Wednesday, February 29, 2012

Ithaca Cortland Lawyer "Why You Can't Lie to the Police but the Police can Lie to You"

I get lots of calls from people asking me for my help, and advice pre-arrest. The police have called them or banged on their door, and just want to talk with them.

Question Number One: Should they give or make a statement to the police?

Question Number Two: Should they answer police questions?

Some Typical Scenarios:

The police found something. A backpack, a car part or the car itself, a wallet, or a laptop.

The police got a call. Someone heard something, someone saw something, or someone knows something?

Before you go helping the police, before making admissions, what are you really doing? Are you really helping them to charge YOU with some crime? Are you going to give them evidence? Are you going to implicate (great word) yourself? Are they your friend?

Understanding the ONE WAY STREET

In my quest to explain the intersection of law enforcement and police interrogation I am once again dumbfounded by the amount of misinformation online. The internet is a marvelous thing but with one main caveat, don't believe everything you read. Just because it is posted online don't make it true. Seeking answers to questions from people with no background, training, or experience can be a recipe for disaster.

In my last blog I explained why police are allowed to lie to the public to further their criminal investigations. See Ithaca Lawyer Blog, February 28, 2012. In this blog I want to show and further explain the other side, why you are not permitted to lie to the police. Seems unfair on the surface, this one way street but in truth that is why we have the Miranda Warnings and criminal defense lawyers. They exist to bring balance to the powers that be.


The lesser of evils is that we as a society want perpetrators to be uncovered, and brought to justice. Law enforcement must use "information gathering techniques" to catch rapists, murderers, robbers, and to remove dangerous people. Life is truly a balancing act, and this is also the case with police behavior. If police were always straight and honest could they get information? Maybe, but at what cost? If we want them (the police) to be quick and effective then we also want them to have an advantage over criminals (those who lie as a profession), and so we allow them this leeway to interrogate using lies. Kinda like the story of the scorpion and the frog, the scorpion (stinging frogs) will always act true to it's nature. Police are in the profession of law enforcement.


Let's go through some of the crimes with which you will be charged for lying to the police:

1. Giving a false name and DOB = Criminal Impersonation 2nd
2. Giving a False Statement
3. Falsely Reporting a Crime
4. Falsely Reporting an Incident
5. Lying Under Oath = Perjury
6. Obstructing justice

Why can't you lie when they can? 

The one main reason, is that they are doing a job, they are investigating crime, they are enforcing the law and you are impeding that effort by not being truthful. Your lie may cost time and money. Your lie may prevent, block, or impede their investigation. Depending on the context, your lie may allow and facilitate further crimes.


When you are accused and arrested for a crime "You" have one main protection from the government, and law enforcement interrogation techniques. You must invoke your Miranda Rights.

YOU have a right to remain silent.
YOU have a right to an attorney.
YOU have a right to have an attorney present (with you) during questioning.

Why would you NOT want these? These rights came as the result of decades of injustice.

These are RIGHTS. You have to get them but you must be proactive. You must speak up.


Say   "I want a lawyer."

This stops everything. All questioning. All lying. All harassing behavior. 
Have a lawyer present during any questioning. This is your ultimate protection.
This balances out the overwhelming power and authority of the government.

Law Offices of Lawrence Newman
504 N. Aurora Street
Ithaca, NY 14850


Tuesday, February 28, 2012

Ithaca Cortland Lawyer Why are the Police Allowed to Lie?


It may come as no surprise to people that police sometimes lie. When I tell people that law enforcement are "permitted" to do that then they are taken aback. Permitted by whom or what? What do I mean?

This lying, It's NOT in the United States Constitution, nor in the New York State regulations.


Actually it is (an unspoken) part of their job duties or description. Their role after all is to investigate crimes, to arrest, and to charge (enforce) crimes under the law. Remember the Steven Seagal movie "Above the Law," well you are considered "Below the Law."

In the performance or context of their duties they interrogate people. In order to interrogate (question) them fully, and successfully they will tell lies. They want people to tell them the truth. They seek admissions of guilt. They seek fault and blame. They want people to basically open up. Can they get a confession?

In order to get what they want in this quest for justice they are permitted to tell people just about anything. They may tell them misstatements of law, factual impossibilities or improbabilities, and even things that never occurred. It might sound strange that to get at the truth we allow the government enforcers to lie. Kinda follows the logic of "the ends justify the means."


To balance out this (police intrusion) conduct you have CONSTITUTIONAL RIGHTS.
BUT YOU must invoke your rights. They will not surface until you state the magic words to the police, "I want a lawyer." Your two main rights of protection against the police (the government) are under Miranda:

1. The right to remain silent. Silence in this context is golden.
2. The right to have counsel present during questions. This balances the playing field, nothing more or less.

These rights came about after decades of police abuses in investigating crimes, and forcing confessions.
They used to Question people for hours and hours under hot lights, deprived of sleep, and without food or drink. This was the norm back in the day. Today the military has shown us the uses and abuses of water boarding, humiliation tactics, and psychological degradation to prisoners.

You stand nothing to gain and much to lose by talking with the police without an attorney present. The power and psychological advantage alone creates a dangerous situation for most people (guilty and innocent).

Lawrence Newman, D.C., Esq.
504 N. Aurora St.
Ithaca, NY 14850

Sunday, February 12, 2012

Ithaca Cortland Lawyer The "Sine Quo Non" of New York DWAI and DWI

Ithaca is isolated. The 10 square miles surrounded by reality lends itself to the escapism of cinema. Yes, going to the movies is often the best way to leave without packing a bag or jumping on a plane. My wife and I saw "Safe House" yesterday. We love Denzel, cool as a cuke (aka cucumber), he exudes confidence with his every step and line. I love memorable movie lines, I believe that great dialogue not special effects make movies great.

When Your Past > Your Future = Your Outlook Changes

One line properly delivered can strike a nerve. One of the movie characters commented on Denzel's vagabond, lone wolf, and non-committed lifestyle, "when you have more past than future you have a different perspective on life." That line resonated, and then reverberated with me long after the closing credits. I'm 50, so the chances of this being true for me are higher than I would like to think about.

How true? Now reverse that for a moment.

What if Your Future > Your Past? 

What if you are in your 20s, 30s, or even 40s?

What if you are going to have, and planning to have a long future? A future filled with jobs, positions, licenses, and certifications. A future taking on and accepting positions of responsibility and authority. Just a side note, "generally" speaking the more responsibility you can take on the higher your pay grade. Those with the highest levels, and are ultimately responsible for hundreds of people or expensive equipment or a company's productivity get paid more than those without it.

This is the truth: Just about Any NYS DW is going to need explanation. This includes DWAI (driving while your ability was impaired) and DWI (driving while intoxicated) offenses. A DWAI is merely a traffic offense, a violation, but it will stay on your record forever. BTW Most violations get sealed. But Not a DWAI, NYS wants it that way.

The Background Check

If you plan on doing anything of any consequence in YOUR future you will probably need to explain the circumstances of your past offense. Any future involving YOUR accepting a role or position of responsibility for money, people, sensitive records/information, and your better judgement is going to require a background check.

These are the Sine Quo Non of NYS DWs. In Latin, without which nothing, in other words, the must haves.

1. Get a Certificate of Disposition from the Court of record. This is a certified (stamped/embossed) document stating the original charges, and final outcome. The official beginning and end of your matter/case. They are only a few dollars or free to your attorney of record on the case.

2. Get a Drug/alcohol Evaluation. This is indispensable to the conclusion, and the closure of your case. Why? I'm glad you asked, Because it is the first question most people who grant licenses, certifications, and give jobs will ask.

Did you get checked out? Did you get assessed? Do you or did you have a problem? Did you or do you have a diagnosis? Was the diagnosis for drug/alcohol abuse? Was the diagnosis for drug/alcohol dependency? Did you need any treatment? Did you follow through with their recommendations? Did you get rehabilitated? Did you get healthy?

They need to do this for a number of reasons:

1. If they are going to be responsible in their jobs they must do their diligence before granting anything. Diligence is being thorough and making sure you are safe.

2. If it is a company or organization making a hiring decision then they could be liable if they do not check you out. Negligent hire is a real threat to many businesses. If they employ someone without knowing their past or not investigating it sufficiently then if something happens (you screw up) they could be to blame (held accountable).

Good Judgment = Responsibility

This is true with a trucking company hiring a driver or a financial institution hiring a customer service representative. Good judgement is directly related to being responsible. What if they find instances where you were not personally responsible and accountable? What if you never had "closure" of a past instance? What if there are loose ends so to speak?

Questions that remain unanswered get filled with bad answers. People will think the worst. They will think cover up, they will think lying, and they will think intentional guilt not forgetfulness.

Always Do the right things!
Always follow up!
Always follow through!
This is true with anything of any legal, ethical, or professional consequence.

Lawrence A. Newman, D.C., J.D.
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850


Tuesday, February 7, 2012

Ithaca Cortland Lawyer "Of Police Reports, Accident Reports, and Tickets"

You would think that after all these years that we would all have some agreement on just what a police report is. Agreement is a good place to start. How often have people lodged protracted wars against one another and it turns out they were talking about two different things entirely? We must agree on at least the terms otherwise we will wind up fighting over or disagreeing about different things entirely.

In truth, terms, words, and what things are or are not often get confused. This is especially true in the areas of medicine and law. Archaic words with French and Latin origins are used to describe very basic concepts. People sometimes take offense when I stop them, correct them, or attempt to explain what things are. But how can we discuss anything without at least agreeing to what things are (and what they are called)?

An Accident Report is a report complied by law enforcement in the event of an incident involving people and/or property damages. Sometimes people call this a "police" report. It can range from one page to many pages. They can become very involved. Sometimes if the accident warrants it (complicated liability, high property and/or people damages) the police will bring in an accident reconstruction expert. An additional report will be generated. This will take into consideration vehicle weights, road surfaces, weather, vehicle speeds, directions of travel, road debris, skid marks, yaw marks, etc. Rules of physics, coefficients of friction, equations, formulas, and then a conclusion of what they believed occurred.

A police report can be obtained by the injured parties or their attorneys. It is a public record.

A Police Report is a report concerning a crime. It is not just given out to people. It usually is generated (written, compiled, and reviewed) days after the event (arrest). It will generally be in a narrative format. Most are between two to four pages on DWI cases. Some are very well written but many are canned (using a skeleton format). Some officers with experience know how to describe and explain things better. This clarity helps the prosecution's case. Reports that use vague terms, words, and descriptors are rife for challenge.
An attorney will make a demand for the police report at the arraignment (initial appearance) along with a request for all other discovery documents to be used against you. When charged with offenses (they may or may not be crimes) you will be given a series of appearance tickets (explained below). In addition to these tickets in DWI cases, you may or may not receive a long form (11x 14) generally green in color (says 710.30 on top). This is the cursory outline of how the police have PC (probable cause) to make the arrest. It is a check off list (little boxes).

Your police report can be obtained by you under the Freedom of Information Act (FOIL Request). Generally it is best for an attorney to obtain the report and all other documents through a discovery demand upon the District Attorney's office. Discovery demands are supposed to be met within 15 days.

NOTE: In Tompkins County they regularly send out a full discovery packet post arrest to the defendant. This is an unusual practice. In the other 7 counties in which I practice (none do this). They (Tompkins) have an open file policy. In many other counties even the police report is a sacred and ominous record (not given out lightly).

Tickets are also called UTTs (uniform traffic tickets). They are those weird sized pieces of paper. Like 4 inches by 7 inches. They can be carbons, very flimsy and thin, barely paper. They state the date, time, place, and type of infraction (violation level, misdemeanor level, or felony level). They are also referred to as an appearance ticket because they state a time and place for YOU to appear for Court. Usually accompanying UTTs are a supporting deposition. This may or may not contain a 710.30 (statements to be used against you). The supporting deposition is the police short form to state under oath how and why they decided to charge you.

So there you have it, when someone asks you for the report, you can ask them to clarify that request.

Lawrence Newman, D.C., J.D.
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850


Wednesday, February 1, 2012

Ithaca Lawyer NYS Teacher Certification and Marijuana Charges

As a criminal defense attorney I really believe that my job is all about protection. The problem is that most people (me included) can't protect against unseen or unknown enemies. Studying the law (the statutes) gives you a keen insight into anticipating issues. Criminal or even non-criminal charges involving drugs, marijuana, and controlled substances are a powder keg (a ticking time bomb) to those that have professional licenses and/or certifications. In this blog I really want to focus on New York teachers and their certifications. I'm straight from Brooklyn so NYS is near and dear to my heart. I recognize that some of the New York rules, laws, and statutes can be antiquated to many people.

In NYS any violation (of law) is professional misconduct for a professional license holder. One overlooked profession (in more ways than one) are teachers. They must have teaching certifications to teach. If they have any misconduct involving specific offenses they face loss of this certification. Those seeking licensure (certification) also must deal with any of their past convictions. Remember the focus of this blog is on the administrative issues not the criminal ones even though they integrate with one another. Administrative sanctions have a much lower standard (level) of proof. It is just a bit higher than the civil standard of preponderance of the evidence. This is also referred to as a little more likely than not that something is or isn't.
Some have referred to this as the substantial evidence standard. It is a far cry from proof beyond a reasonable doubt used in criminal matters. A license is merely a permission and does not rise to the standard of a protected right. You have NO right to teach or do any other profession.

How Many Professional (working) People Smoke Pot?

I don't know the answer to that question but I can tell you alot. In the last 10 years I have been offered more pot by more adults at social gatherings than you may imagine. My pot days are behind me but I understand the desire of people to chill out whether with a drink, a smoke, or a relaxing substance. Drugs have been around for thousands of years, they are not going away anytime soon, and used responsibly they can be life savers and life enhancers.

So What's the Problem?

What many people don't know is that a seemingly innocuous pot charge (even at the violation level) can lead to severe discipline to a teacher's livelihood. A mere marijuana violation (penal law section 221) and subsequent conviction for smoking, and/or possessing pot will lead to a rebuttable presumption that you are unfit (lack moral character) to teach.

This is under NYSED Part 83 Determination of Good Moral Character. If you are convicted of any of the specifically enumerated offenses (a marijuana violation is one of them) then you are presumed immoral and unfit. This rebuttable presumption is one in which you are presumed to be morally guilty.

Section 83.4. Hearing.

(d) Evidence of conviction of a crime shall be admissible in any proceeding conducted pursuant to this Part, but such conviction shall not in and of itself create a conclusive presumption that the person so convicted lacks good moral character. In the case of a certified individual, proof of conviction for any of the following acts constituting a crime in New York State and committed subsequent to certification shall create a rebuttable presumption that the individual so convicted lacks good moral character:
(1) the criminal sale, possession or use of marijuana, a controlled substance, a precursor of a controlled substance or drug paraphernalia as defined in article 220 or 221 of the Penal Law; or
(2) any crime involving physical or sexual abuse of a minor or student; or
(3) any crime committed either on school property or while in the performance of teaching duties.

Then it is your job to prove your fitness and morality to the board. If you are applying for a license there is NO rebuttable presumption. The statute specifically reserves that for those who already have certification and then commit a crime subsequent to that certification.

The potential penalties are highlighted below:

Section 83.6. Penalties.

(a) In a proceeding brought pursuant to this Part, for individuals who are served with a notice that a substantial question exists as to moral character prior to November 1, 2000, a hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose the following penalties: denial of an application for certification, or suspension of a certificate, or revocation of a certificate.
(b) In a proceeding brought pursuant to this Part, for individuals who are served with a notice that a substantial question exists as to moral character on or after November 1, 2000, a hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose the penalty of the denial of an application for certification (for new applicants); and the hearing officer or hearing panel, as applicable, may recommend and the commissioner may impose one of the following alternative penalties upon certified (for those with certifications) individuals:

(1) revocation of a certificate; or
(2) suspension of a certificate:
(i) wholly for a fixed period of time;
(ii) partially, until the certificate holder successfully completes a course of retraining in the area to which the suspension applies; or
(iii) wholly, until the certificate holder successfully completes a course of therapy or treatment;
(3) limitation of the scope of a teaching certificate through revocation of an extension to teach additional subjects or grades;
(4) a fine not to exceed $5,000; or
(5) a requirement that the certified individual pursue a course of continuing education or training.

What Can One Do?

Prepare to stop it ALL at the root cause: the criminal and/or drug and/or pot conviction level.

First, if facing any criminal charges and/or violations of law consult with a knowledgeable attorney.
Second, you should always seek to obtain a NON-criminal disposition to your charges.
Third, if you cannot get a NON-criminal disposition then seek a NON-drug related disposition to the charges.

Level two: Be proactive, Get an Eval, and folow through.

If there is no way to prevent a conviction for the criminal and/or drug charge then get a drug/alcohol assessment/evaluation by a NYS certified evaluator ASAP. Follow through on the appropriate recommendations. Go for a 2nd opinion if you think they are off base. They are like any other health care providers, some may think everyone is messed up and needs extensive treatment. See the OASAS website for certified NYS evaluators. The site below is extensive but you must do your research, not all evaluators are equal. Some charge an arm and a leg for a simple evaluation, some may see as an opportunity to get a patient, be careful. Some may say the same things of me but hey I warned you.

If You Have a Hearing Prepare for It

Go into the board fully armed to prove your value, your worth, your good deeds, your history, and any proactive steps you have taken. Do not allow anyone to take something you have worked so hard to obtain without a fight. Licenses are precious, they are more than just pieces of paper, they allow people to serve in a great many capacities, and they need to be valued. Do you need a lawyer? That is a million dollar question. Actually, if you have a lawyer at the lower level (legal defense) you may not ever get to a license hearing. Every case and situation is different and unique. Always best to consult with counsel (what did you think I would say?, I'm a lawyer).

Dr. Lawrence (Larry) Newman
Doctor of Chiropractic
Attorney at Law

504 North Aurora Street
Ithaca, NY 14850