Success Stories 2008

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.