Wednesday, August 7, 2013

Ithaca Elmira Lawyer Judges Have New Discretionary Power with Years of Probation

Watch out! fm

With so much negative (as in harsh) New York State legislation to report it is nice to have new law that is fair, just, and reasonable. New York State Penal Law 65.00 (3) has been modified, and this is exciting news for defense lawyers in NY.

It used to be that Judges had to give a three year term of probation for misdemeanors and a five year term of probation for felonies. If after half the term was served and was served well (no incidents/violations) then probation could decide to terminate the term of probation early.

New Law allows Judges to set terms of Probation for Misdemeanors at 2 or 3 years and Probation for Felonies at 3, 4, or 5 years. 

Anything that gives the person on the bench more leeway in sentencing I believe can allow for the wide range of variances between people, punishment, and rehabilitation.

Judges stripped of their discretion have their hands tied. Most Judges like having that ability to tailor their sentence. As a common law jurisdiction (old state) New York has wide ranges of punishments, they can run the gamut from a year in jail to no jail, from three years of probation to no probation, and fines can have minimums but also high maximums.  Laying out the reasons why your particular client deserves a lesser term of years or a fashioned set of conditions can be the light at the end of the tunnel.

Give people reasons to be reasonable. fm

Key Take Away: Remember to get people to be reason-able always lay out the REASONS (the whys).

Why should you care about years of probation?

1. With Misdemeanor Probation you can't leave New York State. So you are stuck here for the full term of years unless probation ends early (unlikely for many). What if you or a spouse get a great job opportunity in another state? What if your company lays you off? What if your business goes belly up?
You are SOL.

2. Being supervised and monitored for years can be oppressive to most adults. You lose your 4th amendment right to be free of unreasonable search and seizure. They can demand entry to your home any time, demand a sample of your body fluids any time, and you must ask permission to leave the state.

3. Transferring Felony probation state to state can be difficult. It is possible but the new state has to accept you. It can be prove to be complicated with the government involved in your transfer.

Lawrence (Larry) Newman