Friday, March 30, 2018

The Potential Conflict of Interest in Shared Representation

Multiple defendants

We have represented hundreds of people over the years. Most of time it is an easy decision to represent just one person, and to have that person’s interests foremost in mind. But sometimes we are asked to represent a husband and a wife or multiple people involved in a crime. 

Is there a conflict if they are related? Is there a conflict if a defense can make one guilty and one innocent? Is there a conflict when one person could be more guilty than another?

Can a lawyer represent more than one person if more than one person was involved with a crime?

Thursday, March 29, 2018

Public Defense 18B Lawyers Not Always the Best Defense

There is a New York Times article on a public defender (appointed) lawyer in Texas. The judge is accusing the attorney of spending too much time with the client, billing the state too much money, and spending resources on a vigorous defense.

Do New York judges routinely cut public defenders bills?

What is the state of affairs with New York 18 B lawyers?

Does the state have to provide the best defense or merely a reasonable one?

Sunday, March 25, 2018

Anonymous Police Tips and DWI

Anyone can call in a police tip. But whether that police tip will hold up constitutionally is another story entirely. Anonymous tips where the caller chooses to not reveal who they are face greater scrutiny. Because anonymous tips are less reliable and credible they must be more specific.

One recent DWAI drugs case (2018, People v. Feinberg) was tossed because the tip wasn't up to snuff. Why?

Wednesday, March 21, 2018

Can the Prosecutor Challenge Your Getting a Hardship License After a DWI?

Prosecutors (district attorneys) can definitely make life harder. This is true across the spectrum of criminal defense but especially with DWI cases. Some have a self righteous stance on drunk driving. You would think after all the years they wouldn't, and even though I have represented quite a few attorneys some still like to beat the holier than ... drum.

So even after what you would think would be a given, a special hardship license that doesn't even concern them, here I am once again defending my client's rights to one. Remember that nothing is guaranteed, except death and taxes.

Can a prosecutor challenge your getting a hardship license?

Tuesday, March 20, 2018

Ending the New York DMV IDP Confusion

This is an update to my old post about the former New York DMV DDP (drinking driving program). That original post got the most views over the past years. I looked it over and it definitely needed a refresh as we all do from time to time.

New York's DMV's Drinking Driver Program is NOW called the IDP (impaired driving program) 

It is usually a given that you will eventually take it if you have a New York DWI or DWAI case. Some of the common issues:

1. How does the alcohol/drug evaluation counselor determine the need for treatment?
2. When is the IDP mandatory?
3. Can I get my full license privilege back early by completing the IDP?
4. How does my conditional license pre conviction relate to my conditional license post conviction?

1. Alcohol/Drug Evaluations with OASAS certified providers have a wide range of formats. 

The most common format is the two visit, screen and evaluation. I have heard of four visit evals. In some of the wealthier parts of New York State (not Ithaca), I have seen fees of $125 a visit with four visits to reach a conclusion. In Ithaca, it is around $80 a visit. I have seen evaluations with drug/alcohol screenings (Urine tests) and breath tests. Sometimes these may surprise the unwary.

You should discuss with your lawyer you use of controlled substances, prescribed or not. Because if they show up unexplained in the urine, this surprise could bring more grief than needed to the process.
The evaluators can be very subjective as to who requires treatment. I have spoken to some evaluators who feel the charge of DWI alone or a breath test with a BAC of over .08 qualifies a person for twelve weeks of three time a week twelve step classes. I have heard that positive responses to the following questions could automatically signal an abuse diagnosis:

Question 1: Do you have or had you had any hangovers?
Question 2: Do you think it is OK to have one drink and drive?
Question 3: Have you drank any alcohol since your arrest?

I would want a definition of hangover before answering that first question, but then I'm an attorney. Is feeling tired or bad the day after drinking a hangover? I sometimes feel that way after eating too much late night ice cream, would that qualify as a hangover? Be careful how you answer any question.

Again discuss with your attorney before going and who you are going to. You do NOT want to be misappropriately diagnosed. 
Now some evaluators are fair and some are not. Some will view the totality of person's life and behavior before rendering an opinion while others unfortunately do not. I have been surprised in both directions. Sometimes my clients did not get a treatment recommendation when in my opinion, half common sense and half legal, they needed help. And while I am not a drug/alcohol counselor you can often tell who needs help.

Other clients who only drink socially, never to excess, and with no underlying problems were given an alcohol abuse diagnosis. Please NOTE: You are allowed a second opinion BUT you really want this first evaluation to count because most certified evaluators will input into the DMV computer system directly to avoid your doctor (evaluation) shopping.

2. The IDP is mandatory in the following two situations:

-When the Court orders it as part of your CD, conditional discharge (a condition of your compliance with paying fines, and the VIP (victim impact panel)).

-It is also mandatory if you want a conditional license (New York) privilege post conviction.

Remember the NYS DMV only awards privileges for NYS whether that conditional license is good (valid) in any other state is ?

This is a crucial distinction. 

There is a PCCL (Pre-Conviction Conditional license) while you await a final disposition of your criminal case. It is given by the DMV after 30 days have run on your hardship privilege (the hardship privilege license is a conditional bridge license). The hardship privilege is merely for the 30 days following your suspension pending prosecution which occurs at the initial appearance if your BAC was .08 or higher.

When your criminal matter is resolved, usually at sentencing, you are supposed to "hand in" your pre conviction conditional license (PCCL) to the Court. If you or your attorney request, the Court will give you a 20 day stay of your suspension period. In other words, you will get your full privilege to drive back for 20 days from your sentencing date. You will get another 3 part form (like the hardship privilege document) that states the stay period, and the start of the suspension period. If after the 20 days have run and you have not signed up for the DDP classes you now have NO license privilege.

You are expected to sign up for the DDP to get a Post conviction conditional license, and you will get your full license back after the program is completed (for first time DWI offenders over the age of 21) and you pay "somemore" DMV fees.

3. The great news is after a total of seven weeks (16 hours) of IDP classes you will get your full license privilege back even if you had a DWAI: 90 day license loss or a DWI: 6 month license loss. There are some exceptions where the DMV will not shorten the Court mandated suspension period. See NOTE below.

You will have a 6 month PROBATION with the DMV on your new driver's license. No tickets of any type or you will lose this license.
If you are still driving at this point, without signing up for the IDP you are driving on a suspended license. If you are pulled over without a post conviction conditional license you are going to be charged with an AUO (aggravated unlicensed operation), a misdemeanor.

NOTE: Even if you complete the IDP the DMV will not give you back your full license privilege until the end of the revocation/suspension period:

1. if you originally had refused the breath test (the chemical test back at the station),
2. if you committed the alcohol or drug-related violation while driving a commercial vehicle,
3. if you were under 21 at the time of your arrest.
4. if this is not a first time DWI or DWAI offense in your lifetime (since 2012)
However, you can still complete the IDP and maintain your post conviction conditional license while the suspension/revocation period runs.

4. Do not confuse Pre and Post conviction Conditional licenses. The "pre" is given while awaiting the resolution of your criminal case without taking a IDP class. The pre is before your case is resolved. The "post" is only given in conjunction with signing up for and taking the IDP classes.

So I hope that this sheds some light on this pre, post, PCCL, IDP, and DWI alphabet soup. If not call or shoot me an email.

The big disclaimer: The Power of the DMV, especially since 2012 

The DMV has the ultimate discretionary powers to deny any driving privileges (limited or full) and/or relicensure depending on the motorist’s driving history and any other factors they wish to consider. This discretion may be exercised despite eligibility and after the minimum statutory periods of revocation or suspension has expired. Always check with the DMV concerning your driving status before you drive. Sometimes the Court may have sent the wrong paperwork or no paperwork to the DMV. In addition, if the DMV informs you that you do not have to do the IDP but the Court does, you still have to complete the DD.

Bottom line is get good guidance going through this whole process. People who do not will be slotted for a bad diagnosis and potentially a lot of treatment. Rehabilitation for a problem you do not have can be time, energy, and money consuming. All it takes is one person with power and authority to make your life a living hell, imagine multiples.

Sunday, March 18, 2018

NO DWI With a Keyless Remote

Key Fobs and New York DWI Don't Mix
Things are most definitely changing. Is New York DWI law keeping up? It's 2018 and most cars are no longer analog they are digital. What this means is that there are more computers and electronics in them than ever before. So many new cars no longer even use a key. Keyless entry, operation, and function are now more the norm. I even have car with a permanent key (can't be removed) but you still need a key in your pocket to operate it.

Does having more bells and whistles change the nature of the crime of DWI?

Does having keyless entry change DWI while in a parked car?

Thursday, March 15, 2018

Why You Won't Always Get a Second Chance: The New New York Sealing Law

The new New York Sealing law under CPL 160.59 is wonderful and great. It offers many second chances for a fresh start and a new beginning BUT you have qualify. After taking call after call and email upon email many unfortunately don't qualify. Some have even said other law firms and their paralegals said sure you qualify but this just wasn't true. The first hurdle is always eligibility.

The New Law Under CPL 160.59 for Sealing is Specific

If you don't meet all the criteria for eligibility you don't get to use the law at all. Most qualify for    their particular crime, NO sexual based crime and NO violent crime. Most qualify for time, more than 10 years.

The number one reason for disqualification is having more than two criminal convictions anyplace (any state) and within your lifetime.

Wednesday, March 14, 2018

Getting a Different Judge 101

Judges like all people come in different shapes, sizes, and colors. Getting one you like is usually not like picking a crayon. So if you are left with NO choice you must do your best with the judge you have.

Understanding the psychology of that judge. How do they truly think, feel, and deal with different crimes can make a difference in the outcome of your case. Ultimately the judge will be the one deciding your fate.

Judge recusal is difficult at best and not usually a possibility. The judge you start with is generally the judge that you finish with. So remember to be nice to everyone including the judge.

Recuse. To disqualify or remove oneself as a judge over a particular proceeding because of one's conflict of interest. Recusal, or the judge's act of disqualifying himself or herself from presiding over a proceeding, is based on the Maxim that judges are charged with a duty of impartiality in administering justice.

Unless you know the judge or someone close to you knows the judge, getting the judge to say he or she can't be fair and impartial is not happening anytime soon.

Sunday, March 11, 2018

Prosecutor Says NO to New York Sealing BUT Judge Says Yes!

The new New York sealing is great, and it offers second chances BUT it's not guaranteed. The prosecutor can contest (oppose) the sealing of any criminal convictions. A recent case shows just what mindset the district attorney can bring to the table.

The Case is People v. Jaime S. Case Number 4517/2003 just decided January 31, 2018. In the case the prosecutor really had two arguments against sealing the past felony convictions:

1. You already have a job, you don't need or require a better job.
2. Future employers should know about you (your past felony criminal convictions).

The judge disagreed entirely. Permitting this person to move forward in their professional life.

The case was about an IT (information technology) officer who wanted to move forward in his professional life. He had two felonies convictions involving computers from over 15 years prior.  Job offers were rescinded over and over when it came time to do the background checks even though he was highly qualified and skilled with computers. He wanted these high paying and more challenging positions BUT the old felony convictions were holding him back. 

He applied under New York Criminal Procedure Law 160.59 to have his convictions sealed so he could move on with his life and the prosecutor said no. Even though he paid his dues, did probation for years, was released early from probation, paid thousands in fines, and lived a law abiding life for    over a decade the prosecutor felt he should always have the curse of old convictions.

The judge disagreed with the district attorney and allowed sealing. There was no dispute this was a "productive, stable, and successful member of society." But the prosecutor said that "societal utility" would be better served by keeping his convictions unsealed. 

As the judge makes clear, the new sealing law is to maximize the chances of this individual and remove any blocks to his future.

The broader question then becomes, as the People implicitly argue, whether there is reason to deny him relief because the impetus and underlying rationale for the statute was the desire to help those whose criminal convictions prevented them from fully integrating into society, and not someone in defendant’s position. There has been increased discussion in recent years regarding the collateral consequences of a criminal conviction. One of the more serious of these isthe limited access to the labor market which a conviction brings (Mackenzie J. Yael, Expungement Law: An Extraordinary Remedy for an Extraordinary Harm, 25 Geo J on Poverty Law and Policy 169 [2017]).

The New York State Legislature enacted CPL 160.59 in conjunction with an amendment of the Penal Law which raised the age of criminal responsibility from 16 to 18. Concern about the collateral consequences of a criminal record was a core concern of the proponents of the bill (id.). The legislature made sure that a court reviewing a sealing application would consider its concern by requiring it to weigh “the impact of sealing the defendant’s record upon his or her rehabilitation and upon his or her successful and productive reentry and reentry into society (CPL 160.59 [7][f]). It is possible to derive from factor (7)(f), as the People do, the conclusion that if a person is already well integrated into society, there is less need to seal his or her record. 
It cannot be denied that the defendant is not among those whom the bill was primarily intended to benefit. He has had no difficulty achieving meaningful employment despite his criminal record, and has reached a comfortable economic station in life. But although he seems integrated into society and economically secure at present, there is no guarantee that such will always be the case. He seemed secure after his conviction but his status was upended in 2010 when the company that he was working for was purchased by another. The new regime offered him a position but changed its mind after conducting a background check. He suffered from anxiety and depression, and was forced to live on his savings until he found a new job. Given his record, it was not a foregone conclusion that anyone would hire him. Circumstances change, and there is no way to be sure that anyone is permanently secure in life. Whether or not he ever tries to advance himself, his conviction may yet again undo him. It makes little sense to deny the defendant relief under the statute until such time as his life takes a turn for the worse.

Granting his application now may ensure that day never comes.

Saturday, March 10, 2018

Pot Smoking and New York Drug Alcohol Evaluations

Often we are asked what to do when facing a drug/alcohol evaluation and being a marijuana user? You really only have two choices: reveal or don't reveal. I never tell my clients to lie, that is there decision. Drug/alcohol evaluations are one of those areas in which you have to use your judgment.

Public Crimes Bring Your Private Life Public

What you do privately comes into play when you make your life public. And any DWI, DWAI drugs, or other type of drug charge brings your private life public. Even though pot is legal either recreationally or medically in so many states it still has a bad rap. Many judges, prosecutors, and even probation departments are filled with people who view pot in a bad light. They do not see cannabis as anything but a dangerous substance, a gateway drug which leads to harder substances.

This mis-information about cannabis is staggering. And it continues to receive bad press even in 2018.

It has so many good uses, and it is my humble opinion that it is far better to use marijuana than so many other legal drugs.