New York Criminal Lawyers Blog

As a New York criminal defense lawyer who has handled many driving while intoxicated cases (DWI), Michael Joseph has seen numerous cases involving refusals to take the chemical test. New York has an implied consent law, which means that anyone who drives in the State of New York consents to take a chemical test to determine whether they are driving while intoxicated or under the influence of drugs.

If you refuse to take the test after being arrested for driving while intoxicated in New York, at your arraignment, your license will be suspended and you will be given a notice of a D.M.V. hearing to determine whether you knowingly refused to take a chemical test.

If the officer fails to attend the refusal hearing, your license will be reinstated and the hearing will be postponed.

Michael Joseph, a New York driving while intoxicated lawyer has won numerous refusal hearings. There are a number of criteria which must be established at the refusal hearing. For example, the police must prove that there was probable cause for the stop, that they read the refusal warnings, that you continued to refuse to take the test after the warnings were read. They must also establish that the refusal occurred within two hours of the stop.

If the police officer fails to establish any of these criteria, the hearing will be closed. If the officer establishes all of the criteria, your license will be revoked for one year.

In New York, the fact that you refused to take the examination can also be used against you in a trial for driving while intoxicated as evidence of consciousness of guilt.

If you are charged with driving while intoxicated in New York, contact the New York driving while intoxicated (DWI) lawyers.

Brought to you by the Law Office of Michael H. Joseph PLLC

The Port Chester Criminal Court is located at

350 North Main Street
Port Chester, N.Y.10573

The Port Chester criminal court handles traffic offenses, misdemeanor criminal charges and pre-indictment felony charges. For felony cases, if there is an indictment, the case will be transferred from the Port Chester criminal court to the Westchester Superior Court in White Plains.

The Port Chester Criminal Court usually hears criminal cases on Mondays and Thursdays. Court starts at 9:30 a.m. Non-criminal traffic offenses are usually heard at the Court's night session.

Michael Joseph is a Westchester criminal defense lawyer who routinely handles criminal cases in Westchester County and the Port Chester criminal court. If you have been arrested and are facing a criminal charge in Port Chester you will need a criminal defense attorney.

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The Law Office of Michael H. Joseph PLLC
Experienced White Plains Criminal Defense Attorneys

THIS IS NOT AN OFFICIAL PAGE OF THE CITY OF WHITE PLAINS AND IS INTENDED TO PROVIDE GENERAL INFORMATION ONLY

For a specific question, contact a White Plains Criminal Defense Attorney.

The White Plains City Criminal Court handles all misdemeanor level criminal cases based on arrests for crimes that occur within the City of White Plains. The White Plains Criminal Court also handles the pre-indictment proceedings for all felonies that occur in White Plains.

The Contact Information for the White Plains Criminal Court is as follows:

White Plains City Court
77 Lexington Avenue
White Plains, N.Y. 10601
(914) 824-5675

Frequently Asked Questions:

1. When do I have to be there?

The Court is open Monday through Friday and usually begins around 9:30 a.m.

2. What is a DAT
Many low level criminal cases in White Plains begin with a desk appearance ticket (DAT). This is a ticket requiring you to appear before the White Plains Criminal Court for an arraignment of a criminal charge.

3. What is arraignment?

Arraignment is the first time a criminal case is on. Usually you will enter a formal plea. For most criminal defendants, this will be a plea of not guilty.

4. What happens after arraignment?
The case will usually be scheduled for a conference date to determine whether the matter can be resolved by plea bargain or whether a trial is required.

5. Which Courtroom do I go to?
If your criminal case is on for an arraignment (first appearance) or a conference, you will be in Courtroom A. If your case is on for trial, your case will be in Courtroom B.

Michael Joseph, an attorney based in White Plains offers free consultation and can be contacted during the evening and on weekends.

Michael Joseph won an important decision concerning the availability of grand jury minutes to a Plaintiff in a malicious prosecution action.

To establish a claim for malicious prosecution, a plaintiffs must show that (1)the defendant initiated a prosecution against plaintiffs, (2) the matter terminated in plaintiffs' favor, (3) there was no probable cause for the criminal proceeding and (4) the proceeding was motivated by actual malice.

Where the Plaintiff has been indicted, the defendants always claim that the Plaintiff is unable to demonstrate a lack of probable cause because an indictment creates a presumption of probable cause. However, where an indictment was the product of fraud, perjury, and the suppression of evidence a Plaintiff sufficiently rebuts any presumption of probable cause

Therefore, to prove his case, malicous prosecution Plaintiffs must establish what occurred in the grand jury. This poses a problem because the transcripts are automatically sealed.

In a ground breaking decision in the case of People v. Manganiello, Michael Joseph, convinced the Court to unseal the grand jury minutes because the Plaintiff had a compelling need for disclosure of the grand jury minutes to rebut the presumption of probable cause associated with a grand jury indictment. While C.P.L. § 190.25 states that grand jury proceedings are secret, the secrecy of grand jury minutes is not absolute. People v. Di Napoli, 27 N.Y.2d 229. An interested party may bring an ex parte application for disclosure of grand jury minutes. See Aswad v. Hynes, 80 A.D.2d 382 (N.Y.A.D. 1 Dep't 1991).While C.P.L. § 190.25 states that grand jury proceedings are secret, the secrecy of grand jury minutes is not absolute. People v. Di Napoli, 27 N.Y.2d 229. An interested party may bring an ex parte application for disclosure of grand jury minutes. See Aswad v. Hynes, 80 A.D.2d 382 (N.Y.A.D. 1 Dep't 1991).

Grand jury minutes may be provided to a civil litigant where there is a compelling and particularized need for access. Ruggiero v. Fahey, 103 A.D.2d 65 (N.Y.A.D. 2 Dep't 1984); Richburg v Morgenthau 184 App Div 2d 316 ( N.Y.A.D. 1 Dep't 1992). In the Manganiello case, the Court held that allegations that certain witnesses committed perjury before the grand jury were sufficient to establish a compelling need for access.

As a Westchester criminal defense attorney, Michael Joseph has handled the criminal defense of cases in the Courts of Yonkers, White Plains, New Rochelle, Greenburgh, Elmsford, Mount Kisco, Mount Vernon, Rye, Sleepy Hollow and Irvington.

As a Westchester criminal defense lawyer, Michael Joseph has extensive experience handling assault cases. The basic level assault charge, which is a misdemeanor is Penal Law § 120.00 [1] which states that a person is guilty of assault in the third degree when he intentionally causes a physical injury to another person. As such, it is essential that a complaining witness have sustained an injury to establish a prima facie case of assault. Often, in Westchester, criminal charges for assault are brought in the Courts of Yonkers, White Plains, New Rochelle, Greenburgh, Elmsford, Mount Kisco, Rye, Sleepy Hollow and Irvington for cases that do not qualify as an assault.

For a case to qualify as an assault, there must be a "physical injury", which is defined as impairment of "physical condition or substantial pain." In any New York assault case, the complaining witness must supply a supporting deposition which alleges impairment, or "substantial pain". Impairment of physical condition is defined as "a loss, loss of use, or derangement of any body part, organ system, or organ function. Guides to the Evaluation of Permanent Impairment (5th ed, 2000). A mere cursory statement that the complaintant suffered "substantial pain", is insufficient to support an allegation for assault in the third degree. "Substantial pain" has been strictly construed by the criminal courts and if an objective level of injury is not demonstrated, the charges must be dismissed as a matter of law.

The criminal courts have routinely held that minor injuries are insufficient to constitute an assault. Minor superficial soft tissue injuries are not sufficient to establish an injury sufficient to support a charge of assault in the third degree. In re Jose B., 47 A.D.3d 461 ( N.Y.A.D. 1 Dep't. 2008). In People v Jimenez, 55 N.Y.2d 895 (1982), the court dismissed a complaint of assault where the complaining witness sustained only a one centimeter cut above the lip. In People v. Ruttenbur, 112 A.D.2d 13 (1985), superficial scratches were held insufficient to sustain a charge of assault in the third degree. In People v. Contreras, 108 A.D.2d 627 (N.Y.A.D. 1 Dep't 1985), the court held that a small abrasion requiring one stitch was insufficient to satisfy the injury element of assault in the third degree. In Baksh, the Court reversed a conviction for lack of an injury, where, the victim had only cuts with no stitches. People v. Baksh, 43 A.D.3d 1072 (N.Y.A.D. 2 Dep't 2007). Here, the alleged injury was less serious than the injury that the Court found to be insufficient in Contreras, where the complaining witness required stitches. Here, there were no stitches, as such, the laceration is insufficient to establish an injury which caused substantial pain.

The claim that the complaintent suffered a bruise and swelling is also insufficient to support a charge of assault. A minor soft tissue trauma is insufficient to support an accusation of assault in the third degree. In re Jose B., 47 A.D.3d 461 ( N.Y.A.D. 1 Dep't. 2008). A mere allegation that a complainant experienced swelling is insufficient to establish an injury. People v. Richmond, 36 A.D.3d 721 (N.Y.A.D. 2 Dep't. 2007). In People v. Oquendo, 134 A.D.2d 203 (N.Y.A.D. 1 Dep't 1987), the court held that bruises from punches without evidence of the blows' after affects are insufficient to support a conviction of assault.

Likewise, the complaining witness has failed to establish that she sustained an injury capable of causing pain that rose to the level of that required by the statute. Nor has she made a sufficient factual allegation of substantial pain. Where the complaining witness states she had severe pain, this is merely conclusory and unsupported by any facts. Where there is insufficient evidence from which a jury could infer that he suffered substantial pain, the charges should be dismissed.

Where the complaining witness fails to state the duration of the pain or that pain killing medication was necessary, they have failed to establish an injury. People v. Richmond, 36 A.D.3d 721 (N.Y.A.D. 2 Dep't. 2007). A mere allegation that a complainant experienced swelling is insufficient to establish an injury. In Matter of Philip A. 49 N.Y. 2d 198, 200 (1980), the court held that a red mark and some degree of pain from a punch in the face does not constitute "substantial pain". Similarly, the court in People v. McDowell, 28 N.Y.2d 373 (1971) held that a blackened eye without any suggestion of pain is insufficient to establish "physical injury". Likewise a mere allegation that a complaining witness had pain was insufficient where they treated their aches and pain with ice, Tylenol, and iodine, and stayed home from work for three or four days. People v. Briggs, 285 A.D.2d 651, (N.Y.A.D. 2 Dep't. 2001).

If you are facing a criminal charge of assault in the Courts of Yonkers, White Plains, New Rochelle, Greenburgh, Elmsford, Mount Kisco, Rye, Sleepy Hollow and Irvington, call the Westchester criminal defense attorney for a free consultation.

As a New York criminal defense attorney, I have defended numerous drug and weapons cases in New York (including Manhattan, Bronx and Queens) and Westchester ( White Plains, Yonkers and New Rochelle). As a New York criminal defense lawyer, defending any drug or weapons case, almost always involves search and seizure issues.

The New York Supreme Court, First Appellate Department recently pronounced a decision which continued to strengthen street encounters between the police and criminal suspects. In People v. Reyes, the Court overturned the Manhattan Criminal Court's decision which denied a motion to suppress evidence.

The Appellate Court, held that the defendant's motion to suppress should have been granted because the officers lacked valid grounds to forcibly detain defendant on the street and then pursued him when he fled. The Court noted that in evaluating the propriety of the police action in attempting to seize a suspected criminal, the Court must consider whether it was justified at its inception and whether it was reasonably related to the circumstances leading to the encounter.

The Courts follow a four-level test for evaluating illegal search and seizure issues. These apply when the police find illegal contraband, including weapons and drugs in a street encounter that the police initiate. Level one permits a police officer to request information from an individual and merely requires that the request be supported by an objective, credible reason, not necessarily indicative of criminality; level two-the common-law right of inquiry-permits a somewhat greater intrusion, short of a forcible seizure, and requires a founded suspicion that criminal activity is afoot; level three, authorizing an officer to forcibly stop and detain an individual, requires a reasonable suspicion that the particular individual was involved in a felony or misdemeanor.

In Reyes, the Court recognized that flight alone, even if accompanied with equivocal circumstances that would justify a police request for information, does not establish reasonable suspicion of criminality and is not sufficient to justify pursuit, although it may give rise to reasonable suspicion if combined with other specific circumstances indicating the suspect's possible engagement in criminal activity.

Any New York Criminal Defense Attorney, who handles drug cases and weapons cases arising from street encounters in New York and Westchester, must carefully analyze whether there was reasonable suspicion that the accused had committed a misdemeanor or felony at the initial inception of the police encounter.

Michael Joseph is a criminal defense attorney with offices in New York (Manhattan) and Westchester (White Plains).

As a New York criminal defense lawyer, I have handled numerous felony cases which went into the grand jury. The decision on whether to put forward a case before the grand jury or preserve your case for trial is always a sensitive decision. Numerous factors must be considered.

As a Westchester criminal defense lawyer, I have won Assault cases and gun cases in the grand jury. The situation where clients tend to testify before the grand jury is when the client has a strong defense such as actual innocence, justification, self defense or alibi.

Usually, when clients elect to testify before a grand jury, there is usually some time pressure. For example, when clients are incarcerated and unable to make bail, the factors which weigh in favor of testifying before the grand jury outweight the risks of waiting for trial. Of course, when a client is fighting a charge while out on bail, this time pressure is not present.

The drawback in putting a client before the grand jury is that the attorney is not allowed to speak, object or otherwise participated in the proceeding except for advising the client. The Prosecutors will often do things which are improper, and ask improper questions which are aimed at unfairly prejudicing the client. Unfortunately, there is nothing the attorney can do during the proceeding. However, the Criminal Procedural law also gives a New York criminal lawyer, the right to move to dismiss the indictment if the proceeding was not done fairly.

While the lawyer cannot participate in the actual proceeding, the Criminal Procedure Law in New York, does give the defendant the right to testify and present evidence. That means, if there are witnesses that support the defendants' position, the defense can proffer them and actual evidence can be proffered by the witnesses in a grand jury. Early investigation to discover favorable witnesses and evidence is essential to successful grand jury presentation and practice.

As a New York criminal defense attorney, Michael Joseph has handled numerous drug cases. Many times where drugs are found in a vehicle or an apartment, the police may charge everyone present.

To establish constructive possession, the State must prove that the defendant knowingly exercised "dominion and control" over the property by a sufficient level of control over the area in which the contraband was found.Constructive possession may also can be demonstrated by a defendant's presence under a particular set of circumstances" from which a jury may infer possession.

Recently the First Department upheld a conviction where the Defendant was convicted of criminal possession of a controlled substance in the second degree after crack cocaine was found in a hidden compartment of a minivan that was driven, but not owned, by defendant. The Court held that the State proved possession because the defendant had actual possession of the vehicle and keys, and that he was the sole occupant and driver.

If you are facing a drug charge in New York or Westchester, you need an experienced New York criminal defense lawyer with experience in defending drug charges.

As a Westchester criminal defense lawyer who handles yonkers criminal cases, I have noticed that some of the local Westchester criminal courts, especially Yonkers have been refusing to set bail on felony cases.

The result is that many people who are arrested on felony charges have to sit in jail until their lawyers can get them produced in the Westchester Superior Court. Many criminal defense lawyers who don't regularly practice in Westchester have been unfamiliar with these new procedures.

On average it takes a day or two to have someone who is in remand status, (incarcerated without bail) on a felony transferred to the Westchester Superior Court. These cases can be transferred by making a phone call to the criminal clerk, who upon an oral request will put the case on for a bail hearing before the Westchester Superior Court.

It is imperative that Westchester criminal attorneys, call the Superior Court the same day if their clients are held without bail in Yonkers or another local criminal court. Otherwise the clients will spend time in jail for no reason.

All New York criminal lawyers must be thoroughly familiar with the New York Criminal Procedural Law provisions concerning when a defendant facing New York criminal charges may be released after bail has been set.

With a misdemeanor charge, under Criminal Procedural Law 170.70, a person who has been incarcerated because they are unable to make bail for more than five days, not including Sunday, must be released if an information has not been filed. In simple terms, that means that there must be sworn allegations based upon personal knowledge filed with the Court that meets all of the elements of the crime charged.

Common examples of defects which require a defendant to be released are the lack of a lab report in a drug case, the lack of a supporting deposition in an assault or criminal mischief case. Another example in a petit larceny or shoplifting case is the failure of the District Attorney to file an affidavit of the owner of the property.

The only exceptions where a defendant may be held in custody is where the defendant has consented or waived the defects or if the District Attorney can establish that there was good cause why the defendant should not be released. Under New York law, good cause must include a compelling fact or circumstance which precluded the District Attorney from establishing all of the elements of the offense.

For New York Criminal Defense Lawyers, insistence on speedy trial rights are a powerful defense strategy for weeding out baseless claims. If witnesses are shaky, they often will not appear for the grand jury which prevents the People from indicting an accused. We have aggressively pursued our client's speedy trial rights which has resulted in numerous dismissals in numerous questionable assault, gang assault and sexual assault cases in New York City and Westchester.

Criminal Procedural Law § 210.20(g) states in pertinent part that after arraignment upon an indictment, the superior court may, upon motion of the defendant, dismiss such indictment or any count thereof upon the ground that the defendant has been denied the right to a speedy trial. Criminal Procedural Law § 30.30(1)(a) states in pertinent part that a motion made pursuant to paragraph (g) of subdivision one of section 210.20 must be granted where the people are not ready for trial within six months of the commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony.

The six month period is generally determined by computing the time elapsed between the filing of the first accusatory instrument and the People's declaration of readiness, subtracting any periods of delay that are excludable under the terms of the statute and then adding to the result any postreadiness periods of delay that are actually attributable to the People and are ineligible for an exclusion. People v. Cortez, 80 NY2d 201, 208, (1992).

Unless the defendant has consented, the preindictment period is wholly under the control of the People and there is nothing defendant can do to prevent or delay presentment of the case to the grand jury. People v. McCaffery, 78 A.D.2d 1003, 433 N.Y.S.2d 909 (N.Y.A.D. 4 Dep't 1980). Therefore, unless a defendant consents to waive the speedy trial time, the entire pre-indicment time is chargeable to the People.Unlike the postreadiness delays, the absence of a valid indictment during this period is a circumstance that directly impaired their ability to proceed to trial. People v. Cortes, 80 N.Y.2d 201, 211 (1992). Once the defendant has made a showing of an unexcused delay greater than six months, the burden then shifts to the People to prove that any periods of that time should be excluded. People v. McCaffery, 78 A.D.2d 1003, 433 N.Y.S.2d 909 (N.Y.A.D. 4 Dep't 1980).

The District Attorneys will sometimes try to have this time excluded by claiming that the uncooperative witnesses were unavailable. However, the Courts have narrowly construed exceptions which permit the People to exclude time under CPL 30.30 because the People's obligation to exercise due diligence to procure a witness before he/she becomes unavailable is strictly construed. People v. Mims, 587 N.Y.S.2d 536 (N.Y.Sup.1992).

Also, as a pre-requisite for the People to exclude time under C.P.L. § 30.30, it must be shown that the People have "exercised due diligence "to obtain " the presence of the witness. See CPL § 30.30(4)(g). Jurisprudence has recognized that in order to demonstrate due diligence, the People must undertake "credible, vigorous activity" to make the witness available. People v. Figaro, 245 A.D.2d 300 (N.Y.A.D. 2 Dept.1997); People v. Salazar, 688 N.Y.S.2d 401 (N.Y.Sup.,1999).

The mere unavailability of a witness, without more does not exclude the time from running against the People. People v. Barenzano, 875 N.Y.S.2d 822 ( N.Y.City Crim.Ct.,2008).There are no exceptional circumstances where the witnesses avoid cooperating for their own reasons. People v. Salazar, 688 N.Y.S.2d 401 (N.Y.Sup. 1999).

Where a witness resides out of State, the Courts have found no exceptional circumstances where the People fail to make efforts to secure a material witness order or otherwise to secure the witness' attendance. People v. Salazar, 688 N.Y.S.2d 401 (N.Y.Sup. 1999). Likewise in People v. Meyers, 114 A.D.2d 861 N.Y.A.D. 2 Dept.,1985), the Court held that the People did not demonstrate due diligence or exceptional circumstances where the witnesses were unwilling to testify before the Grand Jury because the People made no attempt to make the recalcitrant witnesses available. An example of taking definitive steps to secure the attendance of a reluctant witness was found in People v. Khan, 146 A.D.2d 806 (N.Y.A.D. 2 Dep't 1989), where upon learning that the out of state witness was reluctant to testify, the People immediately prepared a material witness order, had it signed and forwarded it to the Florida State Attorney's Office.

As a White Plains Criminal Defense Lawyer I handle a fair amount of sex crimes in Westchester County. To successfully prosecute a sex crime, corroboration is required and normally an accusation without more is not sufficient to convict.

The Westchester County Police and some the local Police have become very aggressive in getting confessions. We have observed that the police are doing interviews in which they suggest that certain answers will help our clients, then they turn on a recording device. The initial promises and sometimes threats and practice sessions are not on the recording. We recently found one instance where the tapes themselves were edited and were missing information.

If you are arrested and facing sexual assault charges based on a taped confession in Westchester, it is advisable to have the tapes reviewed by a forensic professional as you may find discontinuities which will support a claim that the confession was obtained improperly.

We have also argued that when these issues arise, the defense has a right to the technical information concerning the making of the recording and the mechanics of the recording system. These new police tactics require Westchester criminal defense attorneys to be especially vigilant in handling cases where there was a taped statement.

Michael Joseph is a New York and Westchester criminal defense attorney who regularly defends sex cases in White Plains and New York City.

Defendants in the New York and Westchester Criminal Courts who had children in their vehicles while arrested for Driving While Intoxicated (DWI) or Driving Under the Influence (DUI) are being charged with endangering the welfare of a child. Our Westchester DWI Lawyers have aggressively fought these charges.

A recent line of cases in the New York Courts have held that merely having a child in a car when the operator has a blood alcohol level (BAC) above the legal limit (DUI) is not sufficient to establish endangering the welfare of a child.

Instead there must be actual, not theoretical or possible harm.

This is especially important because endangering the welfare of the child has serious collateral damage. For example it can trigger the involvement of social services and possibly a neglect proceeding.

Also if you are not a citizen, a conviction of endangering the welfare of a child can have negative consequences with immigration, possibly leading to deportation. It is important for lawyers to aggressively fight convictions of endangering the welfare of a child.

In New York, where a criminal charge for a felony results in a plea of guilty with a indeterminate sentence there is a required sentence of post release supervision (PRS). Many people who took plea bargains, were not advised of this and then served jail time for violation of the post release supervision, in addition to their original sentence. If you are charged with violating the terms of post release supervision, your New York Criminal Defense lawyer can make a motion to vacate the PRS part of the sentence.

The New York Court of Appeals recently decided that if a sentencing judge did not pronounce the sentence of post release supervision as part of the sentence, the New York State Department of Corrections cannot administratively impose it. In many of these cases,the Department of Corrections added the sentence, even though it was not pronounced as part of the original sentence.

Therefore a lawyer for the accused can make a motion to have the PRS vacated.

As a New York and White Plains Criminal Defense Lawyer, we see alot of cases involving petit larceny charges arising out of shoplifting. For a first time offender, we have had tremendous success in getting shoplifting charges dramatically reduced and in many cases resolved with adjournments in contemplation of dismissal.

However, we are starting to see a new trend where major department stores are writing threatening letters to our clients. They claim to be entitled to outrageous amounts of money because a person shop lifted in their store. This is probably due to the bad economy and stores looking to make money any way they can.

These stores are justifying their demands on the General Obligations Law 11-105. This law states as follows:

An adult or emancipated minor who commits larceny against the property of a mercantile establishment shall be civilly liable to the operator of such establishment in an amount consisting of:

(a) the retail price of the merchandise if not recovered in merchantable condition up to an amount not to exceed fifteen hundred dollars; plus
(b) a penalty not to exceed the greater of five times the retail price of the merchandise or seventy-five dollars; provided, however, that in no event shall such penalty exceed five hundred dollars.

The statute also makes a parent liable for the acts of a child.

The important thing to remember is this only gives the store the right to sue if the property is not recovered. In most cases, the property is recovered. Also, usually it is not worth it for the store to pay the court costs involved and spend time litigating, so they just send threatening letters and hope to scare the persons accused of shoplifting. This is a growing trend and we have seen stores in White Plains, Queens, Manhattan, Port Chester and the Bronx sending these letters. Our advise generally is to ignore them until you actually get Court papers served upon you. Otherwise the stores are usually bluffing.