New York Criminal Lawyer Blawg

Vehicle and Traffic Law Amendments

The top criminal defense lawyers will always keep informed of new developments in New York Law. It is also important to determine if the law is retroactive and when the new law or amendment in the law goes into effect.

Recently NYS Amended the Following:

1. Driver's License Suspension after a Drug Conviction -- In 1993 NYS passed a law requiring a 6 month suspension of a motorists New York State Driver's License or a 6 month delay in eligibility for a driver's license if convicted of a misdemeanor or felony drug offense, including juvenile or youthful offender adjudications. This is now a permanent law.

It is important for the motorist to know that the criminal defense attorney can with good cause ask for a waiver of this suspension period from the court.

2. Use of a Cell Phone While Driving -- Use of a cell phone can now act as a primary violation of the New York State Vehicle and Traffic Law that can independently justify a traffic stop. Previously, a motorist could only be ticketed for the offense when stopped for committing another violation. The offense also carries with it points. This is effective July 12, 2011

3. School Bus Drivers - List of Disqualifying Criminal Convictions has been established to prohibit a person from being a school bus driver VTL 509-cc(4). Effective February 12, 2012.

4. Due Care to Avoid Hazard Vehicles -- All motorists are now required to exercise due care to avoid colliding with a hazard vehicle. This includes moving from the lane nearest the hazard vehicle. Effective August 17, 2011.

This is the one law that has been advertised on major highways. For example on route 684 in Westchester County the law has been posted for months to alert motorists to move from the lane adjacent to the emergency or hazard vehicles.

For any questions about the New York State Vehicle and Traffic Law or changes to the law contact a criminal defense attorney.

The Criminal Charge and Defense

Under New York criminal law the criminal defense attorney has the right to file a written motion to dismiss any criminal charges. The motion can also contain a demand for other relief for the accused but the main goal of the motion is a dismissal of the case.

Recently in Dutchess county in the Town of Kent a motorist was charged with DWI and in Westchester County a motorist was charged with DWI in Mount Vernon. A motion to dismiss can be made in any court for these types of cases or for other offenses such as a drug charge, sex offense, white collar crime. The top criminal defense attorneys prepare for the motion to dismiss as soon as possible.

The Omnibus Motion

The Omnibus Motion is a motion that must be filed within 45 days of the accused's arraignment. The Omnibus Motion is a motion to dismiss and for all other relief the accused is seeking. The Omnibus Motion usually includes the following:

1. Dismissal of the case
2. Motion for Discovery
3. Hearings on Statements made by the accused
4. Identification evidence of the accused
5. Suppression of evidence
6. Review of Grand Jury minutes
7. Suppression of the accused's bad acts and prior convictions
8. Sever the charges
9. Server co-defendants
10. Change of venue

The examples above are the primary examples in a criminal defense motion.

Sufficiency of the Motion

The criminal defense attorney must be careful to be sure the Omnibus Motion is sufficient. The motion usually consists of a statement of facts by the attorney and a memorandum of law by the attorney but equally important is a sworn statement by the accused regarding the case and the issues to be resolved. The criminal defense attorney will interview the client and write the statement for the client's signature.

The statement is important because it will be a first hand sworn accounting of what took place. For example in a drug case the accused has first hand information on the police's actions.

The Judge's Decision

The judge will usually issue a written decision on each issue raised in the defense attorney's motion to dismiss including dismissal of the entire case. This decision will provide information about how the case will proceed.

Drug Arrests

Recently there has been several drug related arrests in Westchester, Rockland and Putnam Counties. These arrests were the result of long term investigations or by specialized street crimes units of the local police departments.

On November 10, 2011, 12 people were arrested for selling drugs in Rockland County. The basis of the arrests was a six month grand jury investigation for the sale of heroin, prescription drugs and cocaine. These raids produce large sweeping arrests of multiple people.

Also, in Putnam County a three month investigation led to the arrest of a Dutchess County man for felony sale of cocaine and MDMA. The felony charges included criminal sale and criminal possession of a controlled substance.

Westchester County has its own task forces that result in sweeping drug arrests. In Greenbugh, White Plains, Yonkers or Mount Vernon multiple drug arrests are the focus of the police activity.

When these arrests are made it is important to contact a top criminal defense attorney since the defense needs to begin soon after the arrest and is often complex.

The Defense of the Multiple Person Drug Arrest.

There are several main issues for the criminal defense attorney when attacking the prosecutions case they include:

1. Bail applications to immediately have the accused released from jail. Usually the local justice courts will set high bail amounts and make it difficult to obtain release. Those bail amounts should be appealed.

2. Review statements by the accused or co-defendants. NO ONE SHOULD EVER make any statements to the police unless they are asking for a lawyer.

3. A detailed interview of the client needs to be obtained. The best criminal defense lawyers will get every single detail to help prepare the case.

4. The defense lawyer needs to get a copy of the lab report as soon as possible. The lab report will identify the drug and include weight. Weight governs if the charge is a felony or a misdemeanor.

5. Should a felony hearing be requested? This decision is on an individual case by case basis. In requesting a felony hearing the attorney needs to determine if it will have the client released from jail, provide valuable discovery or result in a dismissal or reduction of the charge.

6. The criminal defense attorney needs to know if any of the co-defendant's have made statements to the police and what impact that has had on the client.

7. Lastly, the criminal defense lawyer needs to defend drug charges by attacking the prosecutions case, meeting with the client and preparing the case. It is shocking how many attorneys never speak with their client, visit them at the jail or discuss legal strategy. The top criminal defense attorney always involves the client in their case.

Drug Raids & Sealed Indictments

The police and prosecution have several methods to arrest people for drug possession and sale. It is important to defend the case aggressively to determine if the police have acted properly and have sufficient information to arrest

Why does it take so long to investigate drug cases?

The simple answer is that usually the police can't tell if there is drug activity and spend an enormousness amount of time watching people they suspect. This should be the focus of any attack on the prosecutions case since probable cause is always an issue in these types of case.

The Automobile Stop

The automobile stop is one of the most common type of police encounters. In Westchester, Orange, Rockland and Putnam Counties the local justice courts a very busy because of the several police departments on the roads including county police, the state police and local law enforcement. A proper review of the stop, traffic ticket and subsequent arrest is important to any criminal defense. In White Plains, New York the city police routinely have day time check points to inspect, seat belts, cell phone use, insurance and registration.

Any time a basic stop is conducted or an arrest it is important to contact a criminal defense attorney.

The Stop of a Vehicle by Police Officers

The police sometimes will use a traffic infraction as a purported justification to stop a vehicle in order to search the vehicle or question the occupants about an unrelated serious crime. Because the police have no reason to stop the vehicle for a serious crime the police will use a traffic infraction as a "Pretext" to stop the vehicle, search the vehicle and question the occupants.

The Pretext Stop

The best way to describe a "Pretext" stop of a vehicle is a legal stop carried out for an illegal purpose. Pretext stops have been criticized as an unreasonable and arbitrary exercise of discretionary police power.

Usually if the police a observe a suspicious vehicle they will follow that vehicle for a lengthy period of time and once a traffic infraction is committed the vehicle will be stopped to investigate the more serious crime. Often no traffic ticket is written for the stop but an arrest is made for the more serious crime.

Under both the federal and state constitutions the police may use a a traffic stop as a pretext to search a vehicle for evidence of another offense. Whren v U.S., 517 US 806; People v Robinson, 97 NY2d 341.

The Criminal Defense of a Pretext Stop

The top criminal defense lawyers know that although the police can use a pretext stop the facts surrounding the stop are very important to the defense. Usually the stop will be deemed legal but the attack is with the other police actions or behavior. Since this is complex it can often be overlooked. Always speak to a criminal defense attorney in New York about the facts surrounding the stop, the police's actions and your actions for the criminal defense attorney to properly review the case.