Tuesday, November 15th, 2011

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…

Saturday, November 12th, 2011

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…

Thursday, November 10th, 2011

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…

Tuesday, November 8th, 2011

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…

Monday, November 7th, 2011

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…

Saturday, November 5th, 2011

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…

Tuesday, November 1st, 2011

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…

Saturday, October 29th, 2011

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

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

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

Wednesday, October 26th, 2011

The answer depends on who is paying for the lawyer.

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

However, if your attorney is a public defender assigned to you by the court, you may be stuck.  Because of their enormous workload, it is likely that your public…

Thursday, October 20th, 2011

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

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

Unfortunately for those in the sex trade industry who choose to work in New York, instead of the counties in Nevada where it’s completely legal, New York has gotten more aggressive…