Articles Posted in Criminal Procedure

“Violence” and “violent” are both ugly words. In the New York Penal Law and New York Criminal Procedure Law, offenses that can cause catastrophic injuries, traumatic physical and emotional wounds and even death are designated as violent crimes. While each one of us may have a subjective view of what violent means in the context our respective lives, New York Criminal Procedure Law 70.02 specifically defines and differentiates New York violent crimes from all other offenses. The relevancy as to what is a violent crime and what is an “ordinary” offense is critical to any criminal case as well as to how a criminal defense attorney manages his representation of a client. As a preliminary matter, sentencing for violent crimes differ from other offenses and for those who want to pursue the sealing of their criminal record for up to two convictions in accordance with New York Criminal Procedure Law 160.59, any violent offense precludes such a remedy.

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Whether you want to lead off with the good or the bad, the fact remains that when you are looking to either expunge or seal your criminal convictions from your record in New York, the reality is exactly the same. The good news is that while sealing a violation and non-criminal plea or conviction has always been available, neither the expungement or sealing of criminal convictions were attainable to anyone with a criminal record in the State of New York. Fortunately, some, but not all of that, has changed with the passage of New York Criminal Procedure Law 160.59. While your sealing attorney can likely provide more insight into the differences and benefits of expungement and sealing, the former is not the type of relief that New York courts offer. Despite this, New York’s conviction sealing statute and law is beyond valuable to any person hoping to minimize the exposure of their criminal history and prevent most private and public employers and agencies from finding their old arrest.

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With the passage of New York Criminal Procedure Law 160.59, there have been countless questions by those convicted of crimes as to what criminal convictions seal, how many criminal convictions can seal and whether the results of a sealing are the equivalent or same as expunging a criminal record. Fortunately, as you can discuss in greater detail with a New York sealing lawyer, the answer to these questions, although somewhat confusing, are clear. This entry will not address the multiple sub sections of CPL 160.59, but it will identify specifically how many convictions you can seek to have “washed” from your public record. For greater analysis on the other issues identified above as well as the intricacies of New York’s sealing law, this blog and the New York Sealing Information Page has much more information for review.

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Although I couldn’t tell you the exact number, there are millions of people who come to New York City – its boroughs of Manhattan, Queens, Bronx and Brooklyn (technically Kings County) – on any given day. Whether they are commuters, tourists or here solely for a brief business stay, some of these people find themselves in hot water, aka, under arrest by the NYPD. If the crime charged is, for example, PL 155.25 or PL 165.40 for a shoplifting arrest at Macys or Century 21, PL 220.03 for getting busted doing a “bump” of cocaine outside a bar, PL 120.00 for a fist fight with some random stranger, or something of the felony variety which is quite more serious, they will have a date with a judge in criminal court. By Desk Appearance Ticket (D.A.T. or Appearance Ticket) or as a result of an all out arrest cooling their heals in the “Tombs”, if a criminal case is not resolved immediately a defendant will be required to return to court. Live in California, Texas, England, Australia or China? No, you don’t get a pass. Without prior agreement, failure to return will result in the issuance of a Bench Warrant.

So, what can you do? If you are asking yourself “Do I have to come back to court or can it be resolved in my absence,” then this blog may good place to start to understand the legal issues and process so that you can make an informed decision  with your criminal defense attorney when assessing your options. Continue reading

Facial Sufficiency is a vital consideration in the field of Criminal Law (one of many, of course). If a misdemeanor information (some people call it a complaint) is facially insufficient then the misdemeanor information is considered jurisdictionally defective and should be dismissed. In order for a misdemeanor information to be facially sufficient the misdemeanor information must, when viewed in a light most favorable to the People (the District Attorney or prosecution), contain non-hearsay factual allegations providing reasonable cause to believe that the defendant committed the offense(s) charged; and which establish, if true, every element of the offense(s) charged. CPL §§100.15[3]; 100.40[1][b] and [c].

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In criminal trials in the state of New York, the People (a.k.a. the prosecution) bear the burden of proving that the defendant has committed the charged offense beyond any reasonable doubt. Obviously, the role of the criminal lawyer in New York is to controvert, challenge and poke holes in People’s case. Many times in criminal trials the strongest evidence of guilt in the prosecution’s arsenal is the direct testimony of a witness. Therefore the District Attorney’s Offices, whether it be one of the five borough/counties– Manhattan, Brooklyn/Kings, the Bronx, Staten Island/Richmond, or Queens– or surrounding counties– Westchester or Rockland — must be empowered to compel these “material witnesses” to testify. A subpoena is that legal tool, which empowers the State of New York to compel testimony by a witness. Of course, even if you’ve been subpoenaed to testify in a New York criminal trial, you don’t necessarily have to testify.

Most of us don’t need a NY criminal defense attorney to tell us what the Fifth Amendment is, but many times people do confuse the scope of the Amendment. The Fifth Amendment only protects individuals from self-incrimination. That is, if your boyfriend was charged with burglary and you are subpoenaed to testify as to his whereabouts on the night in question, but you had nothing to do with the burglary and your truthful testimony will in no way incriminate (admit guilt of a crime) you, then you can potentially be compelled to testify.

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Often times, prosecutors in the New York City area (Manhattan, Brooklyn, Bronx, Queens and Westchester Counties) offer first time shoplifters as well as those accused of other thefts, weapon crimes and personal drug possession, a violation of Disorderly Conduct (New York Penal Law 240.20). Depending on the facts and circumstances, a “Dis Con” could be a tremendous disposition. However, such a violation does have its draw backs. One of the most common is that a Disorderly Conduct may seal, but may show up on a background check. The other issue with a Disorderly Conduct is that while you will not have to ever state you were convicted of a crime, you technically have been arrested. Therefore, should an employer or an employment application ask whether you have ever been arrested, you will have to answer in the affirmative.

As I have written time and time again (and fought for my clients in each and every case of this nature), it is often worth one’s time to reject a Disorderly Conduct and fight for an adjournment in contemplation of dismissal or ACD. In these cases, not only is there no conviction of any kind, but the case is both dismissed and sealed in six to twelve months depending the nature of the underlying offense. Another benefit that is often not addressed is equally important.

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It is common throughout New York City and the region for judges to grant prosecutors’ requests for orders of protection whereby no contact between a complainant and defendant is permitted. These “full” orders of protection are often requested in other counties, such as in Brooklyn and Westchester, where the parties don’t even know each other and are complete strangers. What is concerning for the accused, however, is where a “full” order of protection is issued that ultimately requires one party to vacate their own home. Unquestionably, these orders of protection are often necessary to protect one individual from another. However, “full” orders of protection are also implemented where there is merely an accusation without full investigation. Prosecutors, taking the side of caution, may ask for these orders of protection, but amend them at a later date. Unfortunately, what happens to the accused if they must leave their home, their property and their possessions behind while they wait for a prosecutor or detective to conduct their investigation? What is this person to do for the weeks or months that he or she may not have access to his or her property?

Fortunately, there is a potential remedy or at least a means to challenge the order of protection in New York. If your “personal or property rights will be directly and specifically affected,” by a “full” order of protection, your attorney can request a “Forman Hearing.” Having said that, merely requesting one does not mean such a hearing will be granted and you will be successful. It is the accused’s burden to establish this direct and specific affect. Once having done so, the court must ascertain and weigh this affect against the danger(s) to the complainant. See People v. Foreman, 145. Misc. 2d 115 (NY Cty. Crim. Ct. 1989).

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As I type, it is likely that Plaxico Burress is sitting in a Manhattan Grand Jury testifying about the events that ultimately resulted in his arrest for possessing a loaded firearm in New York and being charged with Criminal Possession of a Weapon in the Second Degree. As a former Manhattan prosecutor who served for seven years under Robert Morgenthau and who has cross-examined many defendants in the Grand Jury and represented clients in the same, I have unique insight that many New York criminal defense attorneys do not. The following entry will address some of what happens in this “secret proceeding.”

What is the Grand Jury

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Whether you are under investigation for a white collar crime or have already been arrested for a weapon crime, it is imperative to retain an experienced New York criminal defense attorney before you talk with law enforcement. It may be that without an admission or statement on your part to the police or FBI, law enforcement has no case against you…that is right…nothing. Whatever the circumstances, whether you voluntarily go to a precinct to talk to the police to “clear the air” or you are already under arrest, you may be waiving your rights and jeopardizing your case. Even more importantly, your fatal mistake may cost you your freedom. Unfortunately for one particular defendant in Nassau County, he learned this lesson the hard way.

In a decision rendered on May 8, 2009, a Nassau County District Court Judge ruled in People v. Alfredo Pena, 2008NA011705, that a defendant’s statements were not the result of a “custodial interrogation” and therefore admissible and not obtained in violation of his rights. This “custodial interrogation” is the key element or principle in New York’s cases involving Miranda and admissions. In the Pena case, the police were investigating the defendant for the crime of Harassment through phone calls. The defendant went to the station voluntarily, waited for about 45 minutes until the detective was available and ultimately made admissions of his involvement. During this entire period of time the defendant was never handcuffed or forced to remain in the precinct. Moreover, no threats or promises were made and the defendant was not arrested. Shortly thereafter, the defendant was read his Miranda warnings, which he voluntarily waived, and he spoke further with the police. Ultimately, as you have probably guessed by now, the police arrested the defendant and the prosecutors indicated that they were going to use all the admissions against the defendant at trial. After motions were made by the defendant’s counsel, a Huntley Hearing (a hearing where a judge determines the admissibility of a defendant’s statement) was ordered and conducted.

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