Your buddy said he was just stepping into the store for a minute, perhaps for a candy bar or for a pack of cigarettes. Moments later, he runs out of the store and tells you to drive. Later, you find out your buddy went in and held up the store. Now you’re being arrested and charged as an accomplice in the crime. What just happened? Under New York Law, you can be prosecuted as an accomplice in several types of cases. You solicited or requested the crime be committed. To use this part of the statute against you the prosecution must prove that you either asked your friend to hold up the store or that you tried to pay your friend to do so. Encouraging others to commit crimes on your behalf is the same thing as picking up the gun and doing it yourself. This is true even if…
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False accusations of shoplifting aren’t all that uncommon. Many retailers believe that the overzealous pursuit of shoplifters is good normal business, and that people should be willing to endure false accusations if it means more shoplifters get caught. Some retailers even pursue monetary damages against shoppers who have not been convicted of any crime. Sadly, this means you might find yourself in trouble even if you didn’t take anything, or if you took something unintentionally, such as by accidentally leaving an item in the bottom of your cart when you check out. Often, you may find yourself in an encounter with the police even when store loss prevention personnel can’t find any merchandise on your person and can’t produce any evidence that you’ve taken anything. So what do you do? Avoid Incriminating Yourself You should exercise your right to remain silent even when you’re dealing with in-store officials. Just say,…
Read MorePrior to January 1, 2020, the state of New York put defendants at a severe disadvantage through so-called “blindfold” discovery laws. In the past, while defense could request crucial pieces of evidence from the prosecution (a process called discovery), prosecutors were free to hold on to much of that evidence until the very day of the trial. While defense lawyers could conduct their own investigations, defendants were always kept in the dark, unsure about the strength of the prosecution’s case. Prosecutors would often use this uncertainty to leverage defendants into plea bargains. This year, everything has changed with the introduction of “automatic discovery.” Understanding Automatic Discovery Under the new automatic discovery law, defense attorneys no longer need to make written demands to obtain and review evidence. Instead, the prosecution must allow the defendant to “discover, inspect, copy, photograph, and test” all of the prosecutor’s case-related materials. The new laws also…
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We’ve all been in this position: a friend is suffering from a terrible migraine or is in some other sort of pain. You were prescribed pain killers from the last time you had surgery but you never used them. Thinking you are being generous, you say, “Here, you can have one of these.” After all, you don’t plan to use them yourself. Why have them go to waste? What’s the big deal after all? Unfortunately, as soon as you make this move you are actually committing a crime. If your friend takes you up on it, your friend is committing a crime too. Sharing a prescription drug makes you a drug dealer under New York Law. You don’t have to get any money or goods to be committing a crime. The act of giving that painkiller to your friend puts you in violation of New York’s controlled substance law. The charge…
Read More“I plead the 5th.” You’ve heard it plenty of times on television. “You have the right to remain silent.” You’ve heard that too. You’ve even read about it on this blog, whenever we’ve advised you to invoke your right to remain silent while in custody. But do you really understand your 5th amendment protections? If you don’t, you could make a mistake which removes the protections you’re entitled to. Here are a few things you need to know whenever you deal with law enforcement or the court system. #1) The 5th Amendment only applies if you’re under compulsion to provide information to the government, and in cases where the information is indeed incriminating. This means it applies when you’re in police custody, or in a case where you’re being called to testify under oath as a witness, and such testimony could incriminate you for the crime at issue or related…
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Police station “Breathalyzer” test results are often central pieces of evidence in DWI cases. Yet mounting evidence suggests they are not reliable. New York has already ruled that portable breathalyzer test results aren’t admissible in court, but prosecutors continue to use the results of in-station testing. This is problematic, since implied consent laws make it impossible to refuse either the portable or the station test without consequences. Your first refusal can mean a 1-year license suspension and a $500 fine. While the consequences of refusing a breathalyzer test are certainly less disruptive than a DWI conviction, they nevertheless push many people into taking the test who otherwise would refuse to do so. Some of them do so feeling fully confident they’ll get a negative result. According to a recent article in The New York Times, the devices “generate skewed results with alarming frequency, even though they are marketed as precise…
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Confessions create a lot of problems for your defense lawyer. Many jurors believe that nobody who is innocent would ever confess to a crime they didn’t commit. That assumption is incorrect, of course. False confessions happen more often than you might think. In a 2013 amicus brief, the APA noted that scientific evidence demonstrates that standard police procedure is in itself a risk factor for eliciting false confessions. Research and an increasing roster of wrongfully convicted people has only strengthened their argument. So, if you’ve confessed, what can an experienced defense attorney do about it? Suppressing Confessions A confession is like any other piece of evidence. Under certain circumstances, a Motion to Suppress may ensure the jury never hears about the confession. The Motion to Suppress will be successful if the attorney can show that the confession was unlawful or involuntary. The courts classify several sorts of behavior as tending…
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On January 1, 2020, most people arrested for non-violent crimes won’t have to post bail. They will be released and ordered to appear at their trials. It’s no surprise that many prosecuting attorneys don’t like the new law. Many claim it will make it harder to deter crime. An ADA from Nassau County,Jed Painter, is trying to help other DAs find legal loopholes that would either keep nonviolent criminals in jail until trial, or force them to pay bail as usual. For example, he advised DAs to tell local police not to pick up felony defendants right away if they don’t show up to court. In his presentation he said, “Don’t be their Uber. You’re not going to get bail on them for that violation. Wait the 30 days, and then you’ve got your bail-jumping charge waiting for them.” He only advised picking them up right away if public safety…
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New York law does not make a distinction between legal drugs and illegal drugs in DUI charges. The charge is “driving under the influence.” The legality of what is influencing you does not make a difference. This is covered under New York Vehicle and Traffic Law § 1192.4: “No person shall operate a motor vehicle while the person’s ability to operate such a motor vehicle is impaired by the use of a drug.” This means any drug if that drug impairs you in any way. Nothing stops you from taking your prescriptions, of course. You just have to determine whether they render you capable of getting behind the wheel unimpaired. You should also pay close attention to the way substances interact. While under normal circumstances, you might be able to have one beer with dinner without going over the legal blood alcohol limit, the same drink could become deadly when…
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You’ve been stopped on your subway ride home from work, or perhaps while you are running some errands. An undercover officer, most likely dressed in plain clothes, has pulled you off the train car and holds you on the platform. Maybe immediately, or maybe after some time has passed, you’re told that you’re being arrested for touching someone inappropriately on the train – and then you are charged with Forcible Touching, a Class A Misdemeanor in New York. Not only is thispunishable by up to one year in jail, but you are now facing the possibility of having to register as a sex offender. Even if this is your first arrest, you’re taken to the police station, processed, and eventually seen by a judge in criminal court to face charges. It is even possible that a judge could set bail. If you post the bail, and you are released…
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Some people make their cases difficult to win long before they ever set eyes on their lawyer. It’s difficult to know what to do when you end up under arrest, especially if you’ve never had a brush with the criminal justice system before. If you can remember a few key principles, you can make it easier for your lawyer to achieve the best possible outcome. Stay Calm Whatever you do, don’t lose your cool. Tempted to yell and scream at the police? Stay polite instead. You don’t want video footage that makes you look belligerent surfacing in a courtroom. Sadly, once the police decide to arrest you, there’s nothing you can say and nothing you can do to stop them. All you can do is move through the process while focusing on making it out the other side. It’s natural to be angry if you know you’re innocent, but your…
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In most books and television shows, “self-defense” is sort of the ultimate “get out of jail free” card. It’s a useful device in stories, because it allows writers to send their heroes in with fists swinging without having to worry about pesky little things like legal consequences. In reality, things are a little tougher. In order for a self-defense plea (called “Justification” in New York) to work, it must meet several important criteria. Criteria for a Self-Defense Plea For an assault or murder to be “justified,” you must be able to show that you were: The subject of unlawful force, or that you had a reasonable fear you were about to be. In fear for your life. Defending someone else’s life. Not the initial aggressor. Used force only in proportion to the force being expended by the aggressor. Keep in mind that there is a…
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A recent story in Buzzfeed chronicled several alarming tales of individuals who ended up falsely accused of insurance fraud. What did they do to trigger suspicion against them? They simply filed a claim. And for whatever reason, the insurance company decided the claim appeared fraudulent. They turned it over to local law enforcement and local law enforcement made an arrest, on a shockingly small amount of evidence. It’s enough to make anyone afraid of filing a claim. If you can’t file a claim when you need to, then insurance is useless. And most of us have to purchase at least a small amount of insurance for legal reasons. This story certainly makes writing that monthly premium check sting just a little bit more! Criminal charges can cause a massive amount of damage in your life even if you successfully prove you’re innocent. Unfortunately, once the process starts,…
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Criminal mischief crimes are crimes against property. Depending on how much damage has been done, this crime may be treated either as a misdemeanor or as a felony. The damage must be intentional, and the type of property is not relevant, whether a building, a cell phone, a car, or something else. The damage itself can range from physically breaking an item to scratching it, to making graffiti. What are the degrees of criminal mischief? Criminal mischief in the 4th degree is the misdemeanor classification for doing less than $250 worth of damage, or for intentionally damaging an abandoned building. If you damage a car, or if the damage exceeds $250, then the crime becomes a Class E felony. If it is more than $1,500, it’s considered a Class D felony. If you use an explosive, the crime becomes a Class B felony. There are other classifications of this crime,…
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You’ve gotten into a physical altercation with another person and now you have been arrested for “assault”. The question many defendants often ask is whether they have been charged with misdemeanor assault or felony assault. It is an important distinction to understand, as the consequences for both can significantly impact your future. In New York, there are three degrees of assault by which a person can be criminally charged – Assault in the First Degree, Assault in the Second Degree, and Assault in the Third Degree. Each degree has its own individual elements that must be made out in order for you to be charged with that crime. And, while many may believe that the level of seriousness increases as the degree increases, it is actually the opposite. Assault in the Third Degree: Assault in the Third Degree is the least serious charge of the three levels. However, that is…
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If you’ve ever been tempted to call a police officer names, you’re hardly alone. After all, nobody likes getting a ticket, or being accused of a crime. But can insulting a police officer get you into trouble in and of itself? The answer is a solid, “maybe.” Insults are protected by the First Amendment. In fact, this is one of the functions of the First Amendment. It was written to make sure people couldn’t be imprisoned just for criticizing, insulting, or poking fun at authorities. This protection has been upheld by several Supreme Court cases, including: 1949, Terminello v. Chicago 1974, Lewis v. New Orleans 1987, Houston v. Hill All three of these cases deal with city ordinances restricting speech, though only the latter two, Lewis and Hill, deal specifically with yelling at, interrupting, or yelling obscenities at police officers. In 2013, the U.S.…
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Criminal cases do not go straight to trial. They go through a lengthy series of steps which must be completed before the courts can move on to the trial phase. Here’s what the process looks like after you’ve been arrested and charged. Note that you can opt to take a plea, if one is offered, at any point before the trial begins. Arraignment This is a hearing where the charges are formally read out to you before the court. You have the option at this stage to plead guilty or not guilty. If you plead guilty, the process halts right here. The judge can, in some circumstances, move straight to sentencing. If you plead not guilty, the process continues to the next step. The next step happens in the same court proceeding, where the judge moves on to consider bail. The judge decides whether to set bail or not, and…
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Sometimes the police can seem like they’re all-powerful and above reproach. But they are governed by rules and laws like anyone else. And if they break those rules or laws, and are caught, it can have an impact on the strength of the case against you. You may even be entitled to compensation as a result. So it’s important to know what the police can and can’t do. See also: Can You Really Get My Criminal Case Dismissed? The police may not use excessive force. The police are only allowed to use as much force as it takes to resolve the situation. But they do get broad interpretation on what that means. When in doubt, they usually get a big pass if they can make a case their lives were in danger. This is why it is very important to stay calm when dealing with police officers. Don’t struggle, raise…
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So you have been arrested for Unlawful Surveillance in New York City. You have appeared before a judge, and, because it was your first contact with the justice system, the judge agreed to release you on your own recognizance. You think to yourself: How serious can this be? After all, you have never been in trouble before and the crime you are accused of does not involve any violence. And then you go on the internet and you google: Unlawful Surveillance in New York City. And you realize your pending case is much more serious than you thought – and, as an attorney practicing for over 25 years in New York, I can tell you that you are right. Unlawful Surveillance is a very serious crime and if not handled properly, it can land you in prison, can leave you with a permanent felony criminal record, and it…
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The best criminal case is often the one that never goes to trial. One of the first things your defense attorney should look at is whether there is a chance the case may be dismissed. It’s not possible in all cases. But it can happen. Here are the different grounds an attorney can use to get charges dropped. Establishing an Alibi Everyone’s heard of alibis; they’re a popular staple in fiction. If the crime was committed in Queens at 3 AM and you were in Jersey at that time, then there’s no way you could be the culprit. A defendant will need solid evidence of the alibi. Some of this evidence could include: Time cards, indicating you were at work during the incident. Receipts, indicating you were at an ATM, restaurant, or store on a certain date and time. Eye witnesses who can corroborate that you were indeed where you…
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