By now everyone probably knows that a man was trampled to death by a bargain hungry mob at a Wal Mart on Long Island yesterday. How can it be possible that the allure of a cheap flat screen can transform a human being in to an animal? The fact of the matter is, the makeup of the mob was clearly from a poor section of society. Most of the people had been standing outside for many hours. They knew the bargain items were going to sell out quickly. For them, saving $50 bucks was worth standing out in the freezing cold for hours. Personally, I would have gladly paid $500 to be nowhere near a Wal Mart yesterday given the choice.
Who's to blame? Lets's start with ourselves. What kind of a society have we created here? With this big economic crisis going on, economic pundits lament the decrease in consumer spending. This trend is viewed as negative. Remember when W mailed us all a $600.00 check with the hopes we would all go out and spend? Our leaders consistently deliver the message that buying tvs and other crap is essential to being a good American. Apparently that message has gotten through to those Wal Mart shoppers who chose a bargain over a man's life.
Who are the criminals and guilty parties here? I guarantee the Wal Mart legal team is working this weekend in advance of the soon to be filed law suit. I'm available and willing to take this case by the way. Hey, I'll even cut you a break on the fee! Wal Mart was clearly negligent. What did they think would happen when they allowed a mob to form outside the double doors? Did they expect people to be patient? The security problem was foreseeable from any marginally reasonable point of view. Where was the security? There are times when a human act is so negligent it can rise to the level of a crime. Is Wal Mart criminally negligent in this situation?
Finally, the animals that trampled the man- You cannot tell me those people did not realize they were stepping on someone. That man was a victim of murder.
I hope that community on Long Island takes a long hard look at themselves and does everything in its power to explain to their children what went so wrong on the day the animals slaughtered the Wal Mart worker. Oh, and I almost forgot. Apparently, people refused to stop shopping even after they were informed of the murder. Christ Almighty!
Saturday, November 29, 2008
Friday, November 28, 2008
The little things
I was surprised about how annoyed I got at something silly today. As a criminal defense attorney, you generally get used to all the frustrating things that come with working with and against the government. While it is true that my relationship is adversarial with government, we still have a job to do and that is to get cases resolved as efficiently as possible. I deal with many cases that I consider minor and resolving them depends on clear communication with the other side. Some District Attorney office's are examples of outstanding professionalism, they return phone calls, and they are reasonable and polite. Sadly professionalism is often the exception to the rule.
Here is the little thing that bothered me today. (Keep in my mind, I am totally overreacting to this because I feel like ranting a bit). I have a client who was given a traffic ticket for an equipment violation that simply did not exist with her vehicle. There is a VTL section that deals with license plates that are obstructed, or too dirty to read. My client's car has the always added dealer frame surrounding her plates. I have one on my car. My car's frame says "Saratoga Nissan" and has a little horse on it, your's probably displays the name of your dealer.
There is no question that my client is innocent of the charged offense. I read the statute (NY VTL 402(1) and there is no violation. Furthermore, if the plate frame was in violation of the law than most NY State drivers are currently violating the law.
So I sent a very polite letter to the DA's office which happens to be in a county a couple hours from my office. I included pictures of the client's car and asked the DA to dismiss. Today I get a response which consisted of the the letter and pictures with a post-it note attached. The post-it note contained the following message: "This would be a matter for trial-not for a reduction here. If your client wishes to go to trial, that's fine. Without sworn testimony, and the officer's story, we won't dismiss."
First of all, I am relieved the Assistant District Attorney who penned this note thinks it is "fine" for my client to go to trial if she wishes. Second, a post it note? No letterhead, no contact info, no "truly yours"?
My first reaction was that it was my fault for not including a sworn affidavit from my client. My second reaction was that the ADA who took the time to scrawl out a message on the post-it note has zero respect for me, and that is rude.
As a lawyer, it is important to be professional. That means being courteous. That means understanding that other lawyers' time is precious and valuable and should not be wasted on trivial matters. Am I going to drive four hours round trip to try a case where the fine is probable less than $50? Actually, I will if I have to because the principle is more important to me than the waste of time and gas.
I put a call in to the post-it note lawyer to discuss this matter. Today is Thursday, if I get a call back by Tuesday I will be shocked. I'll update this story later.
Here is the little thing that bothered me today. (Keep in my mind, I am totally overreacting to this because I feel like ranting a bit). I have a client who was given a traffic ticket for an equipment violation that simply did not exist with her vehicle. There is a VTL section that deals with license plates that are obstructed, or too dirty to read. My client's car has the always added dealer frame surrounding her plates. I have one on my car. My car's frame says "Saratoga Nissan" and has a little horse on it, your's probably displays the name of your dealer.
There is no question that my client is innocent of the charged offense. I read the statute (NY VTL 402(1) and there is no violation. Furthermore, if the plate frame was in violation of the law than most NY State drivers are currently violating the law.
So I sent a very polite letter to the DA's office which happens to be in a county a couple hours from my office. I included pictures of the client's car and asked the DA to dismiss. Today I get a response which consisted of the the letter and pictures with a post-it note attached. The post-it note contained the following message: "This would be a matter for trial-not for a reduction here. If your client wishes to go to trial, that's fine. Without sworn testimony, and the officer's story, we won't dismiss."
First of all, I am relieved the Assistant District Attorney who penned this note thinks it is "fine" for my client to go to trial if she wishes. Second, a post it note? No letterhead, no contact info, no "truly yours"?
My first reaction was that it was my fault for not including a sworn affidavit from my client. My second reaction was that the ADA who took the time to scrawl out a message on the post-it note has zero respect for me, and that is rude.
As a lawyer, it is important to be professional. That means being courteous. That means understanding that other lawyers' time is precious and valuable and should not be wasted on trivial matters. Am I going to drive four hours round trip to try a case where the fine is probable less than $50? Actually, I will if I have to because the principle is more important to me than the waste of time and gas.
I put a call in to the post-it note lawyer to discuss this matter. Today is Thursday, if I get a call back by Tuesday I will be shocked. I'll update this story later.
Thursday, November 27, 2008
Need a criminal lawyer? Read this.
http://www.scribd.com/doc/6123526/The-Truth-About-Hiring-a-Criminal-Defense-Lawyer/
I love this guy. When I was starting out as a criminal defense attorney I spent most of my time seeking out and learning from the best practitioners out there. Brian Tannebaum knows what he is talking about in this e-book.
I love this guy. When I was starting out as a criminal defense attorney I spent most of my time seeking out and learning from the best practitioners out there. Brian Tannebaum knows what he is talking about in this e-book.
Friday, November 21, 2008
Thursday, November 20, 2008
8 year old boy shoots dad
If you haven't heard, an 8 year old boy confessed to shooting his father and there is video of the confession.
Legal pundits are generally shocked that law enforcement conducted this interview for several reasons: One, because it was a child who just lost his dad. Two, because the cops were basically putting words in his mouth. Three, that if the confession was the truth, there is no way it would be admissible at trial and now the police have "blown" the case.
As a lawyer, I find this story interesting because it made me think about the laws that protect citizens from being the victims of coerced confessions. I'm sure that the police in this case believed they were doing the right thing. My opinion is that they intentionally pressured the kid to say that he did it. The kid is too young to understand that he has the right to an attorney to look out for him. Whether he did it or not, there can be no disputing the fact that the interrogators' convinced him the right thing to do was to admit to the crime, as opposed to telling the truth.
Legal pundits are generally shocked that law enforcement conducted this interview for several reasons: One, because it was a child who just lost his dad. Two, because the cops were basically putting words in his mouth. Three, that if the confession was the truth, there is no way it would be admissible at trial and now the police have "blown" the case.
As a lawyer, I find this story interesting because it made me think about the laws that protect citizens from being the victims of coerced confessions. I'm sure that the police in this case believed they were doing the right thing. My opinion is that they intentionally pressured the kid to say that he did it. The kid is too young to understand that he has the right to an attorney to look out for him. Whether he did it or not, there can be no disputing the fact that the interrogators' convinced him the right thing to do was to admit to the crime, as opposed to telling the truth.
Monday, November 17, 2008
Why does this bother me?
http://www.dailygazette.com/news/2008/nov/17/1117_seat-belt/
I am always skeptical of stories about law enforcement organizing a "county wide" or "statewide" vehicle and traffic law enforcement program. On paper, these programs profess the lofty goal of keeping the roadways safe. However, the driving public pays a price that many of us would rather avoid. That price comes in the form of unwarranted government intrusion.
When you pass through a roadblock you essentially are being stopped and searched. Generally, in order to be stopped by cop in your car, the cop has to have a legal reason, such as he or she believes you were speeding or violating the vehicle and traffic law. That is because the US and NY State Constitutions prohibit warrantless searches or searches without probable cause. In the roadblock scenario, you are forced to submit to the full scrutiny of the police under the guise of a county or statewide enforcement program.
It is essential for democracy and freedom in this country that citizens keep drawing the line against warrantless government searches. Trust me when I tell you that these days, it is a constant fight against an increasingly intrusive government.
The fact of the matter is that the publicized threat of roadblocks will not change anyone's behavior when it comes to enforcing the seatbelt law. The same way stiffer DWI penalties will not change that behavior either. Maybe you don't care about passing through roadblocks but I'll tell you what, when that overzealous cop shines a 2 foot long mag light in my face and inquires about where I am going, I get very annoyed.
I am always skeptical of stories about law enforcement organizing a "county wide" or "statewide" vehicle and traffic law enforcement program. On paper, these programs profess the lofty goal of keeping the roadways safe. However, the driving public pays a price that many of us would rather avoid. That price comes in the form of unwarranted government intrusion.
When you pass through a roadblock you essentially are being stopped and searched. Generally, in order to be stopped by cop in your car, the cop has to have a legal reason, such as he or she believes you were speeding or violating the vehicle and traffic law. That is because the US and NY State Constitutions prohibit warrantless searches or searches without probable cause. In the roadblock scenario, you are forced to submit to the full scrutiny of the police under the guise of a county or statewide enforcement program.
It is essential for democracy and freedom in this country that citizens keep drawing the line against warrantless government searches. Trust me when I tell you that these days, it is a constant fight against an increasingly intrusive government.
The fact of the matter is that the publicized threat of roadblocks will not change anyone's behavior when it comes to enforcing the seatbelt law. The same way stiffer DWI penalties will not change that behavior either. Maybe you don't care about passing through roadblocks but I'll tell you what, when that overzealous cop shines a 2 foot long mag light in my face and inquires about where I am going, I get very annoyed.
Wednesday, November 12, 2008
Here you go-
Edinburg town justice charged with felony DWI
When a person has a prior DWI conviction within the past ten years and is allegedly caught driving drunk again, he or she will be charged with a felony DWI. This means Brian Kedik, the newly elected Edinburg Town Justice is a repeat DWI offender.
To get charged with the felony DWI, a person must have been convicted of VTL 1192(2), VTL 1192(3), or VTL 1192(4). VTL 1192(1) is the DWAI or "driving while ability impaired" statute. In my experience, almost everyone gets a reduction to DWAI for their first DWI offense. I have had clients with two DWAI offenses on their records. Because Mr. Kedik probably has a DWI offense on his record, he probably has previous a DWAI offense on his record as well.
Mr. Kedik was also recently charged with grand larceny.
Edinburg town justice charged with felony DWI
When a person has a prior DWI conviction within the past ten years and is allegedly caught driving drunk again, he or she will be charged with a felony DWI. This means Brian Kedik, the newly elected Edinburg Town Justice is a repeat DWI offender.
To get charged with the felony DWI, a person must have been convicted of VTL 1192(2), VTL 1192(3), or VTL 1192(4). VTL 1192(1) is the DWAI or "driving while ability impaired" statute. In my experience, almost everyone gets a reduction to DWAI for their first DWI offense. I have had clients with two DWAI offenses on their records. Because Mr. Kedik probably has a DWI offense on his record, he probably has previous a DWAI offense on his record as well.
Mr. Kedik was also recently charged with grand larceny.
Wednesday, November 5, 2008
Beat Your Ticket? Good luck.
I recently won a speeding ticket trial. Ironically, I got the decision around the same time I was explaining to a prospective client why it is nearly impossible to beat a speeding ticket case. This guy was telling me the typical story; He wasn't doing 88, hew was doing 81. There is no way the cop could have seen him over the hill. The car next to him was moving faster. There was a mistake in the paperwork. The cop was a jerk. Etc.
To all those who think they can beat their ticket listen up: Your story means nothing to the Court. The cop's story means everything. A lawyer I used to work with used to interrupt a client mid story and say "I understand what your are saying, but what is the cop going to say?"
Keep in mind, to beat your ticket you have to try your case and speeding ticket trials are easy for a prosecutor to win, at least in New York. Basically, they have to show one of two things; that the officer visually estimated the speed, or there was a reading from a radar or LIDAR (laser) device that was in working order at the time of the reading. Believe me, cops are generally prepared for trial and have done it a million times.
Back to my trial; I didn't fight the case because I had a good case. I fought the case because I couldn't get a good enough deal for my client and I had nothing to lose by fighting. How did I win? The cop testified that he did not do a visual estimate. He also testified that he used a LIDAR device to measure my client's speed. However, when asked if he had any documents showing the LIDAR had been recently calibrated, he answered no.
The prosecution argued that there is no case law saying a LIDAR device, (unlike a radar device), requires documentation that it has been recently tested for its reading to be admissible at trial. I argued that a LIDAR device is a machine like a radar gun, or breath testing device, or any other scientific instrument, which all require some proof of working order for their readings to be admissible at trial. In this case, the judge agreed with me and dismissed the case.
To all those who think they can beat their ticket listen up: Your story means nothing to the Court. The cop's story means everything. A lawyer I used to work with used to interrupt a client mid story and say "I understand what your are saying, but what is the cop going to say?"
Keep in mind, to beat your ticket you have to try your case and speeding ticket trials are easy for a prosecutor to win, at least in New York. Basically, they have to show one of two things; that the officer visually estimated the speed, or there was a reading from a radar or LIDAR (laser) device that was in working order at the time of the reading. Believe me, cops are generally prepared for trial and have done it a million times.
Back to my trial; I didn't fight the case because I had a good case. I fought the case because I couldn't get a good enough deal for my client and I had nothing to lose by fighting. How did I win? The cop testified that he did not do a visual estimate. He also testified that he used a LIDAR device to measure my client's speed. However, when asked if he had any documents showing the LIDAR had been recently calibrated, he answered no.
The prosecution argued that there is no case law saying a LIDAR device, (unlike a radar device), requires documentation that it has been recently tested for its reading to be admissible at trial. I argued that a LIDAR device is a machine like a radar gun, or breath testing device, or any other scientific instrument, which all require some proof of working order for their readings to be admissible at trial. In this case, the judge agreed with me and dismissed the case.
Marijuana Law Update
Two states passed marijuana related initiatives yesterday. From the NORML Website:
1. Michigan legalized medical marijuana.
2. Massachusetts decriminalized possession of small amounts of marijuana.
In New York, Democrats took control of the long time Republican dominated State Senate possibly easing the way for passage of a medical marijuana bill in New York.
1. Michigan legalized medical marijuana.
2. Massachusetts decriminalized possession of small amounts of marijuana.
In New York, Democrats took control of the long time Republican dominated State Senate possibly easing the way for passage of a medical marijuana bill in New York.
Sunday, November 2, 2008
The Automobile Exception: But I didn't know there was pot in the car!
One story I often hear as a marijuana lawyer is that "There was weed in the car but my friend told the cops it was all his and they are still charging me. Can they do that? It wasn't mine!" The answer is, maybe not anymore in New York.
Pursuant to NY PL §220.25 (1), if a person is in a car and the police find a controlled substance that is not concealed on a particular person, but located somewhere in the car, everybody in the car owns it. This rule is referred to as constructive possession, or the automobile presumption.
In a decision dated October 23, 2008, the State of New York Supreme Court, Appellate Division, 3rd Dept. published an opinion ruling that the automobile presumption does not apply to marijuana. see People v. Dan http://decisions.courts.state.ny.us/ad3/Decisions/2008/100515.pdf Their decision was based on a reading of the plain language of the applicable statutes and an application of what lawyers call statutory construction.
When an argument exists about the meaning of a law, courts try to determine what the legislators intended when they wrote the law. If you look at the section of New York's penal law regarding controlled substance offenses you will see a list of definitions, the purpose of which is to specifically define the meaning of the words used in the statutes in that section. So when lawyers and judges try to interpret the meaning of a statute in a particular section of law, they refer to the definitions in the that list, not a dictionary.
NY PL Art. 220 defines controlled substances and marijuana separately. In this case, Dan's lawyer argued that because the automobile exception statute only uses the words controlled substance, and never mentions the word marijuana, the automobile exception applies only to controlled substances. And since marijuana and controlled substances are defined separately in the statute, marijuana is not a controlled substance for the purpose of the automobile exception statute.
The People can appeal this decision and the NY Court of Appeals may have the final say about this issue. I'll keep you posted.
Pursuant to NY PL §220.25 (1), if a person is in a car and the police find a controlled substance that is not concealed on a particular person, but located somewhere in the car, everybody in the car owns it. This rule is referred to as constructive possession, or the automobile presumption.
In a decision dated October 23, 2008, the State of New York Supreme Court, Appellate Division, 3rd Dept. published an opinion ruling that the automobile presumption does not apply to marijuana. see People v. Dan http://decisions.courts.state.ny.us/ad3/Decisions/2008/100515.pdf Their decision was based on a reading of the plain language of the applicable statutes and an application of what lawyers call statutory construction.
When an argument exists about the meaning of a law, courts try to determine what the legislators intended when they wrote the law. If you look at the section of New York's penal law regarding controlled substance offenses you will see a list of definitions, the purpose of which is to specifically define the meaning of the words used in the statutes in that section. So when lawyers and judges try to interpret the meaning of a statute in a particular section of law, they refer to the definitions in the that list, not a dictionary.
NY PL Art. 220 defines controlled substances and marijuana separately. In this case, Dan's lawyer argued that because the automobile exception statute only uses the words controlled substance, and never mentions the word marijuana, the automobile exception applies only to controlled substances. And since marijuana and controlled substances are defined separately in the statute, marijuana is not a controlled substance for the purpose of the automobile exception statute.
The People can appeal this decision and the NY Court of Appeals may have the final say about this issue. I'll keep you posted.
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