Articles Posted in New York Criminal Procedure

New York, unlike many other states is especially unforgiving and does not have a law that allows expungment of a criminal conviction. Usually, absent unusual circumstances a person who has been convicted of a crime in New York, will have the conviction for life. Rarely, sympathetic judges will vacate a conviction under New York’s interest of justice standard, but it is discretionary and often arbitrarily applied. Recently a federal court in New York vacated a conviction because the conviction, which was for a minor crime was preventing the woman from gaining employment.

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A fraud conviction that prevented a local woman from employment for 13 years has recently been expunged by Judge John Gleeson. The woman’s criminal record prevented her from working, paying taxes, and caring for her family for 13 years. It forced her to rely on public assistance although she has the ability and desire to work and support herself and her family. Judge Gleeson decided it would better serve public interest if the woman was a contributing member of society, rather than an able body citizen depending on government assistance.

The woman, an immigrant from Haiti has four children and was making 783 dollars a month, which was less than the rent in her Queens apartment at time of the crime. She became involved with a car insurance scam in which she faked an injury and filed a civil suit resulting in her receiving $2,500. Ms. Doe knew that filing a false lawsuit was a crime, what she didn’t know was that the punishment she would receive if caught would wreck her chances of finding employment for over a decade.

After her conviction, the woman found herself in a rough situation familiar to people who have convictions on their record. Each time she would seek out employment she would be turned down after background checks uncovered her involvement with fraud. For 13 years she continued to apply for work, and get denied because of her criminal history.
Recently she was able to persuade Judge Gleeson to expunge the charges which will now allow her to seek out work, and support her family. Expungement is very rare in the State of New York and is reserved for extreme cases. The Eastern District U.S. Attorney’s Office opposed the application for expungement because they felt her difficulties weren’t extreme enough to merit that action. Judge Gleeson disagreed he believed Doe’s circumstances actually were extreme. Furthermore, he felt that the time from her offense and her lack of re arrest weighed in her favor.

Recently there have been several attempts made at the state level to reform laws on collateral consequences that do not increase public safety. There is currently a proposal by Chief Judge Jonathan Lippman to allow the sealing of criminal records for non-violent felons who avoid re-arrest for 10 years and have no prior felony convictions. People who commit non-violent crimes shouldn’t be barred from ever finding employment again, especially in areas not relating to the crime they committed. To take away ones capability to provide for themselves legally is equivalent to forcing them into more illegal activity as means of survival.

Judge Gleeson noted that while crimes are considered unforgivable by prosecutors, others relating to more prestigious jobs were taken lightly. Thus the application of the law is unpredictable an sporadic. For instance when a tax preparer for the IRS was convicted for preparing fraudulent tax returns prosecutors asked Gleeson to allow the preparer to be re-certified as a tax preparer, and allow him to keep working without having to give notice of the conviction to clients. Whereas when a barber was convicted of nonviolent crime prosecutors argued that he should lose his license.

Justice must be fair and equal for all. When people commit crimes they should receive punishment; however depending on the crime that punishment shouldn’t interfere with employment opportunities years down the road. Punishments should also be static; two people who commit the same crime shouldn’t receive different punishments.

Judge Gleeson’s decision to expunge theconviction was a step in the right direction in relation to second chances. When someone commits a nonviolent crime they deserve the chance to redeem themselves. Our White Plains criminal defense lawyers support these efforts to create a statutory expungement procedure in New York.

One of the most effective means of getting a stale criminal case dismissed is a speedy trial motion, which is also commonly known as a 30.30 motion by Westchester criminal defense lawyers. This remedy often comes into play when the prosecution is routinely not ready to proceed.

The rules under New York Criminal Procedure Law section 30.30 are relatively straight forward, however, the interpretation of the exceptions often allows the exception to swallow the rule. In general the Defendant has a speedy trial right, and under New York Criminal procedure law, the prosecution must be ready for trial within six months of the arraignment, where the case is a felony, or within ninety days when the case is a class A misdemeanor. If the case is a class B misdemeanor, the prosecution must be ready for trial within sixty days.

The definition of ready often is the deciding factor. While prosecutors routinely declare ready, when they are not really ready, there are some clear cases when the People are not ready as a matter of law. However, the defendant must be aware that where the defense counsel consents to an adjournment, the time does not count against the prosecution. Many prosecutors, especially in Queens and Westchester condition plea negotiations upon consent to an adjournment. Where the defendant does not consent, the time is charged to the prosecution when they request the time or declare that they are not ready. On a felony case, where the prosecution has not secured an indictment, all of the time counts towards the speedy trial time, because the prosecution cannot be ready where they have not secured an indictment. Likewise on a misdemeanor case, where the prosecution does not have either a first party complaint or a supporting deposition they are not ready. Likewise, in a misdemeanor drug charge, where the prosecution has not secured a lab report, they are not ready.

Many times, the prosecution declares ready and then they are not ready when the case is called for trial. If the prosecution requests a week and the Court adjourns it for a longer period, the prosecutors often argue that they are only charged for the time they requested and unfortunately many local criminal courts agree, even though there is clear appellate law that the prosecution must either declare that they are ready on the record or file a certificate of readiness to be ready. As such, our Manhattan criminal defense lawyers believe the better rule is that all of the time should run, until the prosecutor declares ready. Of course, this assumes that the defense has not consented to any adjournments.

In most he said, she said cases, such as assault cases, multi-defendant possession of drugs or a weapon charge, a grand jury proceeding is an effective forum to end a felony prosecution at an early stage. Where there is a viable defense, testing the People’s case at an early stage can prevent a stressful, expensive and lengthy prosecution. Our Westchester criminal defense lawyers have successfully handled numerous grand jury proceedings and aggressively stand up to the prosecutor’s frequent attempts to limit our client’s presentation of evidence.

A recent Bronx decision boldly reiterated the rights that defendants have in grand jury proceedings. In People v. Matos-Mesa, the Defendant was charged with felony assault with a weapon and the defendant testified in front of the grand jury that his actions were taken in self defense and indicated that a neighbor had witnessed the incident and had video recorded part of it. The defendant’s criminal defense attorney had emailed the prosecutor the witness’ contact information, but the prosecutor did not present her testimony and claimed that the witness didn’t remember the incident.

The Court dismissed the indictment because the prosecutor violated the defendant’s rights by not allowing the grand jury to decide whether to call the witness. New York Criminal Procedure Law 210.20, 210.35 and 190.50 allows a defendant to challenge the legal sufficiency of an indictment on the ground that it was obtained by an unfair grand jury proceeding. The Court found that by failing to notify the Grand Jury of the witness, the assistant district attorney obstructed the the Grand Jury’s investigation by denying the accused a meaningful Grand Jury presentation. Criminal Procedure Law ยง190.50 (6) provides a defendant the right to request that a witness testify before the Grand Jury and it allows the Grand Jury, not the prosecutor to determine whether to have the witness’ testimony. The Courts have even recognized that the defense has the right to ask that a Grand Jury issue a subpoena to secure a witness’ testimony. The Westchester prosecutors have tried to side step this requirement by claiming that it was the defense’s obligation to have its witnesses present to testify.

Our criminal defense attorneys have also encountered situations where a prosecutor tried to condition presentation of the witness upon a private interview with the witness prior to their testifying. The Court in Matos Mesa affirmatively rejected this contention because the prosecutor may not claim they have to learn what the witness’ testimony will be prior to advising the Grand Jury of the request that the witness testify because a prosecutor does not have discretion whether to the present a defense witness or to usurp the Grand Jury’s discretion in determining what witnesses can testify. In New York, a prosecutor has the obligation to inform the Grand Jury of any witnesses the defense wants to call and all information about the witness provided by the defense, Our New York City criminal defense attorneys will continue to fight prosecutorial abuse of the grand jury process.

Our New York criminal defense lawyers continue to keep up to date on emerging areas of criminal defense law in the state of New York. An update New York power struggle has emerged over a case involved arrests from an occupy wall street movement where protestors set up a protest in Albany across from the State Capitol Building. The District attorney opted to decline to prosecute the cases and one of the criminal court judges decided that the prosecutor has broad discretion to decide which cases to prosecute dismissed the cases. However a handful of cases landed on the docket of a different judge which decided that he would only dismiss the cases if the protestors performed community service which would have benefited military veterans. The protestors refused and the Court refused to dismiss the charges. This requirement obviously would have been offensive to the protestors,many of whom, who were protesting the military industrial complex in the first place. The prosecutor then decided to decline to prosecute and the criminal court judge refused to allow him to do so.

In response to the Court’s unreasonable tactics, the prosecutor essentially opted to throw the case. Since the Court ordered the prosecutor to proceed to trial, the prosecutor did so, but opted not to call any witnesses, which mandated a dismissal because without witnesses being called there can be no prima facie case that a crime or offense was committed.

The New York Supreme Court held that the Judge was correct, that a case could not be withdrawn once initiated, unless the Criminal Court Judge approved of the dismissal. The Supreme Court also held that the Criminal Court did not have the power to hold the prosecutor in contempt because it is solely in the prosecutors discretion to determine what witnesses to call and what evidence to present. The Criminal Court Judge contends that criminal court judges need the contempt power to ensure that justice is done and that the public is protected, from accused criminals as well as the abuse of the prosecutorial power and to ensure that the rights of the accused are protected by the prompt, lawful and conclusive administration of justice

The Third Appellate Department is set to hear the controversy. For over a decade our New York attorneys have continued to fight on behalf of the underdog in the New York Courts.

Our White Plains criminal defense lawyers have handled many cases involving teenage offenders. There are numerous benefits that the law recognizes for offenders who are eighteen years old or younger and are charged with crimes as an adult.

One of the most important benefits is when the youthful offender is charged with a sex crime, the law prohibits the youthful offender from being registered as a sex offender under SORA. Another benefit that New York law provides for youthful offenders is that there is no DNA registry. Normally, under New York law, when someone is convicted of a misdemeanor or felony, their DNA is taken and placed in a centralized database. Youthful offenders exempted from the DNA databank under New York law.

The authorized sentences for a youthful offender are as follows. For an offense other than a felony, the court must impose a sentence authorized for the offense for which the youthful offender finding was substituted, however the maximum sentence is six months incarceration. For any felony, the court must impose a sentence authorized to be imposed upon a person convicted of a class E felony. In most cases the maximum sentence for a Class E felony is four years incarceration. The maximum sentence is a mazimum possible sentence and that does not mean that is what the youthful offender will get. Our Westchester criminal defense attorneys have extensive experience in negotiating non-jail sentences, such as fines, conditional discharge and probation, especially for youthful offenders.

From our White Plains office, our criminal defense lawyers regularly handle cases in the criminal courts of White Plains,Yonkers, New Rochelle, Greenburgh, Mount Vernon, Elmsford, Armonk, Port Chester, Rye, Mamaroneck, Tarrytown, Sleepy Hollow, Ardsley, Mount Pleasant, Hartsdale and Scarsdale.

From our Queens office in Forest Hills, our criminal defense lawyers have handled many criminal cases in Manhattan, Bronx and Queens.

From our White Plains office our experienced Westchester criminal defense lawyers have handled hundreds of criminal cases. Often, where a defendant is innocent, they are blindsided by an accusation which they know nothing about. Often these charges are based on faulty evidence and baseless speculation. Our White Plains criminal defense lawyers have used experts in a number of scenarios to challenge the government’s evidence. A few examples are as follows.

In robbery cases, often there is a tape of the incident and then some local police department just says the person is on the tape is someone that they are after. The result is that innocent people are being framed. Our Westchester criminal defense lawyers in a recent case had the tape analyzed by a well credentialed facial recognition expert who opined that the perpetrator was not our client and was able to offer substantial and convincing analysis by identifying differences in body type, height and facial structure.

In motor vehicle cases including Driving While Intoxicated, reckless driving, and leaving the scene of the accident, among others, our criminal defense attorneys have had accident reconstruction experts to analyze the physical evidence from the scene and challenge the state’s theory of how an accident occurred. In another case, the expert was able to determine that the damage pattern on the vehicles did not match and as such, the car was not involved in the accident described by the complaining witness.

Our Westchester criminal defense lawyers have successfully challenged numerous gravity knife cases by hiring a cutlery expert, who can demonstrate that the knife in question was not a gravity knife based upon the mechanics of how the knife opens.

In another case, our lawyers challenged the authenticity of a taped confession and corroborated that threats were made by having the tape reviewed by an audio engineer who opined that the tape showed definite discontinuities, as such, the tape was not a full and fair account of what happened during the interview.

In another case, we were able to use a ballistics expert to testify that our client was not the shooter because he did had a negative gun shot residue test, which meant that he did not fire a gun. The same expert was also able to dispute the significance of a witness’s testimony that our client had a revolver where shells were found at the scene because revolvers do not discharge shells, they retain them in the compartment.

In another sex abuse claim, our criminal defense lawyers actually used the government’s forensic expert to show that semen did not match our client and the existence of semen from different individuals showed sexual activity with multiple partners within a short period of time prior to our client being accused.

In a case where our client was accused of having sex with a complaining witness who claimed she must have been unconscious because she did not remember the incident, another expert was able to establish that memory loss was caused by the combined effect of alcohol and drugs which the complaining witness voluntarily took after the alleged sexual activity.

Experts can be utilized in a wide variety of criminal cases to challenge the government’s evidence. Often a case becomes a he said, she said situation but an expert provides a high degree of credibility to challenge the government’s case.

Our criminal defense lawyers have handled criminal cases in the criminal courts of Westchester including White Plains, Scarsdale, New Rochelle, Mamaroneck, Ossining, Valhalla, Port Chester, Bronxville, Yonkers, Mount Vernon, Valhalla, Scarsdale, Rye, Tarrytown, Greenburgh, Elmsford and Hartsdale

In general prosecutors have an obligation to disclose to New York criminal defense attorneys, information which tends to establish the defendants’ innocence or undermine the State’s case. Unfortunately the New York Court of Appeals in People v. Fuentes restricted the right of New York criminal defense lawyers right to obtain material which undermines the case against their clients.

This ruling will undoubtedly encourage Prosecutors to withold information that undermines the case against criminal defendants and completely undermining the intergrity of criminal trials. In this blogger’s opinion, the New York Courts are misconstruing the federal caselaw.

Judge Jones, the dissent in Fuentes was correct. In general Appellate Courts essentially forgive a failure to disclose unless a document is ” Material”. Material means there must be “a reasonable possibility” that its disclosure would have affected the outcome of the trial. In Fuentas, the defendant was charged with rape and the defendant claimed that the sexual activity was consentual. A record which was withheld from the defense, i.e., a record of a psychiatric consultation which contained information concerning the condition of the victim during her examination following the incident. The victim expressed feelings of depression, suicide, family problems, mistreatment by her mother, withdrawal and substance abuse. Clearly, these raised issues as to the complaining witness’ credibility and the fact that she had recently used drugs was relevant, but the Court to protect a conviction at all costs held that it wasn’t material. The Court made this decision even though New York criminal Courts have routinely held that non-disclosure of psychiatric problems justifies a reversal.

Michael Joseph is a New York criminal defense lawyer with offices in Manhattan and 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 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.