New Year's Eve: What is a New York CD (conditional discharge)?

My final blog post for 2011 is: What is a New York CD (conditional discharge)?

I am reminded of a favorite Dr. Seuss book, “Oh, The Places You Will Go” when I think on NY CDs. This is because I believe that New York Criminal court can be an “adventure” of sorts. I recently had someone send me an email asking me what a CD was, and then I checked some message boards. There is plenty of misinformation out on the internet so with this in mind I aspire to bring some light on the subject of CDs.

First, what is a C.D. NOT:

• A CD is NOT a dismissal of the charges. If the charges are Dismissed there is NO sentencing.
• A CD is NOT an expungement of the charges. NYS has NO expungement, it does NOT exist.
• A CD is NOT related to whether or not you have been convicted of a crime. You are considered convicted of a crime whether you plead guilty to a misdemeanor or are found guilty after a trial for a misdemeanor. Violations are considered offenses but are NOT classified as CRIMES. This is a source of endless confusion. Sometimes called Offenses and  violations but "may or may not" be New York State crimes (misdemeanors and felonies) but are they "criminal" convictions. Remember to always consider to that state (New York) not to compare state to state.

Go to my Video on New York CDs here:

http://www.youtube.com/watch?v=Pg_6GE7Dlvo

Basically a CD is a form (type) of sentencing by a Court (Judge).

It is merely a sentencing option.

These are the options at or for sentencing (assuming a plea or a finding of guilt to something):

• There is an Unconditional Discharge. You have NO conditions to discharge your obligation to the Court.  These are rarely given.

• There is a term of jail (incarceration). Whether for a term of weekends, days, weeks, or months.

• There is a term of probation. You get a probation officer.  You must submit to whatever they direct you to do or not do for a period of time. Misdemeanor probation is for three years.

• There is the CD (conditional discharge). I say “the” CD because there is only one type. You have certain (specific) conditions aka obligations to meet to satisfy the Court. The main condition is No new crimes (no new arrests) for a period of time. This is generally for one year. If you violate this main condition then you will be re-sentenced for the offense you plead guilty to, not the original charges. New conditions can also be imposed, such as drug/alcohol counseling, jail, and/or probation.

This is the actual statute:

NEW YORK STATE PENAL LAW

§ 65.05 Sentence of conditional discharge. (Highlights and additions mine.)

    1.  Criteria.  (a)  Except as otherwise required by section 60.05, the

  court may (option) impose (give) a sentence of conditional discharge for an  offense  if

  the  court, having regard to the nature and circumstances of the offense

  and to the history, character and condition (no priors, no aggravators) of the defendant, is of  the

  opinion  that  neither the public interest nor the ends of justice would

  be served by a sentence of imprisonment and that  probation  supervision

  is not appropriate.

    (b)  When a sentence of conditional discharge is imposed for a felony,

  the court shall set forth in the record the reasons for its action.

    2. Sentence. Except to the  extent  authorized  by  paragraph  (d)  of

  subdivision two of section 60.01 of this chapter, when the court imposes

  a sentence of conditional discharge the defendant shall be released with

  respect  to  the  conviction  for  which the sentence is imposed without

  imprisonment or probation supervision but subject, during the period  of

  conditional  discharge,  to  such conditions (obligations) as the court may determine.

  The court shall impose the period of conditional discharge authorized by

  subdivision three of this section and shall specify, in accordance  with

  section  65.10,  the  conditions to be complied with.  If a defendant is

  sentenced pursuant to paragraph (e) of subdivision two of section  65.10

  of  this  chapter,  the  court  shall  require  the administrator of the

  program to provide written notice to  the  court  of  any  violation  of

  program  participation by the defendant. The court may modify or enlarge

  the conditions or, if (the Big If)  the defendant commits  an  additional  offense  or

  violates  a  condition,  revoke  the  sentence  at any time prior to the

  expiration or termination of the period of conditional discharge.

    3. Periods of  conditional  discharge.  Unless  terminated  sooner  in

  accordance  with  the  criminal procedure law, the period of conditional

  discharge shall be as follows:

    (a) Three years in the case of a felony; and

    (b) One year in the case of a misdemeanor or a violation. (could be longer)

    Where the court has required, as a condition of the sentence, that the

  defendant make restitution of the fruits of his or her offense  or  make

  reparation  for  the loss caused thereby and such condition has not been

  satisfied, the court, at any time prior to the expiration or termination

  of the period of conditional discharge, may impose an additional period.

  The length of the additional period shall be fixed by the court  at  the

  time  it  is  imposed  and  shall not be more than two years. All of the

  incidents of the original sentence, including the authority of the court

  to modify or enlarge the conditions, shall continue to apply during such

  additional period.

Lawrence Newman, D.C., J.D.

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

newman.lawrence@gmail.com

ithacadwi.com

Ithaca Lawyer: The Value of Sleep and Mental Alertness

I am a 50 year old man. There is one thing better than food, sex, or a court victory... that is a good night's sleep. I'm talking about those delicious REM (rapid eye movement) deep dream sleep moments. With four kids (2 in college and 2 in their teens) a good night's sleep is not always easy or a practical reality.

I remember from the movie Fight Club (I love this movie) when Norton talks about his drug induced sleep (from pills), and compares that level of sleep to "real" rest. The natural state of relaxed and fulfilled nocturnal bliss. His brain and his life in chaos, worry, anxiety, and turmoil leading to his break with reality.

Is sleep just that important? I say a fast yes. Apparently The DOT (Department of Transportation) feels the same way, recently (December 2011) they changed the rules and regulations for a truck driver's hours of service. This is when and how often they (truck drivers) can drive a truck in any given week. They reduced the total weekly hours by 12. Going from 82 hours to 70 hours in total. This is a huge change to be implemented and enforced upon a work force based in results per hour. I predict more violations of the rules, the logging of hours, and unfortunately the number of crashes. When money (profits) are placed ahead of people (safety) no rules or laws are going to fix the (long term) problem.

I will talk further about the new rules and regulations in future blogs. Suffice it to say, sleepy, drowsy, and fatigued truck driving has led to so many fatal crashes that the DOT has finally acted.

Dr. Lawrence Newman
Doctor of Chiropractic
Attorney at Law

607-229-5184
newman.lawrence@gmail.com
IthacaInjuryLawyer.com

Truckers With Sleep Apea, a True " Catch 22"

Catch 22 is a dated phrase going back to a novel written by Joseph Heller. The story involved a military (COMBAT) officer who wants out of active duty. In order to get out, he must decide (turn himself in) to have a psychological evaluation to be determined unfit for duty. BUT In order to make this decision (to have an evaluation and be declared Un-fit) he must be sane therefore the reason for the decision to have a psych evaluation to declare him as insane is impossible.  WHAT? Circular reasoning at it's best. You can't get what you want unless you prove that you don't want or deserve what you want. HUH?

This is one of those crazy situations, like being between a "rock and hard place." Kinda like you can't get the job unless you have proper experience but the job (is the only place to get the training) will give you the experience you need.

In the real world of trucking, drivers face a similar dilemma. The "no-win" or "lose-lose" of having a medical evaluation to diagnose and treat their health problems at the cost of losing their job. Many truckers have a medical condition called, sleep apnea or obstructive sleep apnea.

Basically you wake up a lot in the middle of the night because your airway passage closes down (becomes blocked). It causes fatigue, irritability, cardiac problems, breathing difficulties, and other serious chronic medical issues.  Drivers without quality sleep, real REM (rapid eye movement) deep rest have all those health conditions progressively worsen to the point of debilitation.

CDL (commercial driver license) holders must be physically checked, evaluated, and qualified medically every two years. This condition disqualifies a driver. They are without a job if they have a medical condition that can potentially impact their driving safely.

Statistically over 30% of truck drivers have sleep apea, and those are the ones we know about. How many truck accidents are the result of fatigue (distracted driving) and that have an underlying cause in driver sleep apnea we may never know.

Dr. Lawrence Newman, D.C., Esq.
IthacaInjuryLawyer.com

504 North Aurora Street
Ithaca, NY 14850

607-229-5184

Comparing Apples to Apples in Ithaca, NY

I know it's not apple season in Ithaca, NY but it's always a good time to talk apples to apples.

I field dozens of calls each and every week.  Problems require answers, more like they demand answers. I am often asked for my opinion, and to compare things. 

• What is likely to happen?
• What can I expect at each stage?
• How is this going to go (progress) for me?
• How long will my case take?
• What is my best course of action?

Inevitably people throw in that a friend or family member (maybe someone in a position of authority) told them this or that. Maybe that someone genuinely cares, and sincerely wants to help them. 

But, but, but... I always like to compare apples with apples. 

I know, I know that this is how they do it in New York City but NOT in Ithaca, NY. I know, I know ten years ago or six months ago your friend in New Jersey or your brother in law in Pennsylvania got X amount of money or had to only do Y but this is what is happening here (in Tompkins County, or Broome County or Cortland County). 

It drives me crazy when people place two entirely different situations in the same context. 

There are Three Things to at the very least compare apples to apples:

CONTEXT

First, number one, before all else we need to determine the playing field, the CONTEXT. Nothing ever happens in a vacuum. Everything is based upon TIME and SPACE. If you are in NYC the price of a burger and it's general quality and your options may be almost limitless. NOT SO in Tompkins county. Legal actions or disputes also must be placed (considered) within an APPROPRIATE context. 

APPLICATION

The laws in NYS are the same but the APPLICATION may be different. The RANGES of compensation on Personal Injury cases county to county are as different as are the punishments for various crimes throughout the state. 

TIMING

Lastly, we must look at TIMING. What happened last week, last month, or last year is not TODAY. Judges change, legal opinions are in flux, and what one ADA may do (give, or offer) another (from the same office) may not. Quite simply Things Change, sometimes overnight. 

With these things in mind, an attorney in that locale,with knowledge of that area of the law, may be able to offer "a range of predictable certainty." Now that's something worth knowing.

Dr. Lawrence Newman, D.C., J.D.

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

newman.lawrence@gmail.com

www.IthacaInjuryLawyer.com 

Truck Accident Cases are a Different Animal than a Car Accident Case

I want to share with you why a NYS Truck Accident case is far different than a NYS car accident case.

see my YOUTUBE video "Why Truck Accident Cases are Different than Car Accidents," here:

http://www.youtube.com/watch?v=qKu5VmPCfdg

SEVEN "BIG" REASONS WHY A TRUCK CASE IS DIFFERENT:

Car accidents generally have one defendant (party to blame) to sue. Usually owner of car/driver of car.

Truck accidents can have multiple defendants from many states. The number of potential parties to hold liable is huge. The Broker, the Shipper, the loaders, the Carrier, the Driver, the Lessor, the Renter, the Manufacturer, and/or the Equipment repairer. We can have multiple owners, lessor, and/or renters because there is a truck and a trailer. On top of that are the number of theories of liability (legal fault) ranging from negligent hire, to negligent supervision, to negligent retention, to negligent driving, to negligent packing, to negligent inspecting, to negligent repair, and/or negligent maintenance.

Car accident lawsuits are typically brought in a local state court.

Truck accident lawsuits can wind up in a local state or Federal court. This is because the lessor, the renter, and/or the common carrier of the truck and/or trailer may be based in different states or even Canada.

Car accidents are typically rear end collisions involving two vehicles.

Truck accidents are primarily from lane changing, and can involve multiple vehicles. Sideswiping from lane changes is typical because trucks have "NO ZONES." These are large areas around the truck where the truck driver has "NO VISION." These are also referred to as "BLIND SPOTS."

Car accidents are usually caused by driver error.

Truck accidents can be caused by driver error but additionally there can be mechanical issues, defective equipment, loading issues, and improper repair and maintenance issues. Many trucks that are out on the road are in violation. When investigating a truck case it is more typical than not to discover brake, tire, wheel, and suspension issues contributed in some way to the crash. 

Car accident cases may or may not have high amounts of bodily injury (ability to compensate an injured person for injuries) insurance coverage.

Truck accidents are covered under Federally imposed bodily injury insurance. This mandatory coverage ranges from $750,000 to the millions depending upon the number of defendants, the type of cargo being hauled, and the companies involved.

Car accidents involve "amateur" drivers who are held to lower standards.

Truck accidents involve "professional" drivers who may drive over a hundred thousand miles a year, hold CDLs (commercial driver license), have endorsements to drive and haul specific trucks and cargo, are highly trained, are regularly drug and alcohol tested, have to log and document every hour of every week they work, are responsible for daily vehicle inspections, and are certified annually to be healthy enough to drive.

Car accident claims generally do not require the use of an accident reconstruction expert or an investigator.

Truck accidents require a full investigation into all potential sources of liability (fault). This may involve hiring experts in accident reconstruction, truck equipment and operation.

Questions to ask following a truck accident:

•            Were there any driving violations?

•            Were there any State and/or Federal law violations for “hours-of-service and/or duty status?”   

              Truck drivers have to log and account for all their hours both on and off the job. 

•            Was the driver properly licensed?

•            Was the driver properly endorsed?

•            Was the driver qualified, trained, and experienced to drive that type of truck?

•            Did the driver have their Medical Examiner’s certification proving “physical and mental fitness” 

              to drive?

•            Did the driver have all necessary medical waivers for their medical conditions? 

•            Was the truck properly inspected, repaired, and maintained?

•            Was there documentation of the equipment’s periodic inspections?

•            Were the brake systems on both tractor and trailer in proper working order?

•            Were the rims, wheels, and hubs within Federal guidelines for safety?

•            Were the tires within Federal guidelines for safety?

•            Were the coupling devices within Federal guidelines for safety?

•            Were the suspension parts in safe working condition?

Dr. Lawrence Newman, D.C., J.D.

504 North Aurora Street

Ithaca, NY 14850

607-229-5184

newman.lawrence@gmail.com

www.IthacaInjuryLawyer.com 

Ithaca Cortland Lawyer What is New York DWS? = Driving While Stoned or DWAI Drugs

Watch this video to see the special police test for marijuana while driving

A new study shows that teen use of pot has increased while there is a remarkable decline in drinking. They surveyed 47,000 teens so I think the evidence is pretty compelling. Although my son says you can skew (twist and interpret) any data with statistics to support your opinion.

Is this a good thing (decrease in alcohol, increase in pot)?
Which is worse "drunk" driving or "high" driving?

Before you accuse me of promoting either activity let me state for the record, I do not advocate anyone driving while under the influence of "any" substance that would cause them to be a danger. BTW Studies have shown that driving while tired and texting can be just as dangerous as being impaired by a drug. Many more car and truck accidents have been attributed to driver fatigue than intoxication or impairment combined.

Many people I talk to believe that marijuana should be legalized. I don't think that is going to happen anytime soon. It is being, and has been decriminalized in many states. There is a trend (14 states and counting) to have medical marijuana. I think marijuana has it's place, compared to other drugs, it is safe, and should not be demonized.

Alcohol the DRUG

Most people forget: Alcohol is a powerful DRUG, but because it is: not sold in a pharmacy, socially acceptable, legal, and easily obtainable (local gas station) we downplay it's ability to affect us. We minimize alcohol, and the fact that about one in ten people is an alcoholic (alcohol dependent).

I believe that drunk driving has proven much more deadly than high driving. Regular (daily) pot users learn to do tasks while high. I have seen fully functional daily stoners. However, you choose to define fully or functional. This is also true to a certain degree for alcoholics but not to the same level or standard.

Neither is a good thing by any stretch of the imagination. It troubles me to see high driving portrayed as so innocuous in the movies. Being wasted out of your mind and driving may be funny in the movies but I would not want to be on a road with that person. So my answer is I do not think an increase in pot use is better. I think it opens up the door once again to teach people to respect all drugs and their ability to affect us. Being aware that with pot, the THC levels may vary greatly crop to crop. Difficult to always know how you may be after only smoking a joint. It also might be "laced" (tainted) with other drugs. Worse than drunk driving or high driving is the combination drunk/high driving.

TRENDS

I have seen a rise in those charged with DWAI drugs in Ithaca, and upstate New York. This is DWI on any drug other than alcohol. This charge is a crime (misdemeanor level). It is punishable to the same extent as alcohol DWI but without the mandatory ignition interlock device. Many of the cases I have defended involved either pot or prescription drugs. Combining multiple (prescription) drugs that cause drowsiness, muscle relaxation, and decreased reaction time spell disaster out on the road.

See my YouTube videos on "DWAI drugs" part I here:

DWAI Drugs part II here:

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

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

Reviews of Larry Newman:

http://www.avvo.com/attorneys/14850-ny-lawrence-newman-530905.html

Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers

Please avail yourself of my online materials which include over 500 blog posts, dozens of articles, and over 470 informative videos on my youtube channel.

All Things Great & Small: The Wonders of the Patella

I love the body. How it works, it's masterful design, and the engineering. They all add up to a miracle. When a person is injured there are changes in their anatomy which affect their physiology. I believe that most people if they knew just how function and structure correlate would appreciate their health.

The Patella is a little bone. It sits just a few inches around. Often overlooked and undervalued as a bone or as even a part of your 200 plus bones. As they say, "you don't know what you got till it's gone." A person with a Patellar injury is going to have major problems with even the most basic functions, like walking or even standing.

See my YouTube Video, "The Patella is a Small Bone with a Big Purpose" here:

http://www.youtube.com/watch?v=zmUWXSJrRto&list=UUBwBPLfPQYrF6MC3STcNOsw&feature=plcp


Why? All all about Engineering.

The Patella sits as an engineering marvel. It acts as a fulcrum. It provides the body with a leverage arm to increase the power of the thigh muscles (the quadriceps) acting upon the leg. This is referred to as mechanical advantage. And what an advantage it is,Without a healthy and fully functioning (properly moving/gliding) patella your ability to walk, stand, kick, squat, and do all those things you take for granted is virtually lost. A thigh without a patella becomes a weakling.

What's Important? Structure and the Balance

In my chiropractic practice, I treated many different patella injuries and tracking disorders (misalignments, subluxations) from car accidents. Often these were due to knees banging into dashboards and steering wheels. The key to the Patella is balance. It can't be set too far to the left or the right (medial or lateral thigh) or else it loses it's effectiveness. All things within the body (to function at their highest level) must not only have integrity (healthy bone, ligaments, tendons) but also proper alignment.

Dr. Lawrence A. Newman, D.C., Esq.
Personal Injury and Criminal Defense Attorney

504 North Aurora Street
Ithaca, NY 14850
607-229-5184

www.IthacaInjuryLawyer.com

Ithaca Lawyer Explains Impairment versus Disability

People love to throw around words. Sometimes I do the same thing, use the wrong words in the right context or the right words but in the wrong context. Ah I love words, their origin, their power, and most of all their ability to express.

In the world of personal injury law two terms are often misused. Impaired and disabled are not the same thing although they are used interchangeably. Someone can have a great impairment with NO disability and yet a small impairment with a COMPLETE disability. Can people be impaired and disabled? yes. Can people be impaired but not disabled? yes. Can people be disabled but not impaired? this one is a NO.

How does that work?

Impairment always relates to function or the ability to use a part or system of the body.
Disability always relates to a specific job or vocation.

In order to determine a degree of disability (the ability to perform a job) a doctor or vocational expert would need to know what the physical and/or mental requirements of that job are. To walk a certain distance, stand for a specific time, to lift x pounds x times, to carry, etc. Someone could have a partial disability (can do a part of their job) or a complete disability (can do none of their job duties).
NOTE: When someone is classified as completely disabled that means they can't do ANY job. Their disease, dysfunction, impairment, and problems so affect them they cannot be employed.

In order to determine a degree of impairment a doctor must test (examine and evaluate) the area of the body in question for function. This may include x-rays, MRI, CT scan, neurological testing (NCV, EMG), muscle testing, etc. and a physical exam. Physical exam testing includes: ROMs (ranges of motion) both passive and active, strength, reflexes, and orthopedic tests for abnormalities (disease/injury). Putting all this together leads to a diagnosis (what is wrong?), prognosis (predicted future), and an impairment rating (in degrees) based upon the AMA Guides to the Evaluation of Permanent Impairment or some other manual.

The Job is important in the overall determination. Someone that needs their hands to do their job ie. a concert pianist, would be completely disabled if they lost a finger (a relatively small impairment). While an attorney would have no disability if they lost an arm or a leg ( a large impairment). In other words, they could still perform their job.

See my You Tube video Impairment vs. Disability here:

http://www.youtube.com/watch?v=vyvdF2ZAjrk

Dr. Lawrence A. Newman, D.C., J.D.
Chiropractor and Attorney
607-229-5184
http://www.ithacainjurylawyer.com/

Law Offices of Lawrence Newman
504 North Aurora Street
Ithaca, NY 14850

Ithaca Traffic Lawyer Understanding Out of State PA & NJ license holders, Tickets, and Points on Your Record

Speeding tickets, and moving violations are all too common around Ithaca where the limits change rapidly from 55mph to 45mph to 30mph in the blink of an eye. If it's late at night, and the roads are more desolate (especially in the winter) the police are out shooting ducks (can you quack?) in a barrel.

What if you are from NJ (have a New Jersey driver's license)?

Will NJ give your New York Violations points?

btw (I'm licensed in NJ, NY, FL, and PA)

NJ will assign 2 points for any out of state violation. But keep in mind that your insurance will give the full weight to a 4 point, 6 point, or 8 point violation.

What if you are from PA (have a Pennsylvania driver's license)?

Will PA give your New York Violations points?

Although reported to PennDOT, minor traffic offenses such as speeding, red light, stop sign, etc., will (NOT) appear on your driving record, unless you are a CDL holder.

You should also know that NY (licensed drivers) take points from NO other states but does take points from Ontario and Quebec (we have a special agreement with Canada). Warning: this does not mean your insurance will feel that way.

 Lawrence A. Newman, D.C., J.D.

607-229-5184

www.IthacaInjuryLawyer.com

Signs, Signs, Everywhere a Sign

It was a beautiful, cold, Ithaca Sunday morning. I was out walking when I spotted all these signs stuck in the grass. You know that song, “Signs,” famously covered and recorded by Tesla in 2007, originally recorded by Five Man Electric Band, “signs, signs, everywhere a sign,” well I did see some WARNING signs, and I was pretty floored.

·      Are people supposed to safely navigate over snow and ice?

·      Is the landlord not responsible to salt, clear, and maintain these areas?

·      Especially with the knowledge that people are walking over these walkways and steps every day?

·      Can a landowner negate their duty?

·      Can a landowner put up signs (in advance of foreseeable weather) to negate (their obligation) to maintain safety?

A big wow because they cannot do any such thing. New York State Law is Clear:

What is a New York State’s Landowner (landlord’s) DUTY?

 

Indeed as the duty was so clearly stated in Smith v Arbaugh's Rest. (supra, p 100): "A landowner must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk".

·      How risky is it to walk up steep steps with no handrail?

·      Risk of fracture is great.

·      Slip, fall, and something is sure to break.

·      Injuries to the knees, hips, backs, hands, and wrists from falling onto the sidewalk is not only likely but dangerous.

The Court in Smith continues by stating what this DUTY is:

Application of the single rule in the instant case exemplifies its good sense, for the duty of keeping the roads of Ice Caves Mountain in repair should not vary with the status of the person who uses them but, rather, with the foreseeability of their use and the possibility of injury resulting therefrom. While the likelihood of a plaintiff's presence had been an implicit consideration in the determination of status and the duty commensurate therewith, it now becomes a primary independent factor in determining foreseeability and the duty of the owner or occupier will vary with the likelihood of plaintiff's presence at the particular time and place of the injury. While status is no longer determinative, considerations of who plaintiff is and what his purpose is upon the land are factors which, if known, may be included in arriving at what would be reasonable care under the circumstances.

Is the state’s (governmental entity) DUTY different?

It is not disputed that when the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord (see Court of Claims Act, § 8; Preston v State of New York, 59 N.Y.2d 997, 998; Bass v City of New York, 38 AD2d 407, 411, affd no opn 32 N.Y.2d 894, supra; Duren v City of Binghamton, 172 Misc 580, affd 258 App Div 694, affd 283 N.Y. 467).

The difficulty here arises from defendant's dual role, where it has acted in a proprietary capacity as a landlord by its ownership and control of the SUNY campus, and also in a governmental capacity by providing police protection through the appointment of campus security officers "to preserve law and order on the campus" (see Education Law, § 355, subd 2, par m). A governmental entity's conduct may fall along a continuum of responsibility to individuals *512 and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category.

"[I]n determining the extent and scope of the [State's] duties as a landlord, we must `distinguish those liabilities attendant upon governmental activities which have displaced or supplemented traditionally private enterprises' (Riss v. City of New York, 22 N.Y.2d 579, 581) and are performed in a proprietary capacity from those which are and have always been considered governmental in nature" (Bass v City of New York, 38 AD2d 407, 411, affd no opn 32 N.Y.2d 894, supra).

Signs aren’t going to negate your responsibility to the public. Signs aren’t going to negate your liability if someone gets hurt because you failed to adequately maintain safety. No, Signs aren’t going to let you off the hook if someone G-d forbid breaks something on a sheet of sidewalk ice.

Lawrence A. Newman, D.C., J.D.

607-229-5184

www.IthacaInjuryLawyer.com

The Stress of Arrest

We all know that stress kills. In 1967 two psychiatrists, Drs’ Holmes and Rahe came up with the Stress Scale. They studied 5,000 people, and proved a causal link between specific stressful events, and a person’s overall health. They assigned (quantified) different numbers of "Life Change Units" to things like divorce, job change, and the death of a loved one to figure an estimate of how likely that person would experience ill health in the coming year. They were way ahead of their time. These days we take for granted, words like holistic, and approaches to understanding human ills based upon internal (mental) issues.

But the doctors left a few life events off their scale. They didn’t calculate the effects of an arrest, and pending criminal charges.  I often wonder how they would fair (or figure) in terms of the stress scale? In some respects the mind has greater difficulty with the “pending” element. Nothing is more stressful to me then the hanging in the balance. Oh the dread of waiting, the expectation of punishment, and the stagnant air of uncertainty.

I believe from dealing with hundreds of clients that the stress of any litigation (legal proceedings) is enormous. Clients have reported to me that they are unable to eat, sleep, think, study, and work while their matters are pending. I think that being aware of this potential stress can allow you to prepare for it.

1. Keep your problems in perspective. Your attorney should place them on the spectrum of black and white. Your case is usually a shade of grey.

2. Think about what you are facing in it’s totality. Do not negate any parts of it. Don't minimize it. Confront it early, and create a game plan for dealing with all of it. It is best to look at all of it not some of it. The mind (psyche) doesn't play that game too well. Anything left hanging sits in the recesses of your consciousness.

3. Purposely adopt healthy practices during this time. Exercise, eat well, drink water, and practice any form of self-care. This may be a perfect opportunity to turn a corner.

4. Communicate with your attorney, any and all fears, any questions, any concerns, and get as much certainty about your situation as is possible. Remember that Uncertainty (much like the unknown) is the real killer. The more you know the more empowered you will feel in the most stressful situation.

Dr. Lawrence A. Newman, D.C., Esq.

607-229-5184

www.IthacaInjuryLawyer.com

The Lawyer's Art of Argument

People believe lawyers like to argue. Well it kinda comes with the territory so to speak. We are trained in law school to look for "Issues." Issue Spotting 101.

What is an issue? An issue is where there are two or more sides, two or more points of view, and/or two or more facts in dispute. Ah the magic word dispute. 

That's what we do, we dispute (hey it's a verb and a noun). At the heart of any lawsuit or dispute lies the triad of available arguments. 

The Lawyer's Toolbox Contains:

1. LEGAL Arguments: Under this law, this statute, and/or this legal principle my client should win money, custody, the property or be found not guilty because the law is in his/her favor. This is generally based upon prior situations (history). Although lawyers like to use the fancy legal term, precedent. 

Before today it was decided thus so in this case the same result should stand. Courts like this, and have a special name for it, "stare decisis," It basically means let the decision stand, don't rock the boat, follow prior times and prior judges and prior courts. 

The full latin: “Stare decisis et non quieta movere” 

"to stand by decisions and not disturb the undisturbed."

So I first (as a lawyer) consider any Legal Arguments. What if I have NO legal arguments, then I try...

2. FACT Arguments: The facts may be different than what the witnesses say or the evidence is demonstrating. Different People can and will interpret or view the same event with different eyes. Was it a Red light or green light? Was he tired or was he intoxicated? Was the light broken? Was the tire defective or were the brake pads worn? 


Maybe the fact witnesses are lying or biased or mistaken. They may even be all three. 
Are all the facts consistent? Do things make sense? Do things add up? 

TESTS AND TESTING: They could be ACCURATE OR INACCURATE.

The results of any: blood test, breath test, DNA test, field sobriety tests are all disputable.

EXPERT WITNESSES are disputable.

The accident reconstructionist, the engineer, the mechanic, the doctor, the police, the trooper, the deputy were mistaken? Their opinion is always that, an opinion.

So secondly I consider any factual arguments.

3. I just plain argue. After the legal arguments, after the factual arguments, I only have my ability to argue. & I can argue about just about anything. 


At this point (stage) I may turn to the "equity" arguments (basically fairness), and point out a client’s age (young or old), sex (male or female), pregnancy, drug addiction, mental problems, necessity (not a true legal necessity in all probability), upbringing, family problems, childhood, bad luck, stupidity,,, when you have nothing left sometimes the craziest of arguments may ring a bell with someone. After 25 years of dealing with people in a professional capacity (and what makes them tick) not much surprises me. Anyway, You don't win if you don't try. 

Lawrence Newman, D.C., J.D.

607-229-5184

www.IthacaInjuryLawyer.com

Serious Mistakes Lead To Serious Consequences

As part of what I do day to day I read reports. Police reports. Reports and investigations of accidents and DWI's. What happened? How they occurred. Sometimes they (people) get it wrong. That's why it's so important to check things out first hand.

Visiting the scene, talking to witnesses, and looking at the damages. I was representing a man last year who had been airlifted from the scene. The police report had diagrams that just didn't make sense. I went to the scene, walked around, and then sat there for about an hour. It just then hit me, the whole thing was backwards in the police report. For whatever reason, maybe dyslexia, the cars and the roads were all juxtaposed. This viewpoint had painted my client as the "at fault" party, when in truth she was the "victim."

How often do we get things wrong?

You know the Ithaca City Courthouse is currently getting all new windows, re-vamped heat and A/C, and a face lift. Why? 15 years ago they put all the windows in backwards. I'm not just talking about a dozen windows, I'm talking like a 100 windows. Don't even ask about the ventilation system.

                                                            The Construction "Zone"

                                              Ithaca City Court, Clinton Street, Ithaca, NY

                                                           Lots and lots of windows!

Now imagine how that happened. Builders, planners, architects, inspectors, engineers, installers, etc.
all made a huge error. Nobody caught it, nobody saw it, and nobody challenged it? At what cost?
The moral to our story: With accident cases just like window installations everything should be checked out thoroughly. Nothing should ever be accepted at face value.

Dr. Lawrence A. Newman, D.C., J.D.
607-229-5184

www.IthacaInjuryLawyer.com

Legal Disputes: Subjectivity and Objectivity or the Wonders of Perception

I live in Ithaca, NY, "10 square miles surrounded by reality," as people like to joke. But is the joke really a joke? Ithaca is a strange place, strange because of the diverse range of viewpoints, strange because outside the box ideas are a constant source of conversation, amusement, and argument. As my kids say, "this place is really weird." Somebody is always protesting something or someone.

I Question, "What is real?"

No, I won't take you back to Philosophy 101 with the Descartes stuff but Real is what people think they perceive at any given moment.

I work in a world of disputes. DWI cases and car accident cases involve lots of opinions. Doctor opinions, law enforcement opinions, and witness opinions.

The doctors say you're ok, but other doctors say you need surgery. The police (the troopers, the deputies, the officers) said they smelled the strong odor of alcohol, that are was very unsteady, that I had slurred speech. Witnesses to events (like accidents) are often mistaken as well. Red light, green light, yellow light, speeding, I question their perceptions.

Using Ad-verbs and Adjectives

Did all that really happen? When people use adjectives and adverbs we start to get into troubling territory. Now we are truly making "value" judgments. Words like strong, weak, fast, slow, very, old, young,  high, and low. These are all based in comparisons. But what are they comparing anything to? Their own set of norms, their own set of beliefs, and their own set of experiences.

I believe that the problem lies in these filters. Unfortunately, we and they don't always see eye to eye. People say it would be great to have video of everything but even then I have shown juries tapes of police misconduct and still they have surprised me.

People will even deny what their eyes see plain as day to be consistent with their programming. They can't believe that their spouses, friends, and family did some heinous acts even with mounds of evidence in front of them. Scary but true, people are people, and they will follow their subjective instincts faster than any objective findings.

Dr. Lawrence Newman, D.C., J.D.
www.IthacaInjuryLawyer.com
607-229-5184

Ithaca Lawyer: Why You Can't Afford to Pretend it will just All go Away...

Well that's a mouthful but the truth is I get calls from people who do just that. They pretend that a criminal charge or a violation is just going to go away. They get stopped, charged, arrested, get notice to attend a Court hearing and then they... just blow it off. Some move, some just avoid the mail, and some change their phone number. Trust me when I tell you, "The government is never going to forget about you." As they say, "they got your number (s)."

Guess what? It never goes away until you deal with it. And it feels bad to most normal (healthy) people to have things hanging over their head. I meet up with enough unhealthy people to know. Because they have to walk and drive around with this dread. Knowing they are one car stop away from being arrested.

I had one client, got a NY DWI, left the state, started a new life, got married, had kids but he could never get a driver's license. Lived a perfectly clean life (paid his taxes, worked, and stayed out of trouble). So he drove with anxiety for 15 years until he decided to return to NYS, and deal with his charges. He told me he was willing to do jail time to get his life back in order. That's how much it sucks to have outstanding stuff.

Instead we negotiated a fine (BTW it doesn't always work out that way). He is now finally sleeping soundly, and driving his kids to school without the black cloud. He got his driver's license back, he is as they say a "re-formed" man.

Do not ever let something (violations or misdemeanors) go on and on without resolution. The cost to you, your family, and your emotional well being is far beyond money.

Dr. Lawrence (Larry) Newman, D.C., J.D.
Doctor of Chiropractic and Attorney at Law
Criminal Defense and Personal Injury
www.IthacaInjuryLawyer.com

607-229-5184

Avoca Wayland Speeding Lawyer Captures the Beauty of Campbell, NY

Kraft Foods in Campbell, NY
This is the "big" deal around here

I get around. Today I'll be down in Broome County for an appearance on an AUO 3rd (Aggravated Unlicensed Operation) in Union Town Court. My client is an out-of-towner (Florida) who was just passing through upstate and who never took care (forgot about) of a old NYS speeding ticket from three years ago. Driving on a license (privilege) that "you know or should have reason to know" is suspended  is a misdemeanor (a crime in New York).

On AUO's some Courts (Judges) allow me to appear on a client's behalf without them having to travel back up to New York. But last night I was out in Steuben County on an ADWI (Aggravated DWI). I made good time getting out there so I took some pictures, as I say, I captured Campbell.

The little Town of Campbell sits right off I-17/86. It's exit 41, and you can't miss it! Campbell is just alittle past Corning, NY. There is a Kraft Foods plant literally adjacent to the freeway. There are nice gas stations in both directions off the freeway here as well. This is a busy highway, lots of trucks use this road which cuts through the center of the state. Speed limit 65mph, except in work zones, 55mph or less (always check posted limits).


                                     

There is a State Trooper's Barracks, one exit up at EXIT 42 so watch out!

I-17 and I-86 are the same. 86 is probably more appropriate since it is an even number, and runs East to West.

Town Court in Campbell is on Monday nights, starts at around 5:00. Judge Douglas Horton is on the bench solo. The Court is punctual and organized. The other Judge (Judge Vernard Anderson) recently moved.

As Town Courthouses go, this is a nice one. Bright and airy, it has a 70's rustic feel to it. Perfect for the mountain setting. The Court staff are pleasant to work with as well.

                        Across the street from Town of Campbell Court is the Campbell Methodist Church.

Just a few blocks down from Court is this little country grocery. Don't see this in the big city.

Phone for Court: 607-527-8244

Fax for Court:    607-527-8218

The street and mailing address (are the same)   8529 Main Street, Campbell, NY 14821

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

http://www.ithacadwi.com

newman.lawrence@gmail.com

607-229-5184

Reviews of Larry Newman:

http://www.avvo.com/attorneys/14850-ny-lawrence-newman-530905.html

Chosen as a 2013 Rising Star in DWI/DUI in Upstate New York by Super Lawyers

Please avail yourself of my online materials which include over 500 blog posts, dozens of articles, and over 470 informative videos on my youtube channel.

The Value of Closure: The Real Costs of a Lawsuit/Dispute/Legal Action

I have practiced law for over 13 years, and have represented people on a variety of matters. One common denominator most people fail to understand is that # 1 any legal action is a dispute. Hence the Vs. (Versus) in between on all the papers. These all begin as Lawsuits. There are "parties" that desire something and/or wish to take something away from you.

It is YOU vs. an insurance company and/or an insured (personal injury action). At stake: Money

It is the government (in NYS, called "the People" of the State of NY) vs. YOU (criminal action). At stake: Life and liberty.

It is a governmental agency (ie. DMV, Board of Education) vs. YOU (administrative action). At stake: A license (permission)

It is a spouse (husband or wife) vs. spouse (Divorce). At stake: Money, property, and children.

It is a neighbor vs. neighbor (property dispute). At stake: Money, property rights.

It is a company vs. YOU (collection action). At stake: Money to enforce a contract.

Conflict does not feel good, in fact it feels bad to most people to be in confrontational positions. All lawsuits are eventually resolved. Resolution usually occurs via compromise. A smaller percentage of lawsuits wind up in a Court of law. This is where a jury or Judge will decide the final outcome.

Trials (criminal and civil) are stressful and expensive. The cost of trial is not just financial. There is an emotional cost to dragging all your stuff out into public. Trials are generally public affairs. Everything you thought was sacrosanct (sacred / secret/ personal/ private) is revealed. Inflammatory accusations and mudslinging are the norm.

So what is the "value" of closure?

1. Relief from Uncertainty

In criminal actions, a fast (timely) resolution can be relieving because the uncertainty of trial (an uncertain outcome) is removed. Most criminal cases are resolved with plea agreements. In the Federal system about 97% of the cases are resolved with pleas. In the state system it is almost 90% plus.

In civil cases with personal injury actions, most claims are resolved pre-trial. Rarely are people happy about the outcome from an injury case. Who wants to trade a body part for money? Who wants to sell their health? Can we ever put a price on a life? Is your child worth a million dollars? Sometimes the best result are two unhappy parties that can accept a final result they can live with.

2. Relief from Emotional and Mental Stress

Night after night I may toss and turn worrying over a case. Worrying that something I might do or say may make the difference in someone's final case outcome. The emotional and mental burden of being involved in a lawsuit of any kind is immeasurable. Imagine now it is YOUR case, YOU are on trial, YOUR life and liberty or future are on the line. Having anything hanging over your head is not pleasant. The value of putting things behind you and moving forward with your life is beyond money. Going to sleep free and clear of a problem brings a sense of comfort.

Always consider the VALUE of closure.

The value of your time (months to years), and closure have to be considered when YOU are involved in any legal action. YOUR attorney should bring practical, level (balanced), and holistic (looking at everything) thinking which is devoid of emotional baggage to show the "value" of compromise. Holding onto unrealistic expectations (grounded in fantasy) can be a death sentence to those that choose to ignore the rational (reality based) thought of legal counsel.

Dr. Lawrence A. Newman, D.C., Esq.
Chiropractor and Attorney at Law
607-229-5184
Practicing Criminal Defense and Personal Injury Law


 

Hot News in Cold Times: Ithaca Lawyer Gets a New Roof

My old house (home/office combo) downtown Ithaca at 504 North Aurora is getting a new roof. It had three layers of old shingles with little to no insulation beneath. This is a house built in 1889. The roof is at least 30 or 40 years old. So it was most definitely time.

Check this out, the tear down,,,

                                           Big Dumpster full of old shingle and roof

                                           The yard is a mess

We are using a great little company: Four Seasons Roofing. Aaron is my guy. I called several companies locally, and in Binghamton. Many never even returned my calls. Which makes me question, "Does anyone want to work?" He was the most straight forward, and direct. He showed up when he said he would, and has a great reputation. He and his guys walk on a steep angled roof like mine as if it was flat. Watching the guys work (they start in the dark at 630am) I was impressed with their work ethic. They definitely put in a "FULL" days work, no bs. They ate lunch on my porch, and went back to it.

Four Seasons Roofing: Roof Specialists
3203 Kellys Corners Road
Interlaken, NY

315-730-1584
888-615-5303

                                            Looking Good with new shingles:

Located only three short blocks from Tompkins County Courthouse, this whole area of Fall Creek is absolutely lovely, and a throwback to simpler times. Old homes like this one are an investment in the future of Ithaca. As they say, "they don't make 'em like they used to."

Good for another 30 years, 2041 here we come.

Dr. Lawrence A. Newman, D.C., Esq.
Chiropractor and Lawyer
Criminal Defense and Injury Law

607-229-5184

Ithaca Lawyer: New Books for a New Year

Well 2012 is right around the corner. I know this because it is getting cold here in Ithaca, NY. As much as I love this place the winters can be G-d awful cold. That whipping wind cold that goes deep into your bones and literally freezes your face. I had a friend visit me once in January (people gotta really like you to come to Ithaca in the winter or even at all) and I took him for a little city tour, half way through walking (about 20 minutes) he commented that I was crazy for living here. Then he said he was done being outside, too cold!!

But Winter is a great time in Ithaca to read. A time to re-group, and get new books. As much as I like digital media there are some books that do not come online (from Apple or Amazon). This is too bad because although I like the ease of my ipad, the new "Handling the DWI Case in New York" by Gerstenzang and Sills (the NYS DWI bible) is over 1600 pages and weighs in at,,, get this,,, almost 4 lbs. It is the sine quo non of all things NYS DWI. Pouring through it to note the new stuff (new cases, new interpretations of law) is fun and challenging.

My task this year is to again take what is complicated (NYS law, procedures, process), and disseminate to and for others. I believe we live in miraculous times. Computers, email, google, iphones, wow!! I am having fun. Incredible and magical. We all have the ability to share and communicate our experiences. As I tell my kids, use all your potential for these are truly magical times filled with opportunity.

Lawrence Newman, D.C., Esq.
Chiropractor and Lawyer
607-229-5184