Sunday, March 18, 2018

NO DWI With a Keyless Remote

Key Fobs and New York DWI Don't Mix
Things are most definitely changing. Is New York DWI law keeping up? It's 2018 and most cars are no longer analog they are digital. What this means is that there are more computers and electronics in them than ever before. So many new cars no longer even use a key. Keyless entry, operation, and function are now more the norm. I even have car with a permanent key (can't be removed) but you still need a key in your pocket to operate it.

Does having more bells and whistles change the nature of the crime of DWI?

Does having keyless entry change DWI while in a parked car?

Thursday, March 15, 2018

Why You Won't Always Get a Second Chance: The New New York Sealing Law

The new New York Sealing law under CPL 160.59 is wonderful and great. It offers many second chances for a fresh start and a new beginning BUT you have qualify. After taking call after call and email upon email many unfortunately don't qualify. Some have even said other law firms and their paralegals said sure you qualify but this just wasn't true. The first hurdle is always eligibility.

The New Law Under CPL 160.59 for Sealing is Specific

If you don't meet all the criteria for eligibility you don't get to use the law at all. Most qualify for    their particular crime, NO sexual based crime and NO violent crime. Most qualify for time, more than 10 years.

The number one reason for disqualification is having more than two criminal convictions anyplace (any state) and within your lifetime.

Wednesday, March 14, 2018

Getting a Different Judge 101

Judges like all people come in different shapes, sizes, and colors. Getting one you like is usually not like picking a crayon. So if you are left with NO choice you must do your best with the judge you have.

Understanding the psychology of that judge. How do they truly think, feel, and deal with different crimes can make a difference in the outcome of your case. Ultimately the judge will be the one deciding your fate.

Judge recusal is difficult at best and not usually a possibility. The judge you start with is generally the judge that you finish with. So remember to be nice to everyone including the judge.

Recuse. To disqualify or remove oneself as a judge over a particular proceeding because of one's conflict of interest. Recusal, or the judge's act of disqualifying himself or herself from presiding over a proceeding, is based on the Maxim that judges are charged with a duty of impartiality in administering justice.

Unless you know the judge or someone close to you knows the judge, getting the judge to say he or she can't be fair and impartial is not happening anytime soon.

Sunday, March 11, 2018

Prosecutor Says NO to New York Sealing BUT Judge Says Yes!

The new New York sealing is great, and it offers second chances BUT it's not guaranteed. The prosecutor can contest (oppose) the sealing of any criminal convictions. A recent case shows just what mindset the district attorney can bring to the table.

The Case is People v. Jaime S. Case Number 4517/2003 just decided January 31, 2018. In the case the prosecutor really had two arguments against sealing the past felony convictions:

1. You already have a job, you don't need or require a better job.
2. Future employers should know about you (your past felony criminal convictions).

The judge disagreed entirely. Permitting this person to move forward in their professional life.

The case was about an IT (information technology) officer who wanted to move forward in his professional life. He had two felonies convictions involving computers from over 15 years prior.  Job offers were rescinded over and over when it came time to do the background checks even though he was highly qualified and skilled with computers. He wanted these high paying and more challenging positions BUT the old felony convictions were holding him back. 

He applied under New York Criminal Procedure Law 160.59 to have his convictions sealed so he could move on with his life and the prosecutor said no. Even though he paid his dues, did probation for years, was released early from probation, paid thousands in fines, and lived a law abiding life for    over a decade the prosecutor felt he should always have the curse of old convictions.

The judge disagreed with the district attorney and allowed sealing. There was no dispute this was a "productive, stable, and successful member of society." But the prosecutor said that "societal utility" would be better served by keeping his convictions unsealed. 

As the judge makes clear, the new sealing law is to maximize the chances of this individual and remove any blocks to his future.

The broader question then becomes, as the People implicitly argue, whether there is reason to deny him relief because the impetus and underlying rationale for the statute was the desire to help those whose criminal convictions prevented them from fully integrating into society, and not someone in defendant’s position. There has been increased discussion in recent years regarding the collateral consequences of a criminal conviction. One of the more serious of these isthe limited access to the labor market which a conviction brings (Mackenzie J. Yael, Expungement Law: An Extraordinary Remedy for an Extraordinary Harm, 25 Geo J on Poverty Law and Policy 169 [2017]).

The New York State Legislature enacted CPL 160.59 in conjunction with an amendment of the Penal Law which raised the age of criminal responsibility from 16 to 18. Concern about the collateral consequences of a criminal record was a core concern of the proponents of the bill (id.). The legislature made sure that a court reviewing a sealing application would consider its concern by requiring it to weigh “the impact of sealing the defendant’s record upon his or her rehabilitation and upon his or her successful and productive reentry and reentry into society (CPL 160.59 [7][f]). It is possible to derive from factor (7)(f), as the People do, the conclusion that if a person is already well integrated into society, there is less need to seal his or her record. 
It cannot be denied that the defendant is not among those whom the bill was primarily intended to benefit. He has had no difficulty achieving meaningful employment despite his criminal record, and has reached a comfortable economic station in life. But although he seems integrated into society and economically secure at present, there is no guarantee that such will always be the case. He seemed secure after his conviction but his status was upended in 2010 when the company that he was working for was purchased by another. The new regime offered him a position but changed its mind after conducting a background check. He suffered from anxiety and depression, and was forced to live on his savings until he found a new job. Given his record, it was not a foregone conclusion that anyone would hire him. Circumstances change, and there is no way to be sure that anyone is permanently secure in life. Whether or not he ever tries to advance himself, his conviction may yet again undo him. It makes little sense to deny the defendant relief under the statute until such time as his life takes a turn for the worse.

Granting his application now may ensure that day never comes.

Saturday, March 10, 2018

Pot Smoking and New York Drug Alcohol Evaluations

Often we are asked what to do when facing a drug/alcohol evaluation and being a marijuana user? You really only have two choices: reveal or don't reveal. I never tell my clients to lie, that is there decision. Drug/alcohol evaluations are one of those areas in which you have to use your judgment.

Public Crimes Bring Your Private Life Public

What you do privately comes into play when you make your life public. And any DWI, DWAI drugs, or other type of drug charge brings your private life public. Even though pot is legal either recreationally or medically in so many states it still has a bad rap. Many judges, prosecutors, and even probation departments are filled with people who view pot in a bad light. They do not see cannabis as anything but a dangerous substance, a gateway drug which leads to harder substances.

This mis-information about cannabis is staggering. And it continues to receive bad press even in 2018.

It has so many good uses, and it is my humble opinion that it is far better to use marijuana than so many other legal drugs.

Saturday, February 24, 2018

Judge With Cocaine Problem Wrongly Uses Opinion Letters and is Disbarred

Suspension vs Disbarment?
I have previously blogged and videoed about using Opinion Letters in legal defense. A recent case of a disbarred Pennsylvania attorney gives further proof of the true value of properly utilized opinion letters. This attorney provided the wrong type of letters.

How to use an opinion letter is important but what type of letter to use in each specific case is crucial. The difference in this case was between a period of suspension from practice, and a disbarment. In other words a temporary professional license loss versus a lifetime license loss.

What did this attorney do to have to face a disciplinary hearing?
What letters did he and his attorney provide?
Why were those letters ineffective at saving his license to practice law?

Friday, February 23, 2018

When is a Plea Offer Final? Playing the Defense Game

'Cause baby it ain't over 'til it's over
                                                                                        Lenny Kravitz

In Court once we have a plea offer accepted on the record and then sentencing on that offense
there is no going backwards. BUT way before the plea is accepted there is room for improvement
in the offer. From the moment of your first court appearance everything you do
and do not do will have an impact upon your offer and your final outcome.

All Plea Offers are NOT Final Plea Offers

Sometimes prosecutors will let you know this is the final plea offer right from the get go. But not always and even if they say that, yes even if they say THIS OFFER IS IT, the judge can step up and say hey district attorney how about...

Judges Get Involved in the Plea Bargaining Process

Some judges are very hands on. They seek the justice that your client deserves. They often balance out a harsh (polarized) prosecutor. They don't want very single case resulting in a trial. In fact since most cases don't go to trial because trials are costly both in time, resources, and money judges will assist in settlement. Pre-trial conferences gauge both sides willingness to deal and to negotiate a fair outcome.

Looking for Friend in the Local Probation Department 

You know the whole phone a friend on the show "who wants to be a millionaire." Well we as defense attorneys look for a friend to help our client. Who can be our ally in the plea process: will the judge be reasonable or maybe our only hope for a level headed and reasonable plea offer if PROBATION.

New York State probation departments in general will look at a person's whole life. From the top to bottom, inside and out they will look to assess the whole of your arrest, and make an appropriate and fair recommendation for sentencing. And even though we can't always count on their generosity or kindness it is nice to know we can sometime have a friend in probation.

Probation writes a report. This evaluation and report can come either before or after the plea offer is accepted. This report can evaluate needs, make treatment suggestions, and finally weighs in on the plea offer and sentencing. For the most part probation will likely be a liberal determination based in rehabilitation and treatment. They tend to shy from moving straight to punishment and incarceration in most instances.  

So it all comes down to if the prosecutor is too one sided? 

Will the judge be the friend we need?

Will probation be the friend we need?

Believe it or not sometimes probation and the judge are the ones looking for harsh punishment.

The Poker Game: Plea Bargaining and Criminal Defense 

If we are without a friend in the judge or probation, then the district attorney may be our ally in persuading the judge. Assessing all the parties and their viewpoints allows us to figure out where, what, and how we can achieve the best outcome. A tricky bit of play, kinda like a poker game.

In poker you don't always have the best cards but the game is truly based in psychology. Your opponents may not know all your cards either. Some cards are showing while some are not. The best hand doesn't always will the game. The best players play the long game not the short one.