Friday, August 23, 2013

Ithaca Cortland Lawyer: The Cost of Being Right: The Legal versus the Practical

 I love my wife, that's my mantra! from

Being Right Can Be Sweet

Who doesn't love to be right? The sweetest words that my wife can say are not "I love You," they are "You are Right." That's sad, but oh so true. Afterall, in our 26 year relationship I am often wrong, yes, I know it is hard to believe but the husband often gets it wrong (or doesn't get it at all). Claims that I don't listen or have not listened clearly echo in my head constantly. What did you say?

The Law

So what does this have to do with law? Well, I recently did a blog post about the passage of a new New York Bill that allows (permits them) judges to give shorter sentences for probation. Did I mention passage? because that is the key here, this thing, this law has passed the legislature otherwise I would not have the excitement I have for it. Nice to know something is written but until it passes, let me just say "I'm from Brooklyn" so show me!

Here it is, let's call it THE PROBATION MODIFICATION BILL:


TITLE OF BILL:  An act to amend the penal law and the criminal procedure law, in relation to establishing terms of probation sentences and revocations thereof under certain circumstances; and to amend the criminal procedure law, in relation to pre-sentence investigations and written reports thereon in any city having a population of one million or more


Section 1 of the bill would amend Penal Law ("PL") º 65.00(3)(a)(1) to provide the court with the discretion to impose a probation term of three, four or five years for a felony. This would only apply to felonies other than (1) Class A-II felonies defined in PL Article 220; (2) the Class P felony defined in PL º 220.48; (3) any other Class B felony defined in PL Article 220 committed by a second felony drug offender; or (4) any felony involving a sexual assault.

Section 2 of the bill would amend PL º 65.00(3)(b)(1) to provide the court with the discretion to impose a probation term of two or three years for a class A misdemeanor other than a sexual assault.

Section 3 of the bill would amend PL º 65.00(3)(d) to give the court the discretion to impose a probation term of two or three years for an unclassified misdemeanor, for which the authorized sentence of imprisonment is greater than three months.
I read about it through the New York State Defenders Association, Public Defenders Backup Center Report, May- July 2013. I love to keep up with changes to NYS law, especially favorable ones. btw It also helps me with my "being right" about more stuff.

I had shared this with a local attorney, and he was excited to share it with a local judge. The judge then called the DA (District Attorney) who told him it never passed. Now I believe that it is up to each, and every local attorney to keep up with their areas of law to best advocate for their clients. But knowing stuff (law) doesn't guarantee anything, it just gives you a leg up, nothing more.

Remember, Judges Believe What They Want To

Judges are people, and they have their own beliefs. The other fact is that 2/3 of all town and village judges in New York State are not lawyers. I have faced situations where ADAs (assistant district attorneys) in different counties have told judges "bubbe meises," my old Yiddish expression for grandmother's fairy tales ie. bullshit. They argued that there were exceptions to New York law for restitution in DWI cases, there aren't, and for YO (youthful offender) status in DWI cases, there aren't.

People don't always agree with you from

But the big take away, some judges listen, some judges read, and some judge don't care. I have filed motions on the law, and some judges have denied them. Even with the written statutes in their face, they flat out denied the law, and the legal and factual grounds for what I was requesting. Other judges followed the law to the letter. Sometimes trying to be RIGHT legally can be time consuming and costly. Is it worth chasing down $500 by spending $1,000's on legal appeals? Some law firms love to just keep appealing, hours and hours of time, and who pays? Hey you may win? It's like getting the bedroom set in a nasty divorce that cost you half your home equity. In my mind, often this proves to be both stupid and impractical.

 No Truer Words have been Spoken from

The Cost to Be Right

I have my share of innocent people, but what does it cost to prove true innocence?

Case in Point: I have a diabetic pulled over for truly erratic driving who refuses the breath test. I now must bring in a medical doctor to give expert testimony that his diabetes caused his failure on all the field side sobriety tests and the brain (mental) confusion of taking another breath test back at the station.

Unfortunately, You are "Guilty till Proven Innocent" in many situations like this. There is a NYS Jury Instruction called "The Presumption of a Consciousness of Guilt" which can be used by the prosecution because you refused the breath test. Meaning you are presumed to have not taken the test because of your feelings of guilt (guilty to be drunk driving).

We now need to explain the crazy driving, we now need to explain the imbalances, we now need to prove the cause of the confusion, and we now need to demonstrate the proof of our theory of the case. Being offered a guaranteed DWAI (driving while ability impaired) would be a win here in some people's minds. The chance or risk of going to trial are not for everyone. For others, going to trial at all costs (financial, emotional, and time) would be the only option.

And sometimes the battle costs more than the hopes or chances of winning the war. No guarantees that even if you bring in the experts to testify, even if you file the proper motions, even if you state the law, and even if you have all the right facts that you will succeed. And thats a lot of even ifs.

In marriage, and in law sometimes the cost of being right (much like the rent) is too damn high. Sometimes it is better to keep the peace (or remain unscarred) and be wrong.  

Lawrence (Larry) Newman, D.C., Esq.

Doctor of Chiropractic
Attorney and Counselor at Law