Tuesday, November 1, 2016

Ithaca DWI Lawyer: The New York Conditional Discharge: If You Violate Can They Go Back to the Original Charges?

I loved as a Kid,
No Backsies!!
People are generally confused about the New York Conditional Discharge. We have written and videoed about it but still questions linger. A recent email was from a concerned mom. Her daughter had originally been charged with a felony and a misdemeanor in the Bronx. Trumping up (elevating) offenses happens quite often in many situations because it is far easier to start higher and then come down than it is to start low and go up.

Well the daughter, after a plea bargain wound up taking a plea to a couple of violations (non-criminal charges). But she was unsuccessful meeting all of conditions of her CD and violated her release.

                                               Could the District Attorney go back (take backsies), and prosecute her  
                                               for the felony?

What Do Car Dealers and New York Prosecutors Have in Common?

Much like buying a car, the dealer puts an outrageous sticker price on the car, and you go and try to get it as close to their cost as possible. District attorneys and sometimes the police will write everything they see, they can imagine, and even what the evidence may even loosely support. But in the end, eventually everyone looks at the proof and what's somewhat reasonable and then deals are made. Otherwise where is the "bargain" in the term plea bargain?

When is a Final Deal in a New York State Court, Truly Final and No Backsies 

Remember as a kid, No Take Backsies, the rule of kid law: You Can Not Trade Back Cards or Toys once the deal is made. 

In much the same way once two things happen:

ONE: You have made a guilty plea in court and 
TWO: The judge sentences you.

They cannot take you back to the original charges, not the District Attorney, Nor the Judge, can go back to the what you started with at the outset of your matter. In the example above, the maximum sentence on two New York State violations is 30 days in the county jail.

So even if the daughter does not meet any of the terms or conditions of her CD (conditional discharge) the maximum sentence that the DA can ask for, and that the judge can levy is only
the maximum permitted by what was plead to: in this case, two violations.

If the plead to offense was a misdemeanor with a CD then a violation of the CD would allow the DA to seek up to a year in jail or three years probation or a split sentence of some jail plus a term of probation. The judge is only permitted to punish based upon the plead to offense nothing more than that. That's why if you can plea higher charges down, and take a deal quickly to say a violation you can avoid these potential higher penalties even if you mess up in the future.

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