New York Criminal Lawyers Blog

As a New York criminal defense lawyer who also practices criminal defense in Westchester towns with high immigrant populations such as White Plains, Port Chester, New Rochelle, Ossining and Mamaroneck, I have defended numerous undocumented aliens/immigrant who are charged with criminal offenses. One of the most common criminal charges for which undocumented immigrants are arrested is false or forged documents.

The more common charges are violations of New York State Penal Law, sections 170.25 (criminal possession of a forged instrument, 2nd degree) (Class D Felony) and 175.35 (Offering a false instrument for filing, 1st degree) (Class E felony).

New York criminal defense attorneys need to be familiar with the immigration consequences of these charges when discussing plea bargains. Each of these crimes probably constitute a "crime of moral turpitude," ("CIMT") as that term is used in the Immigration and Nationality Act ("INA"),inasmuch as each contains as an element, an intent to defraud or deceive. Conviction of a crime of moral turpitude or admission by the alien of the commission of acts constituting the essential elements of such a crime, or an attempt of conspiracy to commit such a crime, renders an alien inadmissible, absent an applicable exception or waiver.

The "petty offense" exception to the crime of moral turpitude ground of inadmissibiility would not be available for a conviction under either section charged, even if the alien was otherwise eligible, as both crimes are classified as felonies.

The following list of plea bargain alternatives, and their immigration consequences, are set forth below in descending order of desirability:

1. adjournment in contemplation of dismissal-should avoid immigration problems

2. Plea to a violation (e.g. disorderly conduct,Penal Law, Section 220.40)-should avoid immigration problems.

3. Plea to offering a false instrument for filing, 2nd degree (Class A misdemeanor) (Penal Law, Section 175.30) is arguably not Crime Involving Moral Turpitude, as intent to defraud is not an element of the offense. Even if it is found to constitute Crime Involving Moral Turpitude, the petty offense exception available, if client has no other Crime Involving Moral Turpitudeat time applies for admission and a prison sentence in excess of six months is not imposed.

4.. Plea to criminal possession of a forged instrument, 3d degree (Class A misdemeanor)(Penal Law, Section 170.20)-constitutes CIMT. However, as crime is not punishable by term of imprisonment of more than one year (i.e. not felony), the petty offense exception to CIMT as ground of inadmissiblity should be available, provided that the client has no other CIMT at the time he applies for admission and a prison sentence of more than six months is not imposed re. this offense.

5. plea to attempted offering a false instrument for filing, 1st degree (Class A misd.) is arguably not Crime Involving Moral Turpitude, as intent to defraud is not an element of the offense. Even if it is found to constitute Crime Involving Moral Turpitude, the petty offense exception available, if client has no other Crime Involving Moral Turpitudeat time applies for admission and a prison sentence in excess of six months is not imposed.

It must always be remembered that ncarceration for any length of time will increase the chances that the ICE (Immigration Customs Enforcment) and the Department of Homeland Security will become aware of the alien's situation, and will institute immigration court proceedings for deportation against him.

New York criminal defense attorneys should always analyze and explain to the client the potential immigration consequences of a plea and if possible craft the plea to avoid immigration consequences.

A new an innovative tactic among New York criminal defense attorneys who defend driving while intoxicated charges is to challenge the breathilizer records based upon the Sixth Amendment's right of confrontation. A recent decision gives New York criminal defense lawyers a new weapon in the fight against driving while intoxicated (DWI) charges.

There is a conflict between the Sixth Amendment which gives the accused the right to confront the witnesses against him and New York's business record rule which allows records into evidence based upon a certification. Typcially in a New York driving while intoxicated (DWI) trial, the prosecutors will just offer the breathilizer records into evidence based on the certificate, without calling the operator. This deprives the criminal defense lawyer from being able to cross examine the operator and thereby challenge the reliability of the breathilizer's reading.

In People v. Carreira, 893 N.Y.S.2d 844 (N.Y.City Ct.,2010), the Court held that in DWI cases both the simulator solution and calibration records are testimonial for Sixth Amendment purposes and therefore inadmissable unless the New York prosecutor presented live testimony from the person who prepared them. The court went on to note that the business records exception does not appy where the regularly conducted business activity is the production of evidence for use at trial.

The Court also stated that the Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that "[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics.

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. In Westchester, these hearings are held in at the D.M.V. in Yonkers.

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.

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