Ithaca Lawyer New York Felony PSI's: Understanding the Pre Sentence Process for Felonies

We live in a world of acronyms. This is especially true within the field of criminal law. Everything has a shortcut, a lingo of sorts used by the Courts, defense lawyers, and Judges. Afterall who wants to spend their lives using too many words, kinda funny when you think about it because all the above parties tend to live and breathe by the word. Some attorneys even charge by the word.

FAQs about the Felony PSI = Pre Sentence Investigation

When is a Felony PSI ordered?

After every plea of guilt to a felony level crime or a finding of guilt to a felony level offense the Court (Judge) MUST order a PSI.

How do we usually get to the Felony plea?

The majority of felony pleas occur by way of an SCI (Superior Court Information). The SCI in the best of terms is an agreement, a contract of sorts between you, and the DA. It is a deal, a plea bargain. The terms of the agreement will include a recommendation, sometimes a high (maximum) or a low(minimum) amount or number of county jail, state prison, community service, fines, etc. The SCI plays an important part of the process to save the Court and the District Attorney time and effort

Why isn't my Felony case staying at the City, Town, or Village Court?

Felony level cases (charges) have to be heard in County Court. In NYS the lower level (municipal) courts only have jurisdiction (authority) over crimes (criminal and traffic offenses) up to the misdemeanor level. Misdemeanor crimes can generally be punishable by up to one year in county jail. 

How does the Felony case move to the County Court?

All criminal cases first begin at the lower level (city, village, or town). If felony level charges are brought (leveled, upcharged) either at the onset (on arrest) or later on they must proven (PC = Probable Cause) to a Grand Jury of 16 people in order to INDICT for this level of crime. The DA MUST Bring an INDICTMENT within 6 months of the initial appearance.

The other way for the case to move to the County court with Felony charges is if you agree to the charges with a plea deal (the SCI). Whether by Indictment or SCI the lower Court will transfer all paperwork to the higher level Court.

Why was I arraigned twice ?

There is an arraignment at the lower level court and then when Felony charges are brought an initial appearance (arraignment) has to occur at the County Court. Bail or ROR (release on your own recognizance) will be decided by each Judge at each stage. More serious offenses have more exposure (potential punishment) so they may require assurance of your return to Court.

Who does the Felony PSI?

The probation department in the county you have residence must perform the investigation. This is true even if you are residing in a hotel or someone's home. This may create confusion, and add time to the process because the NYS county where the offense was first committed must contact their probation department who in turn transfers the information and the investigation to the NYS county of residence.

How Important is the Felony PSI?

It is vitally important to the outcome of your case, which is the final sentencing of the Judge. This is because the Judge and the DA depend on the Probation Department. They do not have the time or the incination to objectively uncover your life history, make an assessment of your needs, and to determine whether or not you are a candidate for "pure" rehabilitation and/or harsh or lenient punishment.

How do you prepare for the PSI?

With Felony PSIs I believe you must be ready to own what you did. This is the time to accept responsibility. The expression of true remorse that is sincere and heartfelt for whatever has occurred cannot be downplayed.

Seeking the right help, whether it is in the form of mental counseling and/or chemical addiction/treatment programs shows you are dealing with the cause of your issues. Probation and the Courts are often in the business of risk management. They do not want to see you fail in the future. They will expend time and resources to assist you.

How will I know what to do, say, and be for my Felony PSI?

You and your attorney should discuss a game plan right from the Get-Go.
This will include what you are going to do from the minute you are charged, to the minute you go to the PSI. How you live your life? How you spend your time? All of this will be under close scrutiny.
Getting out your complete life history to your attorney may uncover some good quality points. How to package this, and when to send this to the Judge and the DA are a matter of timing and strategy.

When it comes down to the final sentencing, it is your attorney's ability (and sometimes) yours to articulate your position with emotion and depth of heart.

I had a Felony DWI case with a construction worker last year. It was a second Felony, and the man was clearly struggling. He was looking at hard time in State Prison. He never got to rehab or treatment because he was always working, always supporting his family. The DA was jumping up and down on a year, no less. My story to the Judge went something like this:

"Your Honor, Mr.     has been living between a rock and a hard place. Admittingly he needs help, and yet the help he most surely needs means that those he loves will go unprovided for. We ask that the Court not punish this man for loving his family but help him get the help he needs ..."

It goes on past there but I think you get my point not everyone who is an alcoholic or that makes a mistake in judgment needs to be hung up to dry. There is abalnce point where the Courts, Judges, and DAs must tread to bring a sense of humanity to what they do. They are in the justice business and it is never fully served unless the cause is addressed. BTW the Judge came back with 90 days in the county jail and a treatment program on the above matter.

My disclaimer, just because that was the result in this case does not mean that I get that or any special result in any other case. Prior results do not always equal future results. I do promise this, I do the best with whatever is in front of me.

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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

New York DWI Defense Means Holding the Police to Higher Standards

In my DWI defense practice over the years I have cross examined numerous police officers, state troopers, and county deputies. This occurs at administrative DMV hearings, Court suppression hearings, and trials. To cross examine anyone is both an art and a science. It is a way, a tool to get to the truth. The truth of what they did or did not do, what they saw or did not see, and what, if anything is in dispute or disputable. Challenging their investigation is a good way to test the waters,

If law enforcement is to do their job at a higher level then I am there to hold them and their procedures to a higher standard. Standards are more than a word, it is a term of art in DWI defense because they are NOT just called the Field Sobriety Tests, they are in fact the "Standardized" Field Sobriety Tests. 

Testing for sobriety has been around for many decades but "standardized" testing began in earnest in the 1970's. Dr. Marcelline Burns was commissioned to come up a battery of easily applied tests that could quickly and accurately gauge a motorist's sobriety at roadside. The final battery of three DWI tests she and her research team came up with are:

1. The walk and turn
2. The one leg stand
3. The horizontal gaze nystagmus test

I have a transcript from a colleague, Bruce Kapsack, a prominent California DUI lawyer who deposed Dr. Burns concerning these DWI tests. I paraphrase Dr. Burns, "if the tests are going to have meaning and be objective measures then they MUST be administered in a STANDARDIZED way."

Standardized means testing done the exact same way every time.
Standardized means using specific criteria.
Standardized means using standardized instructions.
Standardized means specific scoring.

These are still the same exact sobriety tests for the past 35 years.  They are used in all 50 states. They have to applied, administered, instructed, directed, and scored in a specific manner, hence the term STANDARDIZED. Have I made it clear yet that the police can't willy nilly say do 10 steps instead of 9 steps or hold this position for 40 seconds instead of 30 seconds. The criteria are specific.

As to officer training, the SFST manual states:

"Upon completion of the training the candidate must demonstrate the ability to administer the SFST's in the approved sequence and appropriately document and interpret the results."

Why Must We Have Proper Police Administration?

"It is necessary to emphasize this validation applies only when the tests are administered in the prescribed standardized manner. The standardized clues are used to assess the suspects performance, the standardized criteria are employed to interpret that performance. IF any one of the standardized field sobriety test elements is changed the validity is compromised."
(P.VIII-19, SFST student manual, HS 178 R9/04).

Validity is COMPROMISED!  So the tests become invalid and hence the results from the tests invalid.
So maybe we really have sobriety, a sober person because the tester did not follow protocols?

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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

The Erosion of Our Rights: First Seat Belts and Now Cell Phones Are Primary

Everyone is so concerned over a frontal assault on our 4th amendment rights. The right to be Free From Unreasonable Search and Seizure in our homes, cars, boats, and persons. What most of us have failed to see is that they have whittled away our rights with a host of legislation striking at common devices and involving driving a car. Who doesn't drive, and own a cell phone? Who doesn't drive, and listen to music?

Primary versus Secondary Offenses

With an offense that is classified as Primary: The police can STOP your car if they see it.
With an offense that is classified as Secondary: The police cannot STOP your car if they just see it.

They can issue a violation for secondary offenses if you are already stopped for another offense which is in fact primary. New York State's re-classification of cell phone tickets in 2011 as primary had a huge impact. Now we are living under a law when the use of any electronic device as a primary offense means the police have a constitutional right to pull you over (make a stop) if they believe you are using "anything" while driving. If you add to this New York's prior seat belt legislation as a primary offense, and you begin to see the bigger picture.

The Threshold, The Line, and Your Privacy Are Shrinking

The threshold used to be any equipment violation and/or moving violation would be enough to pull over a car. That was enough New York State PC (probable cause) to launch into a DWI or other investigation.

Once the police have PC to make a lawful stop of a car, well it opens the door to sniff, check, question, and open you up so to speak. Your right to privacy is no longer present, and you are subject to search and seizure. The increased number of criminal arrests for UPM (unlawful possession of marijuana), DWI (Driving While Intoxicated), and AUO (aggravated Unlicensed Operation) within the past year all stem from the shift of the illegal use of portable electronic devices to primary law enforcement status.

Why Is Distracted Driving Limited to the Use of Portable Electronic Devices?

I still wonder why NYS currently classifies Illegal activity as “holding” any electronic device and:

• Composing, sending, reading, accessing, browsing, transmitting, saving, or retrieving electronic data such as e-mail, text messages, or web pages
• Viewing, taking, or transmitting images or Playing games

There is a host of other more driver involving distracted driving. I have four kids, when they were younger if they didn't distract me while driving that would be a feat short of amazing.

The new law does NOT include using a mounted GPS or other device or eating while driving or putting on make up while driving or reading a book or magazine while driving. 

Key Takeaways:

1. Be aware that you have little to NO privacy in your car or anyone else's. 
2. Be aware that even the appearance of using a portable device could trigger a lawful stop of your car.
3. Beware that this may lead to a lawful search of your car and of your person.
4. Beware that this may lead to even a seizure of you or of anything you are carrying or possessing.

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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Cortland Traffic Lawyer When is a Guilty Plea Not a Guilty Plea?

The fast answer is "when the guilty plea is qualified" it is NOT an acceptable plea of guilt. Judges must accept pleas, they must give their consent before the plea is accepted and sentencing is announced.

I have people call me about speeding tickets. This one caller wanted to know why since they checked off the guilty box, ie. sent in a plea of guilty to the Court,

Why did they receive back a response letter that stated that the Judge had set it for trial? They didn't ask for a trial?

How did that happen? Why did that happen? So many questions so little time.

If the Court (Judge) had accepted the guilty plea they would have just assessed a fine (based on a range), and the applicable NYS surcharge. If the plea was accepted they would have received a fine notice letter but they did not.

What they forgot to tell me was that they checked the guilty box BUT also included an explanation. This little explanation amounted to qualifying the plea. I am guilty BUT not really because my speedometer was broken, or I wasn't really going that speed, or the road was not clearly marked.

Judges cannot accept pleas of guilt that are not complete, voluntary, and based in fact. More serious criminal cases involve an allocution. This is where you (under oath) must state for the record you are not under the influence of any drugs, in a right state of mind, realize and understand all the rights you are relinquishing, potential consequences of pleading guilty, nature of the charges, and give facts that prove to the Court that you did in fact have a basis in fact for your plea of guilt.

If you in any way are denying guilt or refuting some or all of the charges against you that amounts to a NOT guilty plea. If you did nothing at all (no plea) the Judge must assume you are entering a NOT guilty plea. My advice is to consult with an attorney before committing to any plea.

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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

To Skin or to Trim? The Dangers of Boilerplate Language

In law school I can distinctly remember a legal case where everything hinged on where a "comma" was placed in a contract. A simple comma made the difference between what the parties (people) had promised (agreed to do) and what they did not.

Can you even begin to imagine the thousands of hours that lawyers spend writing agreements that are "ironclad" and that take into consideration just about any future happening? The use of certain specific words are also known as the "terms of art" and the commiserate commas, periods, and a host of grammatical nuances can turn a contract into a jail sentence.

SENTENCING IS THE FINAL CONSIDERATION

This comes into play in the area of criminal law as well. At the end of the criminal case there is a sentencing. At that sentencing there is an agreement, a form of a contract, called a CD, a conditional discharge OR a set of probation terms OR something in between the two. It could involve community service, taking a class, or even staying out of bars or trouble.

DEFINITIONS


Everything (all important words) requires a definition. How do we know if we are talking about the same thing if we cannot first agree on the terms (the definition). What do these words mean? What do they stand for?

THE SALMON BUY

I recently went in to buy some salmon. Kinda like scoring drugs, what do you want and what weight? I wanted the North Atlantic Salmon but I wanted it to be "cleaned" ie. ready to cook. I like eating fish but not cutting it up. I asked the guy to "trim" the fish. He thought I meant, get rid of any yucky (unusable) parts. So he answered me, "within the limits of what I can do?" I said, "what?" He cuts off the ends of the fish, slices me up 6oz. pieces, and bags it. I say I wanted it "trimmed"... he said "I did" but I say but it still has skin?

Oh he says, "you want it SKINNED NOT TRIMMED!"  Skin versus trim, I wanted him to get rid of the fish skin. One word and all the difference between two things.

BOILERPLATE


Boilerplate refers to the common legal terms, words, and language that are used in many contracts. How much of any agreement is the boilerplate, and is all that boilerplate necessary? and is it all that applicable to your specific situation? Sometimes it is good to question and to challenge the language, and the terms. Can we modify? Will the DA allow us to modify? Will the Judge go along with the modifications?

I have found mistakes on many occasions. Sometimes the probation department or the Court uses the wrong boilerplate. Hey big surprise, there are things in here that don't apply. Reading is a big part of what a lawyer does, and writing is number two. Insure that what you are getting is what you have bargained for, and that requires the assurance of a review.

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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

When is a Bargain Not a Bargain? New York Lawyer Explains the Three Keys to a Plea Bargain

Riddle me this Batman, and so I thought I knew what a bargain was until I met some assistant DAs who had other ideas very different than my own. Bargains are always very personal opinions. They are when a buyer meets a seller, and thinks (believes) he is getting the better end of the stick.

I negotiate regularly. It is an art and a science. Most matters in this country are handled by plea bargaining. Over the course of my life I have gotten bargains. I have also had some people look to sell me things with prices way over what they were worth. I am a seeker of value. When something is or is not worth it, I'll be the first to let you know. I flatly refuse horrible deals.

So when is a bargain NOT a bargain:

1. When you are "paying" too much.

Nobody likes to pay too much for anything, even a crime. Paying too much can mean a few different things within the area of criminal law. Settling on a deal with either (a) too many charges (offenses), OR (b) charges that are at too high a level, OR (c) sentencing positions (recommendations) that are too harsh. This paying too much must always be based upon the charges, nature/circumstances of the offense, your potential defenses to the crime, and/or your past history.

2. When you are NOT fully informed of your Future Obligations (conditions).


Maybe your obligations will extend beyond the surface (beyond the written condition). Everything will not always be spelled out. Your lawyer needs to fill in the blanks, and help you read between the lines.

example one: If you are being evaluated or assessed (mentally or chemically) you will also need to follow through with recommendations. So you better ADD that in, that's another obligation (the follow through).

example two: All the terms and conditions of either a CD (conditional discharge) or Probation can have
additions and deletions (better read them carefully). Time periods can vary from months to years.

3. If the Judge is NOT going along with it.

S/he has to agree with the deal (the offer) or the deal is going nowhere. It's NO deal if it can never be consummated. Judges are always the third party to every deal. A prosecutor or ADA that makes me an offer must make one that is going to go through. I always want to know if the Judge is going to agree or is the Judge going along with a range. Will they agree to no greater than the PSI, or no greater than 30 days, or no greater than ________ blank.

Three very simple reasons that a deal (bargain) is NOT a bargain.

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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com

Ithaca Cortland Lawyer: What is Your DWI (criminal matter) Exposure Under the Law?

As a DWI defense and PI (personal injury) lawyer people ask me my opinion on legal (and sometimes non legal) matters almost daily. It suits me perfectly for I am quite opinionated. It is either part of my character or it is in my nature but I have thoughts on many subjects. I like to think and express.

Believe of not I have views on restaurants, businesses, philosophies, paradigms, and even Tilapia, see my blog on Tilapia and adjectives:

http://ithacadwi.blogspot.com/2012/06/of-tilapia-and-adjectives-undervalued.html

Being Exposed

I like to use specific words to help people understand their situations. Words can either cloud or clear their view or perspective. I believe the first place to start a discussion about a problem or issue people are facing is to look at their EXPOSURE.

Exposure means what are they facing or potentially being subjected to? Whats lies in the distance or the near future for them? What should they expect, and when should they expect it? In other words, a person charged with a crime has to consider "their" openness.

1. Exposure is Always Personal

Two people can be facing the exact same criminal charges, and be exposed to vastly different things. How does that work? Because if one has a prior history of criminal and/or drug activity their exposure is greater than the unblemished first timer. Punishments ratchet up not down within the system. It is believed that if someone "continues" the same course or a bad direction of behavior that s/he must be dealt with more severely.

NOT just the Personal Past but those with a Personal Future

Exposure as being personal is not merely about where they have been, it also encompasses where they will be going. In other respects those with or desiring special licenses (doctors, lawyers, nurses, pharmacists), certifications (teachers), security clearances (government industries), positions of trust (banks, financial institutions), employment, military duty, educational opportunities, and permissions/privileges must take into consideration their present or future situation.

2. Exposure Follows a Direction

So punishment normally follows a path, we go from a set of Court Conditions to more extensive (harsher) conditions/obligations to Probation Supervision (monitoring) to County Jail (local) to State Prison or a combo of those things. Things usually go from bad to worse before they get better. There are creative options, such as rehabilitation and/or treatment programs that may jump you off this dead end track.

3. Exposure is Always Dual, it is always a Charge (crime/offense/level) and a Recommendation

People tend to focus on only half of a plea offer. They only focus on what charge is being offered. The basis of any plea bargain is two distinct things. A plea to a charge, AND a range of sentencing or a recommendation of sentencing to the Court/Judge.

NOTE: NYS has wide punishment ranges on just about everything (offenses/crimes) including violations (like speeding tickets). There are some mandatory things but by and large the Judge has great discretion.

The District Attorney's recommendation can state, no greater than a PSI (pre-sentence investigation) or what probation feels is an appropriate punishment or course of action. It can state no greater than 6 months in jail, or just probation, or a conditional discharge. Most judges will give the People's (the DA's) recommendation as part of a criminal plea bargain great weight in sentencing.

What punishments, penalties, fees, fines, programs, obligations, discomforts you will face are as important a consideration as the charge itself. Remember that ultimately the Judge will decide your fate, your penalty, and what you owe to set the balance scales right.

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

Doctor of Chiropractic

Attorney and Counselor at Law

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

http://www.ithacadwi.com

http://www.ithacainjurylawyer.com