revoke your driving privileges for at least one year. You are entitled to have a "refusal hearing" at the Department of Motor Vehicles before your license is revoked within 15 days and you should be provided notice by the court clerk.

There are many other issues surrounding refusals. "the two-hour rule"; "right to counsel"; "should I blow?", "is the DMV hearing winnable?" to name a few.  I will try to address some other issues in future blogs so feel free to ask any specific questions if you want.

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?

This one's actually a trick question, for now anyway.  The Supreme Court of the United States is deciding this issue this term in the case of U.S. v. Jones, and were scheduled to hear arguments from both sides today.  In Jones, the Washington DC Circuit Court held that a month-long GPS tracking device placed without a warrant was unconstitutional.  The Department of Justice disagrees and is appealing to the Supreme Court.  The government's argument centers on the argument that people have no expectation of privacy when they are driving on a public road and the police are currently allowed to tail or follow vehicles in an investigation without a warrant.  Personally, I agree with the DC appellate panel, who reasoned that, "A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there."

It is very easy to see how this investigative technique is ripe for abuse and for further eroding our civil liberties.  Ironically, in the Jones case, FBI agents did actually get approval for a warrant to use the GPS tracking device on Mr. Jones' car; however, they didn't bother to install it until the day after the warrant expired.  I guess it couldn't have been that much of a burden  on the government to get a warrant first, after all, if they didn't even make installing the device a priority.  I will update this entry after the Supreme Court rules.

My prediction is that the Supreme Court will rule that the scope of surveillance and information collected requires a warrant. Feel free to add your prediction in the comments section.

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 can I do to drop an Order of Protection in New York?

There are two types of Orders of Protection (OOP) in New York, usually referred to as a Full order and Limited order of protection. The full order prohibits all contact of any kind,while a limited order allows contact but prohibits specific conduct (assaults, threats, harassment, etc.) They are requested by prosecutors in all domestic violence cases, (whether or not the "victim" wants one) and are almost always granted by the judge.  If a defendant violates an OOP, he can be charged with Criminal Contempt of Court for disobeying the judge's Order.  This is true even if the contact with the protected person was with their consent or initiated by them. In other words, if there is a full order of  protection in effect, the "victim" cannot talk or have contact with the defendant  without the defendant committing a new crime.


So what can a victim do if a judge has issued an OOP on your behalf and you do not want one?  Contrary to popular belief,  you can not drop or get rid of an order of protection yourself because only a judge can modify or eliminate an existing order.  Instead, I recommend a three-prong approach you should take if you find yourself in this situation. First, set a realistic goal.  By that I mean seek to have the OOP changed to a limited order of protection instead of no OOP at all.  Since the conduct that will be prohibited in a limited OOP is the type of conduct that is impermissible under the law anyway, it makes what you are asking the judge to do seem much more reasonable. Second, you need to let the defendant's attorney know that you do not want an OOP so that they will argue to the judge on your behalf when the case is on in court. You should also let the prosecutor that is handling the case know know your feelings as well.  The hope is that they will go along with recommending the change or at least not bjecting to it if asked by the judge. Therefore, it's important that you  be clear in expressing to the prosecutor your reasons for not wanting the OOP and make sure they know that no one is threatening or forcing you into this decision. Finally, you should coordinate with the defendant's atttorney to appear in court to personally let the judge know how you feel. There is no guarantee that the judge will hear you out but this will likely be your best chance at getting the OOP changed. Remember to bring proper ID with you to court and to keep as far away from the defendant as possible in the courtroom so as not to cause any additional problems with the court.

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

Can my case be dismissed if the Police did not read me my Miranda Warnings?

The Miranda warnings, as they're now known, came out of the Supreme Court case, Miranda v. Arizona, as an effort to protect a citizen's 5th Amendment right to remain silent.  In short, the police are to alert suspects that they have the right to remain silent (and not incriminate themselves); that if  they choose to speak, whatever they say can and will be used against them in proving their guilt; and that they have a right to an attorney present during questioning even if they can't afford an attorney. 
(Author's Note: This right should ALWAYS be exercised!) 

The Miranda warnings are only required to be given by police when a suspect is in custody and being questioned. (custodial interrogation).  Hence, if you are not in custody or you make statements without having been questioned, then the Miranda protections do not apply.  The easiest way to find out if you are in custody if you are not sure is by asking the police officer if you are free to leave.

If the police do question you while you're in custody and do not read these warnings to you, then your lawyer may seek to prevent or limit the prosecutor's ability to use these statements against you.  It does not mean that the charges against you are dismissed, as the prosecutor is allowed to use any other evidence against you that was lawfully obtained to try and prove their case beyond a reasonable doubt.  There are a number of legal decisions discussing the nuances of this area of law so I highly recommend discussing the particular facts of your case, with an experienced criminal defense attorney like myself.

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

When getting a Disorderly Conduct, what does a conditional discharge mean?

A conditional discharge means that you must complete certain conditions set by the judge for the case to be truly over.  In the case of a disorderly conduct, the conditional discharge period is one year and upon the successful completion of the conditions, the case is sealed.  The conditions vary from case to case but they all include the condition that you stay out of any new trouble for one year.  The most common other conditions include performing community service, paying fines and/or court surcharges, paying restitution to a victim, abiding by court orders of protection, completeng any court mandated programs, and abiding by any suspension of driving privileges.  After the period of conditional discharge is over, it is not necessary for you to return to court to have the case sealed, as it is done automatically.

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