Guilty client charged with two Class A Misdemeanors: Charges Dismissed
This client got very lucky. He was caught on tape stealing. This particular client had a lot to lose because he had just graduated from college with a very expensive advanced degree and a criminal conviction would have hampered his ability to get licensed in his profession. Other criminal defense lawyers I have talked since would have settled for a plea bargain to one Class A misdemeanor. I was able to get the charges dismissed via the ACOD (Adjournment in Contemplation of Dismissal) Statute. NY CPL 170.55. Granted, not every prosecutor would have been convinced to go for that deal, but I convinced the prosecutor the dismissal was required in the "furtherance of justice".
What the heck does "furtherance of justice mean"? NY CPL 170.40. is the statute that explains the meaning of those words and states that to prevent injustice the court must consider a laundry list of factors including among others "the history, character, and condition of the defendant" NY CPL 170.40 (1)(d) and "any exceptionally serious misconduct of law enforcement personnel..." NY CPL 170.40 (1)(c).
In this case I demonstrated to the prosecutor and the court that the smallest mark on my client's record could potentially ruin his career before it even began and that considering the sacrifices my client had made to achieve his advanced degree, the only just outcome was a dismissal. Of course my client had to perform 50 hours of community service as a condition of the dismissal. A small price to pay.
When it comes to first time offenders, the "furtherance of justice" criteria can be successfully employed to get really good deals. Here is another story:
Criminal Possession of a Controlled Substance 7th Degree NY Penal Law 220.03. Charge Dismissed
This was one of my most interesting cases of 2008 because It gave me the opportunity to do some research and the courtroom experience was a bit unusual, yet very fun. Again, my client had a lot to lose were he to be convicted even of a violation because his career would be in jeopardy. (Under NY Penal Law, a violation is an offense, not a crime. This is a very important distinction for obvious reasons. NY Penal Law 10.00(6) defines a crime as a misdemeanor or felony.)
My client got busted with a very small amount of narcotics in a public place. He was in a line and "consented" to a search of his bag. I learned that there was direct coordination between law enforcement and the private security company conducting the searches and that some of the security company staff were off duty cops. Ordinarily, anyone can be legally searched upon entering private property or public property. And if the searcher discovers contraband, the searcher can "arrest" that person and turn them over to the police. However, the rules change when the searcher is a police officer or is otherwise affiliated with the Government. That is because the 4th amendment applies and the Government needs either probable cause or a warrant to search you. Because the searchers in this case were acting in concert with the police with the objective of busting people for drug possession, the searchers essentially became Government agents conducting warrantless searches without probable cause making the searches un-constitutional. Anyway, that was my theory and I referred to it as part of my motion to dismiss in the "furtherance of justice".
The day this case was scheduled for arraignment was a special day set aside by the court to hear cases specifically related to the event at which my client was busted. Some of the most prominent criminal defense lawyers in the area had clients who were busted at the event including one guy who is arguably the most prominent criminal defense attorney in Albany. I discussed my legal theory with him about the searches and he not surprisingly agreed with me but he, like me, had clients who hired us to get deals, not contest the charge.
When my turn with the Assistant District Attorney came up, the Judge happened to be present during the meeting. I used that opportunity to explain to both the People and the Court why the charge against my client should be dismissed under the ACOD statute. I was prepared with arguments that satisfied all the criteria of the "furtherance of justice" statute. At the end of my presentation the judge said he would accept the deal. The ADA said he would as well but we would have to adjourn the court date because he did not want all the other attorneys in the court room to hear that he gave me that deal.
I consider that case a win.
Sunday, December 21, 2008
Sunday, December 7, 2008
Why Hire a Traffic Lawyer? Accidents.
I was making small talk with another lawyer the other night. We were discussing the kind of work we do. She had clerked for the Court of Appeals (the highest court in NY) and now is employed by a very fancy law firm, where she is an associate in the medical malpractice department. In contrast, I worked as a carpenter nearly full time when I went to a law school and other than a stint for a firm, I have been a solo practitioner handling mostly traffic and DWI cases. I was feeling, well let's say a little low class, but we ended up having a lengthy and very interesting conversation.
At one point the lawyer told me about the one traffic case she handled and how she felt bad for the client because she could not get him a deal, and he paid a grand for the service. The client was a doctor who was ticketed for allegedly "failing to yield the right of way" resulting in a minor personal injury accident. The prosecutor offered to "reduce" the charge to a "failure to obey a traffic control device" or NY VTL 1110(A). The lawyer said she took the "deal" because if her client was convicted of the failure to yield right of way offense, the conviction would be offered as evidence against him at a personal injury trial. I'm still confused why this lawyer thought that a guilty plea to the 1110(a) charge would be any different. The 1110(a) is a moving violation that carries two points. In my opinion, this lawyer essentially pled her client guilty to the charge. In any case, if the offer is plead to the charge, there is no offer and you have nothing to lose by going to trial, and something to gain by the chance of winning the trial.
In the case of this doctor and the accident, the cop who wrote the ticket did not see the accident himself. Unless the cop is an accident reconstruction expert, he can't testify about something he did not see. The burden is on the people at trial to establish a prima facie case and without a witness testifying from personal knowledge, that will be tough. Maybe the people have witnesses who saw the accident. Well if it's the people in the other car, and they are there to testify, why not at least cross examine them? They are probably biased and have a motive to lie.
I believe there is a general notion that any attorney can handle a traffic case, and it is generally true that any moderately competent attorney can negotiate as decent plea bargain. However, it does not follow that such an attorney will have the skills to actually defend a traffic defendant. That is because a real traffic attorney is a trial lawyer first. There are traffic lawyers who are excellent deal makers but when the chips are down, they will plead a client guilty to the charge because they do not know how to fight.
At one point the lawyer told me about the one traffic case she handled and how she felt bad for the client because she could not get him a deal, and he paid a grand for the service. The client was a doctor who was ticketed for allegedly "failing to yield the right of way" resulting in a minor personal injury accident. The prosecutor offered to "reduce" the charge to a "failure to obey a traffic control device" or NY VTL 1110(A). The lawyer said she took the "deal" because if her client was convicted of the failure to yield right of way offense, the conviction would be offered as evidence against him at a personal injury trial. I'm still confused why this lawyer thought that a guilty plea to the 1110(a) charge would be any different. The 1110(a) is a moving violation that carries two points. In my opinion, this lawyer essentially pled her client guilty to the charge. In any case, if the offer is plead to the charge, there is no offer and you have nothing to lose by going to trial, and something to gain by the chance of winning the trial.
In the case of this doctor and the accident, the cop who wrote the ticket did not see the accident himself. Unless the cop is an accident reconstruction expert, he can't testify about something he did not see. The burden is on the people at trial to establish a prima facie case and without a witness testifying from personal knowledge, that will be tough. Maybe the people have witnesses who saw the accident. Well if it's the people in the other car, and they are there to testify, why not at least cross examine them? They are probably biased and have a motive to lie.
I believe there is a general notion that any attorney can handle a traffic case, and it is generally true that any moderately competent attorney can negotiate as decent plea bargain. However, it does not follow that such an attorney will have the skills to actually defend a traffic defendant. That is because a real traffic attorney is a trial lawyer first. There are traffic lawyers who are excellent deal makers but when the chips are down, they will plead a client guilty to the charge because they do not know how to fight.
Saturday, December 6, 2008
Why Hire a Traffic Lawyer?
As part of an effort to make the Saratoga Lawyer Blog more useful and informative, this post will be the first in a series that illustrates the important work traffic lawyers do with real word illustrations from my cases and experience. Too often, people rely on lawyers who do not specialize in traffic with the misguided belief that any lawyer can handle a traffic case. Too often I get the call to straighten out the legal mess resulting from the mishandling of a simple traffic case.
I recently took a case referred to me by an attorney who is a friend and an estate planner. The client is the son of a client of my friend's law firm. The son is being charged with Aggravated Unlicensed Operation 3rd degree or AUO 3rd. This is a very common offense in New York State and it is a misdemeanor, like a real crime. If you are caught driving on a suspended license, you get the AUO 3rd. Most cops allow the defendant to drive home. Sometimes, people are actually arrested and have to post bail. I had a client who did seven days in county jail for this offense. So it is a serious charge, and it happens to all kinds of people; lawyers, doctors, teachers, etc.
People generally find themselves facing an AUO3rd because they did not know their license was suspended. The typical case is that the driver failed to appear for a previous traffic ticket and the issuing court suspends their license. In the meantime, the driver moves but does not notify the DMV of their address change, (which happens to also be a V&T violation), so they never get actual notice of the suspension. Lack of knowledge is generally not a legal defense.
I can generally get an AUO 3rd dismissed or reduced by showing the prosecutor that my client has addressed the underlying suspension issue. In the case at bar, I offered to take care of the matter for the client in the court that suspended him, but he said he wanted to use the lawyer who he initially hired for that case. I though it was very odd that my client was hiring the lawyer who caused his current problem, but I did not protest. I later learned that the lawyer was my client's relative who happens not to be traffic lawyer.
One thing I have learned is to never, ever, trust that a client really knows what is going on with his or her case. In the case at bar, as soon as I was retained, I called the court that issued the AUO 3rd and learned there was a warrant out for my client's arrest because he missed his court appearance. Had my client been pulled over, or for some reason interacted with law enforcement, he would have gone to jail. A decidedly unsavory experience for a naive college senior.
It is important to hire an experienced traffic ticket lawyer for more reasons than simply "getting a deal". A good traffic lawyer must be diligent in following up on his or her cases because of the AUO 3rd. Many Courts are very quick to suspend the driver that is ignoring his or her obligations to the Court resulting in big problems for the client down the road.
I recently took a case referred to me by an attorney who is a friend and an estate planner. The client is the son of a client of my friend's law firm. The son is being charged with Aggravated Unlicensed Operation 3rd degree or AUO 3rd. This is a very common offense in New York State and it is a misdemeanor, like a real crime. If you are caught driving on a suspended license, you get the AUO 3rd. Most cops allow the defendant to drive home. Sometimes, people are actually arrested and have to post bail. I had a client who did seven days in county jail for this offense. So it is a serious charge, and it happens to all kinds of people; lawyers, doctors, teachers, etc.
People generally find themselves facing an AUO3rd because they did not know their license was suspended. The typical case is that the driver failed to appear for a previous traffic ticket and the issuing court suspends their license. In the meantime, the driver moves but does not notify the DMV of their address change, (which happens to also be a V&T violation), so they never get actual notice of the suspension. Lack of knowledge is generally not a legal defense.
I can generally get an AUO 3rd dismissed or reduced by showing the prosecutor that my client has addressed the underlying suspension issue. In the case at bar, I offered to take care of the matter for the client in the court that suspended him, but he said he wanted to use the lawyer who he initially hired for that case. I though it was very odd that my client was hiring the lawyer who caused his current problem, but I did not protest. I later learned that the lawyer was my client's relative who happens not to be traffic lawyer.
One thing I have learned is to never, ever, trust that a client really knows what is going on with his or her case. In the case at bar, as soon as I was retained, I called the court that issued the AUO 3rd and learned there was a warrant out for my client's arrest because he missed his court appearance. Had my client been pulled over, or for some reason interacted with law enforcement, he would have gone to jail. A decidedly unsavory experience for a naive college senior.
It is important to hire an experienced traffic ticket lawyer for more reasons than simply "getting a deal". A good traffic lawyer must be diligent in following up on his or her cases because of the AUO 3rd. Many Courts are very quick to suspend the driver that is ignoring his or her obligations to the Court resulting in big problems for the client down the road.
Wednesday, December 3, 2008
Guns guns guns.
First the Plaxico story.
Now this from the Times Union.
http://timesunion.com/AspStories/story.asp?storyID=746453
Apparently the top lawyer for the New York State Police is packing heat. Something just seems weird here. Does he need the gun for self defense? He certaintly does not need a weapon to do his job. Lawyers shoot words not bullets. If he wants to carry a gun that is his right. Poor Plaxico also had that right but chose not to get a license. I'm beginning to believe the gun has to be the most unfortunate invention of mankind.
Now this from the Times Union.
http://timesunion.com/AspStories/story.asp?storyID=746453
Apparently the top lawyer for the New York State Police is packing heat. Something just seems weird here. Does he need the gun for self defense? He certaintly does not need a weapon to do his job. Lawyers shoot words not bullets. If he wants to carry a gun that is his right. Poor Plaxico also had that right but chose not to get a license. I'm beginning to believe the gun has to be the most unfortunate invention of mankind.
Monday, December 1, 2008
Heroin in? A follow up.
I had a client not too long ago who was charged with "criminally possessing a hypodermic instrument" in violation of NY PL 220.45. My client was a heroin addict. He overdosed in a friends house. His friend called an ambulance. For some reason, the police showed up as well. Because there was a needle near my client, he was charged with a Class A misdemeanor, a relatively serious charge.
Well it turns out the house he allegedly committed his crime in was just across the town line, which was just outside the jurisdiction of the police department that wrote him the appearance ticket. Therefore, the court lacked "geographic jursiduction" over my client.
I showed up at the scheduled court appearance without my client and made an oral motion to dismiss the charge for lack of jurisdiction. The Judge really had no choice but to grant the motion.
The prosecutor basically conceded to my argument to dismiss. However, he questioned if what I was doing was in the best interest of my client, who obviously was a heroin addict. I felt a little guilty at first but now looking back, I am confident that a jail would have been worst possible place for my client to deal with his problem in.
Well it turns out the house he allegedly committed his crime in was just across the town line, which was just outside the jurisdiction of the police department that wrote him the appearance ticket. Therefore, the court lacked "geographic jursiduction" over my client.
I showed up at the scheduled court appearance without my client and made an oral motion to dismiss the charge for lack of jurisdiction. The Judge really had no choice but to grant the motion.
The prosecutor basically conceded to my argument to dismiss. However, he questioned if what I was doing was in the best interest of my client, who obviously was a heroin addict. I felt a little guilty at first but now looking back, I am confident that a jail would have been worst possible place for my client to deal with his problem in.
Heroin in. Marijuana out?
I found this article to be fascinating. The citizens of Switzerland recently voted via referendum to continue a government program that regulates the distribution of legal heroin, yet voted against a proposal to decriminalize marijuana.
http://www.nytimes.com/2008/12/01/world/europe/01swiss.html?_r=1
Hmmmm. What is going on here?
Without having demographic information about who voted in the referendum, it is difficult to make an educated analysis here, But....
I don't think anyone is going to jail in Switzerland for marijuana offenses, other than distinctly egregious offenses. Marijuana prosecution is a low priority for law enforcement in Switzerland so the laws there are not as offensive as in some countries. ( the U.S. for example)
I think the Swiss are generally against putting drug addicts in jail because they realize that such a policy is inhumane, stupid, and barbaric. That is a concept that our government, especially the Feds, cannot seem to wrap around their thick skulls. (with the exception of a brazen few.) The fact that right now in America there are probably hundreds of thousands of citizens in jail for the crime of drug possession is an affront to humanity.
Putting aside the humanitarian argument, let's focus on the money. I'll bet it is far cheaper to manage a heroin addict's scheduled distribution than it is to incarcerate a drug possessor. And according to the article, the addicts get counseling, clean needles, and they do not have to exist in a filthy underground that pollutes the community. The Swiss are getting far more bang for their buck than we in the US are when it comes to drug policy. This Puritan "drugs are bad, umkay.." mentality has to end now.
For the record, I'm against drug abuse in any form. But most of us have had friends or family who have abused drugs at one time or another. And we would never want them to go to jail, or even be arrested. You have to ask the question, "Who is better equipped to deal with a human being addicted to drugs- A health care professional, or a warden at a prison?"
http://www.nytimes.com/2008/12/01/world/europe/01swiss.html?_r=1
Hmmmm. What is going on here?
Without having demographic information about who voted in the referendum, it is difficult to make an educated analysis here, But....
I don't think anyone is going to jail in Switzerland for marijuana offenses, other than distinctly egregious offenses. Marijuana prosecution is a low priority for law enforcement in Switzerland so the laws there are not as offensive as in some countries. ( the U.S. for example)
I think the Swiss are generally against putting drug addicts in jail because they realize that such a policy is inhumane, stupid, and barbaric. That is a concept that our government, especially the Feds, cannot seem to wrap around their thick skulls. (with the exception of a brazen few.) The fact that right now in America there are probably hundreds of thousands of citizens in jail for the crime of drug possession is an affront to humanity.
Putting aside the humanitarian argument, let's focus on the money. I'll bet it is far cheaper to manage a heroin addict's scheduled distribution than it is to incarcerate a drug possessor. And according to the article, the addicts get counseling, clean needles, and they do not have to exist in a filthy underground that pollutes the community. The Swiss are getting far more bang for their buck than we in the US are when it comes to drug policy. This Puritan "drugs are bad, umkay.." mentality has to end now.
For the record, I'm against drug abuse in any form. But most of us have had friends or family who have abused drugs at one time or another. And we would never want them to go to jail, or even be arrested. You have to ask the question, "Who is better equipped to deal with a human being addicted to drugs- A health care professional, or a warden at a prison?"
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