Tuesday, January 17, 2012

The Aggravators & Mitigators in NYS Criminal Law

My mother used to say (more like scream) "stop aggravating me." Aggravation is something children naturally do to parents, husbands to wives, and occasionally lawyers to well everyone (it's in our job description). It's important in any case to know "the factors" that could aggravate (increase) or mitigate (decrease) the potential charges/degrees/levels/punishments.

Some prosecutors and judges give little to no weight to some while other prosecutors and judges may consider them significant. Like anything else, it is human nature to have an opinion.


These factors can be discussed during plea negotiations, at pre-trial conferences, and prior to sentencing. I witnessed and I have said (and shown) the right things (the factors) at the right time and in the right place. This communication of the factors has made a difference in someone's life. I have provided judges, prosecutors, and probation officers "the reasons why" something is or is not deserved/fair/just/equitable. Some have listened and read, some have glossed over or not cared at all.

The art of law is not just knowing WHAT to say, but more importantly WHEN to say it, and HOW to demonstrate or communicate it.


1. Past history, prior offenses, and conduct: Your past always has a value. If it has baggage, why are you different now? If you are ready to change, what actions have you taken recently to demonstrate this?
If you have no past mistakes, errors, violations, and tickets then that must be proven.

2. Evaluation for drugs, alcohol, and mental health: Do you have any issues? Are they being addressed (dealt with)? If you have no issues, can you prove it?

3. Treatment, rehabilitation, and therapy: Are you in or on a program? Are you dealing with the underlying problems (the cause) that brought you in front of the Court with these charges? Felony DWIs usually indicate a longstanding problem and many judges will look more favorably upon you if you show early and assertive proactivity.

4. Weight of drugs, blood/breath/urine test results: Was you BAC (blood alcohol concentration) number high (double the legal limit)? Or aggravated (.18 or more)? Were there other drugs in your system? If pot or other drugs were discovered, how much? Personal use amounts or saleable amounts?

5. Attitude, demeanor, and cooperation (or lack thereof): Post stop, arrest, and booking how did you interact with the police? Respectful? Remember that's why they are called MIS-demeanors, because most people acted with a bad demeanor. Respectfulness is rewarded in the long run.

6. Was there any violence? Some crimes can be committed with or without violence. Felony (multiple) DWIs are considered Crimes of Violence. That is why someone can be deported for a Felony DWI. All the things you didn't do that were good need to be pointed out.

7. Was there any recklessness? Speeds in excess of 90MPH on the highway or 60MPH on side streets can be classified as reckless driving. Driving with an excess number of passengers or on the sidewalk can also elevate a non-crime violation to the crime of reckless.

8. Your age: Under 21 DWIs are looked at more harshly. If you are 50 with a DWI you will be treated differently.

9. Was there an accident? Did it involve property damage? Was this paid for (restitution)? Was there anyone hurt (personal injuries)?

10. Employment and Education. What do you do? Are you stable? Are you being productive? What is your future?

I believe that the best representation comes from knowing your client. Only by knowing what led them to where they are, and knowing the incident that brought them to you can you bring them full circle. Knowing them as a person, their background, and their hopes and dreams can go along way to a more favorable outcome.

Lawrence Newman, D.C., Esq.
504 North Aurora Street
Ithaca, NY 14850