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.
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.
With the above in mind, my words cannot accurately reflect the emotions – from anxiety and fear to joy and relief – that wash over the vindicated when the battles commence and rage until the almost literal war is over. It is the target of the wrongful, hurtful and traumatic claim that lives through these emotions who can best articulate them. The following is one such client’s review that makes me proud of my efforts and of my client’s strength while providing me with immeasurable satisfaction and relief that I delivered her the justice she unequivocally deserved.
In most negotiated guilty pleas throughout New York City’s Criminal and Supreme Courts, as well as town, village and County Courts throughout Rockland, Westchester and the Hudson Valley, defendants are expected to waive their right to appeal their conviction and sentence. From one point of view, this makes sense. After all, if a defendant and his or her attorney have negotiated a plea deal that they are happy with, why would the defendant turn around and try to unwind what transpired with an appeal to the Appellate Division or Appellate Term. One simple answer is that people change their minds, which is typically not a reason to vacate a guilty plea. However, that change of mind often goes hand in hand with new information or guidance from some other source – information that the defendant’s counsel and/or the sentencing court failed to provide to the defendant when they made the decision to plead guilty. Depending on the nature and importance of that missing information, the voluntariness and intelligence of a guilty plea can be called into question. Despite this, when defendants are routinely expected to waive their right to appeal as part of the plea deal, this often forecloses any otherwise available avenue of vacating that uninformed or underinformed plea.
UPDATE: WEINSTEIN INDICTED BY MANHATTAN GRAND JURY
According to a statement released by Harvey Weinstein’s counsel and widely reported throughout the media, the former producer, and arguably the most visible catalyst of the #Metoo movement, will not testify before a Manhattan Grand Jury where he will likely be charged with numerous violent felony offenses. According to Weinstein’s attorney, the accused mogul will not testify because prosecutors “unfairly denied [Weinstein] access to critical information about this case that [he] needed to defend him[self] before the grand jury[.] Mr. Weinstein’s attorneys decided that there was not sufficient time to properly prepare Mr. Weinstein.” Weinstein’s statement further read that due to “[n]ot having access to these materials is particularly troubling in this case, where one of the unsupported allegations is more than 14 years old and the Rape allegation involves a woman with whom Mr. Weinstein shared a 10-year consensual sexual relationship that continued for years after the alleged incident in 2013[.]”
Although some of the above statement likely has merit, keep in mind that prosecutors are not mandated to share all their evidence to a defendant at this stage in the legal process. A bit of a play to gain some favorable public support by asserting a lack of fairness on the prosecution’s part is certainly one defensive strategy, but not the sole or central reason Weinstein is not testifying. Instead, what is not contained within the four corners of a press release or public statement is likely why Weinstein is shrewdly refusing to exercise his right to testify.
A new law has recently gone into effect in New York State which fundamentally changes a basic tenant of New York Criminal Practice. New York was the only state in the United States that still did not allow evidence of a prior identification made by a witness via a photo array to be introduced at trial. The thought by New York criminal lawyers has always been that presentation of a photo array to a jury would suggest that the defendant has been in trouble before – why else would they have a photo of him at the time of the identification procedure. This was deemed to be unfair to the defendant and improper. However, many felt that this concern was outdated, and New York decided to join the vast majority of other states in allowing for the prior photo array to be introduced at trial, but with very strict requirements on how the photo array is compiled and how the identification procedure is conducted. Strict requirements or not, this new allowance will have a wide-reaching and significant impact on criminal prosecutions in New York City, including Manhattan, Brooklyn, the Bronx and Queens, and all the way “upstate” to Rockland County, Westchester County, Putnam County and beyond.
Tension between religious groups and ignorance about others’ religious beliefs can manifest its head in very ugly and illegal ways. Sometimes it is violence against individuals who share a different religion while other times the target of these attacks are the physical houses of worship – synagogues, churches, mosques, temples and other places for prayer. Regardless, New York State gives the police and District Attorneys the tools to protect people rightfully practicing their religion and their respective places for prayer. Whether punishable as misdemeanors or felonies, the following blog entry briefly identifies and discusses some of the chargeable offenses that one could face upon arrest for damaging or defacing a house of worship or obstructing those who seek to exercise their freedom of religion.
I was arrested for a felony in Westchester County. The Westchester County police charged me with Second Degree Assault. Detectives from the Yonkers Police Department arrested my sister for felony drug possession. Whether you are arrested in Yorktown Heights, Mount Pleasant, Ossining, Scarsdale, North Castle or Pelham, any felony crime in Westchester County follows the same potential trajectory from arrest and arraignment through indictment or Superior Court Information (SCI).
Although the crimes may vary – Second Degree Criminal Mischief, Third Degree Grand Larceny, Second Degree Criminal Possession of a Weapon – Westchester County felony arrests are either disposed of in a local Justice Court as a misdemeanor, violation or dismissal, or are removed to the County Court in White Plains for prosecution as a felony. This blog entry will briefly address the process followed by the Westchester County District Attorney’s Office. Should you require further information about Westchester County felony crimes and the criminal process, consult with your criminal defense attorney.
Animal cruelty, whether in violation of a criminal statute or an otherwise intentional, callous and malicious act or acts, is simply horrendous. Whether one wears the hat of a District Attorney, criminal defense lawyer, judge or person who merely cares about the well-being of others living things, committing acts of violence and seeking to cause pain to animals is unconscionable. When you commit certain acts against animals, regardless of the size, age, or health of the same, your actions may be punishable as a crime pursuant to Agriculture and Markets Law 353 or 353-a[i]. These crimes, “Overriding, Torturing and Injuring Animals” and “Aggravated Cruelty to Animals” respectively, are class “A” misdemeanors and “E” felonies. While the former is punishable by as much as one year in a county jail, the latter has a potential sentence of up to four years in prison.
The issue addressed by this blog is to briefly describe the two offenses and differentiate the crimes.
Nobody likes an answer of “maybe,” but the practical reality to the question of whether a conviction or criminal record for Assault in New York can be sealed is partially yes and partially no. First, with the negative, New York has no provision in its criminal procedure law to expunge your conviction for any degree of Assault. However, there is a remedy for anyone convicted of a non-violent Assault (that’s right, non-violent) to seek a sealing of their criminal conviction from their public criminal record. Doesn’t make sense? Bare with me.
Assuming that you have no more than two misdemeanor convictions or one misdemeanor and one felony, the judge before whom you were sentence has the authority pursuant to New York Criminal Procedure Law 160.59 to seal your criminal conviction subject to a few relevant and critical points as to eligibility.