Thursday, November 7, 2013

Ithaca Cortland Lawyer Asks When Can You Violate a Conditional Discharge but NOT Be Violated?

New York Conditional Discharges Always have
Terms and Conditions


New York law can be confusing at times, even for lawyers. We have some customs and procedures that vary from one county to the next. Having more certainty I'd like to think is a good thing but we can't always have it.

In this blog post I want to help make sense of the world of Court CD conditions, terms, and obligations and what happens or may happen if we VIOLATE them.

Violating Your Conditional Discharge 

The one year CD or conditional discharge is the most common sentencing option in the vast majority of New York lower local Courts (town, village, and city). It can have a wide range of conditions, deadlines for those conditions, and accompanying open ended collateral obligations to those conditions, wow! Open ended anything scares me.

So if the Court states at sentencing, "you must have a drug/alcohol evaluation by an OASAS evaluator and you must follow through and complete all treatment recommended by that evaluator" that is a mouthful and that may involve many months or a year of rehabilitation (all at your cost and expense).

Or if the Court states at sentencing, "you must have a mental health evaluation and either submit documentation of your progress (continued treatment) and/or completion over the next year."

Or if the Court states at sentencing, "you must complete 100 hours of recognized community service at a non-profit organization."

Or if the Court states at sentencing, "you must remain free of any use of alcohol and/or illegal drugs for the next year." Over the years the only way I've seen this enforced or violated is with public intoxication (disorderly conduct) type charges after a CD.

The ONE Main Condition of Every CD

The Court will always have one main condition in every CD sentencing, "you are to be arrest free over the next year or else this sentencing for this plead to offense (charge or charges) can be re-opened (re-visited).

What happens if YOU Violate? What happens if you don't follow up or follow through on the conditions? What happens if you only complete part of the conditions or none of them?

If and when the DA discovers the violation, it could be a letter from the drug/alcohol treatment center to the Court and the DA that you are AWOL or MIA. Then the DA will have to file a Notice of Delinquency with the Court. This will state the condition stated during and as part of sentencing and Why you are now in violation of that condition.

Sometimes your violation involves new charges or in another county or another state. It is up to the discretion of the ADA to decide whether to proceed with violating you or not to violate you.

Sometimes your violation will have the Court bring you back without the DA first. This is so the Judge can perhaps forestall a full violation by having you get into compliance. Maybe go back into treatment, or catch up with your obligations, or produce proof of a good reason to allow you more time or another chance.

Violations of CDs need to be handled, they should never be ignored.

Always consult with an attorney about any criminal or non-criminal charges you have pending to discuss your options and/or defenses.

Originally, born and raised in Brooklyn, NY. My father was a NYS corrections officer, and my mother a waitress. I now live in Ithaca, NY with my wife (of 25 years), and four kids. I have a B.S. in Human Biology, Doctorates in Law and Chiropractic, and a Post Graduate in Acupuncture. I practiced as a Chiropractic Physician in Florida from 1986 to 1995. I graduated law school in 1997, and went on to practice trial law in FL, NY, NJ, and PA. I love practicing criminal defense and injury law within the Finger Lakes Region of New York State.

Over 90% of the cases that I take on are New York DWI defense cases. I am certified as a breath tester by the Department of Transportation, the guidelines of the International Association of Chiefs of Police (IACP), and the National Highway Traffic Safety Administration (NHTSA). I am certified in Field Sobriety Tests, and an active member of the National College of DUI Defense (NCDD). My online materials include over 450 blog posts, dozens of articles, and over 440 informative videos on my youtube channel.

I have co-authored Strategies for Defending DWI Cases in New York, in both 2011 and 2013. These are West Thomson legal manuals on New York State DWI defense, and focus on the best practices for other lawyers handling a New York DWI case. Included in Strategies for Defending DWI Cases in New York are materials I provide clients, such as my fee agreement and ways to avoid misdemeanor probation. I was selected by Super Lawyers as a Upstate New York 2013 Rising Star in DWI/DUI Defense based on my experience, contributions, and professional standing.


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