When someone is charged with a DWI in New York City, or elsewhere in the state such as Westchester County or Rockland County, there are numerous complex issues that routinely arise. In every such DUI case, it is critical that your DWI lawyer examine and potentially challenge everything from the initial basis for the police pulling over the vehicle and the breathalyzer test or tests to the blood-alcohol content (BAC reading) and more. While car stops are routine in daily life even if not for a VTL 1192 drunk driving crime – it’s hard to imagine driving for an hour on a busy road and not seeing a car pulled over by a police officer for one reason or another. No matter the offense charged, NY vehicular crimes can be surprisingly complex from a legal point of view. One of the issues in this area of the criminal justice system that often arises is when you, an accused, have a right to counsel before submitting to a “chemical test” and what type of test falls under this umbrella.
Orders of Protection are issued in the criminal courts of every county throughout the State of New York every day, from Brooklyn to Westchester, Manhattan to Rockland. They are issued primarily by Family Courts in the context of Family Offense Petitions and Criminal Court or County/Supreme Court in the context of criminal cases. Orders of Protection are often misunderstood or not fully understood, not only by those they are meant to restrict and protect, but by law enforcement officers, child protective services, probation officers, and other people in the field. Add to this to the unfortunate reality that Restraining Orders are sometimes misused by those they are mean to protect. Even if not anywhere near the majority of cases, claimed victims sometimes proactively use these Stay Away Orders to illegitimately get the restricted party arrested or otherwise benefit themselves beyond the intent of the issuance.
With the above in mind, this blog entry briefly addresses the bare bones pleading requirement for misdemeanor Criminal Contempt in the Second Degree, New York Penal Law 215.50.
Whether advocating for a complainant in a criminal prosecution or a plaintiff in a civil lawsuit, Child Victims Act attorneys know that sex abuse cases involving children are some of the most disturbing and difficult legal matters they can handle even if the victim of these acts are now adults. Fortunately, however, with the passage and enactment of New York’s Child Victims Act and its year-long “look back” period and expansion of time frames allowing for the commencement of either a civil or criminal action, victims of sexual abuse and molestation can move one step closer to holding their abusers accountable up and down the state from New York City, Long Island and the Hudson Valley to Albany, Syracuse and Buffalo. While prosecutors can pursue felony charges against an alleged offender years after victimization and until a complainant is 28 years old, those who seek their victimizer’s accountability and financial liability, have a different set of rules to follow. Some of these rules and frequently asked questions about the statute are addressed below.
Commencing at the stroke of midnight on January 1, 2020, New York Bail Reform, as it is commonly referred, takes discretion and authority from both judges and prosecutors and shifts power to far more strict and specifically outlined statutory guidelines. Codified throughout New York Criminal Procedure Law 500, a judge’s ability to set bail in the tens or hundreds of thousands of dollars at the request of the District Attorney is limited and replaced with legislated standards. In fact, the language of CPL 510.10(1) is quite clear. “The court shall release the principal pending trial on the principal’s own recognizance, unless it is demonstrated and the court makes an individualized determination that the principal poses a risk of flight to avoid prosecution. If such a finding is made, the court must select the least restrictive alternative and condition or conditions that will reasonably assure the principal’s return to court.”
Although this blog entry is no substitute for understanding bail or the advocacy of your criminal lawyer at your arraignment, the following provides some basic principles and provisions that now govern the criminal justice system.
A long time coming in the minds and hearts of many a child advocate, New York Governor Andrew Cuomo signed the “Raise the Age” legislation into law this past April. As a result, juveniles, kids, youth, children, or simply boys and girls aged 16 and 17 will, depending on the crimes, find themselves prosecuted in New York’s Family Courts in lieu of New York’s Criminal Courts. More specifically, commencing October 1, 2018 for sixteen-year olds and October 1, 2019 for seventeen-year olds, the vast majority of arrests and criminal cases will be heard before a Family Court Judge from the inception of the criminal case or after being transferred from the “regular” or “adult” Criminal Court’s Youth Court Part.
Not a full examination of the pending change in the New York juvenile justice system, the following provides value insight that can be further examined with your New York criminal lawyer or juvenile defense attorney.
Raise the Age legislation, codified in part in CPL Article 722, has brought New York more in line with the majority of the nation in dealing with criminal charges and accusations against certain teenagers. The legislation was also largely a compromise between law enforcement and the proponents of these kinds of sweeping laws. The result, which sought to create a system where 16 and 17 year olds could still be prosecuted as adults in certain situations, is a complex system that leaves a healthy amount of grey area for juvenile and adolescent defense lawyers, courts and District Attorneys to interpret. Much of this is due to the creation of an entirely new class of offender – the “adolescent offender.” CPL 1.20(44) defines such a person as one charged with a felony committed on or after October 1, 2018 when he or she was sixteen years of age or on or after October 1, 2019, when he or she was seventeen years of age. When a person in this classification is charged with a felony, their case first goes to an adult Criminal Court where it remains, just as it always has, or, subject to various rules on removal out of the adult criminal justice system, to Family Court. These rules depend in large part on the particular crime with which the adolescent offender is charged as well as the facts and circumstances of the underlying conduct. Other rules aside, and the subject of this blog, if and when law enforcement can establish “extraordinary circumstances” as prescribed by CPL 722.23(1)(d), prosecutors can prevent a judge from transferring an adolescent offender’s case from an adult Criminal Court to a youth oriented Family Court thereby challenging the principles of treating children different than their adult counterparts.
DWI, DUI and DWAI arrests routinely involve complicated issues beyond those that most non-attorneys contemplate. Yes, criminal lawyers will question the reason the NYPD or NY State Police stopped their client’s vehicle. Yes, legal counsel will attack the veracity of an officer’s claims as to how their client allegedly failed the walk-and-turn, one-leg, or other field sobriety test. These and other issues aside, one of the more complex matters involving New York drunk driving crimes and driving while intoxicated offenses is the way in which blood alcohol concentration breath tests are secured and treated in alcohol-related offenses. While New York treats breathalyzer and intoxilyzer tests results as a form of sel-incrimination and such an exam is a non-waivable obligation on the part of a motorist whenever a police officer deems such a test necessary based on reasonable grounds, there are guidelines law enforcement must nonetheless follow. One such rule, known as the “two-hour rule,” is codified in VTL 1194(2).
If George Orwell’s satirical theory of equality in “Animal Farm” applied to the New York Penal Law, then all knives would be created equal even if certain knives were more equal than others. Fortunately, as any criminal lawyer knows, the Penal Law does not allow for such untenable situations where no matter the knife or blade, possession would always constitute a misdemeanor or “more equal” felony offense. That said, and as routinely addressed by defense attorneys, depending on the blade in question, such as a switchblade that is a per se violation of PL 265.01(1), some knives are automatically considered weapons while others mandate that they are both “dangerous” as prescribed by law and intended to be used in an unlawful manner. These latter violations fall under PL 265.01(2).
In a recent Manhattan Criminal Court case, a presiding judge found that a knife disguised as a pen, aka, a penknife, did not violate the law as pleaded in the accusatory instrument and, therefore, dismissed the case for a lack of legal sufficiency. Evidently, all knives really are not created equal.
As a defendant already under arrest or as an accused or target confronted by law enforcement during an investigation, one of the most important rights you can ever exercise is your right to remain silent. Whether you are legally in custody or you are lawfully being interrogated by a police officer, detective, state trooper or DA investigator, once you invoke this right, all questioning must cease once you ask for your lawyer. Should further statements be elicited, anything you say as it relates to the crime or investigation will not be admissible against you in the prosecution’s case in chief. If you fail to ask for a lawyer or an attorney, then you should expect that anything you say can and will be used against you in court.
With the above in mind, what happens if you exercise your Miranda Rights before one detective or agent but hours later find yourself before different officers? Does it matter if law enforcement is the same, meaning, all from the NYPD? Would you have to invoke your rights again if you changed hands from one agency to another? For that matter, what if law enforcement questioned you while in custody and were honestly were unaware of your prior demand? In People v. Roman, decided by the Appellate Division, First Department on 9/24/2019, the Court addressed these critically important issues.
While the law is clear and known to criminal lawyers practicing throughout the New York City region, when one thinks of menacing behavior one often thinks of threats with words, body, weapons or some combination of the three. Despite what those outside the legal profession may think, the Penal Law and court decisions that define the crime of Menacing is clear. Words alone are insufficient. More is needed. In a recent decision addressing the sufficiency of Third Degree Menacing, New York Penal Law 120.15, a trial court once again examined the statute providing further clarity to an often litigated section of the Penal Law.