New York Criminal Lawyer Blawg

Criminal Defense Attorneys

As Westchester County, New York criminal defense attorneys our office works in the surrounding counties of Putnam, Rockland, Orange and Dutchess Counties as criminal defense lawyers. We will also appear in the courts of the Bronx and New York City. A common question the office receives involves the criminal defense of entrapment. This should provide a brief understanding of the criminal defense of entrapment in New York State.

Entrapment

Entrapment is a criminal defense in New York used by criminal defense attorneys at trial or during plea bargain negotiations. The defense of entrapment is established where the defendant engaged in criminal conduct after being induced or encouraged to do so by law enforcement who was trying to obtain evidence against that defendant.

This is most common in drug cases both possession and sale of a controlled substance.

The methods used by law enforcement must have been such as to create a substantial risk that the crime would have been committed by a person NOT otherwise disposed to commit the crime.

Pursuant to New York Penal Law section 40.05 inducement or encouragement to commit the crime means "active inducement or encouragement". Conduct by police officers merely affording an opportunity to commit the crime is not entrapment.

Burden of Proof

In order to prove entrapment the burden of proof is on the defendant and pursuant to the penal law section 40.05 must be shown by a preponderance of the evidence. The defendant's state of mind and the police conduct are all relevant to prove entrapment.

Dangers of the Entrapment Defense

The primary danger of the entrapment defense is that the defendant must admit the they committed the crime and then argue that although they committed the crime they were not disposed to commit the crime with out active inducement or encouragement from law enforcement.

Criminal Defense Attorney Defense Preparation

In order to prepare a defense such as entrapment where the accused has to prove the defense the criminal defense attorney needs to thoroughly prepare before alleging the defense. This includes interviewing the accused, witnesses and reviewing the prosecutions file.

The top criminal defense attorneys in New York will not put forth a defense of entrapment unless there is a strong possibility for success since the defense itself does involve the accused admitting to the crime. Since each case is different special care must be taken with each case.

Criminal Possession and Criminal Sale of a Controlled Substance is a wide area of the law in New York State. Counties such as Westchester County, Rockland, Orange and Putnam have special task forces devoted to the investigation and arrest on various types of drug related charges. Aggressively defending a criminal drug charge in New York State is very important because the penalties are very severe.

To better understand the drug laws in New York State this Blog will review to types of charges that are most common in New York. Criminal Possession of a Controlled Substance and Criminal Sale of a Controlled Substance.

Criminal Possession of a Controlled Substance

Criminal Possession of a Controlled Substance (CPCS) is a crime. The only misdemeanor level crime is that of CPCS in the 7th degree. The remainder of the levels of this crime are all felonies.

In order to prove the crime of Criminal Possession of a Controlled Substance in any degree the government needs to prove "beyond a reasonable doubt" that the person charged knowingly and unlawfully possessed a controlled substance.

A Controlled Substance is any substance prohibited by law such as cocaine, marijuana, heroin etc.

Possess means to have physical possession or otherwise exercise dominion or control over the controlled substance.

A person knowingly possesses a controlled substance when that person is aware that he or she is in possession of the controlled substance.

Unlawfully means that the person had no legal right to possess that controlled substance.

In order to be found guilt of this charge of Criminal Possession of a Controlled Substance all the aforementioned elements must be proven.

Criminal Sale of a Controlled Substance

Criminal Sale of a Controlled Substance in all degrees are felonies.

In order to prove Criminal Sale of a Controlled Substance (CSCS) the same elements listed above but includes the additional element of "Sell" must be proven "beyond a reasonable doubt".

Sell is defined as to sell, exchange, give or dispose of to another. Sell also includes an offer or agreement to sell even of a sale does not occur, provided that, at the time of the offer or agreement, the person has the intent and ability to make the sale.

The Defense of CPCS and CSCS

To defend these charges the top drug criminal defense attorneys will set to attack each element of the charge. Possession, Intent and knowledge are all common areas to defend these charges. Further, the various suppression issues are attacked (search and seizure) the laboratory reports used and any speedy trial delays.

The top criminal defense attorneys will hold the government to their burden of proof to either have the case dismissed or negotiate a favorable plea bargain.

If you or a loved on has been charged with any drug related crime contact the law firm of Riebling, Proto & Sachs for a free consultation.

The crime of Driving While Intoxicated (DWI) falls under the New York State Vehicle and Traffic Law. In defending a DWI charge in New York State the best criminal defense lawyers will explain to their clients what proof is necessary for a conviction. The criminal defense of a DWI charge in New York State usually focuses on what proof the District Attorney has against the accused. In Westchester, Putnam, Rockland, Dutchess and Orange Counties the criminal defense attorney has an early opportunity to review the proof.

The Charge of DWI

There are several charges under the DWI laws in New York State. Those charges include DWI based upon a BAC reading of .08 or greater (VTL 1192.2), DWI per se based upon the officers observations (VTL1192.3), Aggravated DWI with a BAC of .18 or above (VTL 1192 (2-a)(a)), DWI with a child in the car (VTL 1192 (2-a)(b)) or even DWAI by drugs (VTL 1192.4). These charges can be either felonies or misdemeanors depending on the accused history and/or facts of the case.

Understanding the BAC .08 DWI charge (VTL 1192.2)

To understand DWI in New York State it is best to review the pattern jury instructions that a judge must follow to find an accused guilty of the charge. The top DWI lawyers or litigation attorneys in general know that these instructions are the most important aspect of any case.

The pattern jury instructions are also helpful for a non-attorney to clearly understand the issues since they were written for non-attorneys to clearly understand the charge in a jury trial situation. Even if there is no jury these instructions will be used for the judge to determine guilt.

DWI Defense Strategy

Prior to trial, the jury instructions must be consulted by the DWI attorney to determine if the government can prove the charges against an accused. All proof by the government must be "Beyond a Reasonable Doubt".

DWI - Misdemeanor/Felony BAC above .08 Jury Instructions

"Under our law, no person shall operate a motor vehicle while such person has a .08 of one per centum or more by weight of alcohol in the person's blood as shown by a chemical analysis of such person's blood, breath, urine or saliva"

This is what the government needs to prove. The instructions further define the crime as follows:

"Motor Vehicle means every vehicle operated or driven upon a public highway (private road open to motor vehicle traffic or a parking lot) which is propelled by any power other than muscular power"

"Operate a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion and when the motor vehicle is moving or even if it is not moving the engine is running"

BAC test "In this case the device used to measure blood alcohol content was ____. That device device is a generally accepted instrument for determining blood alcohol content". "You must consider the qualifications and reliability of the person who gave the test , the lapse of time between the operation of the motor vehicle and the giving of the test, whether the device used was in good working order at the time the test was administrated and whether the test was properly given."

When charged with any type of DWI crime it is essential to know the elements of the crimes (as noted above) and the proper defenses. An aggressive strategy is usually the best criminal defense.

Under New York Law all robberies are classified as felonies. The prosecution takes robbery cases seriously because of the violent nature of the crime. When one is charged with robbery it is important to have a criminal defense attorney defend the case as soon as possible.

In Westchester County, Putnam, Rockland or Dutchess counties often family members are the first to hear of an arrest or investigation for Robbery. It is at that point a consultation with a criminal defense attorney to defend the robbery charge is necessary.

Classes of Robbery in New York State

Robbery under Penal Law section 160.00 is defined as forcible stealing. A person forcibly steals property and commits robbery when in the course of committing a larceny uses or threatens the immediate use of physical force.

Robbery in the third degree is a class "D" felony and is charged when a person forcibly steals property.

Robbery in the second degree is a class "C" felony and includes forcibly stealing property AND is aided by another, physical injury is caused, a firearm is displayed or carjacking takes place. Robbery in the second degree is usually the most common type of robbery charged.

Robbery in the first degree is a class "B" felony and included forcibly stealing property AND there is serious injury to the nonparticipant, use of a deadly weapon, uses or threatens to use a dangerous instrument, displays a firearm.

Defense of a Robbery Arrest in New York State

The defense of a robbery charge is very complex. Often there are multiple co-defendants and/or weapons used and/or various injuries. The first step in the defense is to determine what exactly happened. The second step is to investigate what statements any of the participants made to the police. Third, the criminal defense attorney should challenge any identifications made of the accused. This is the foundation of the defense of any robbery charge in New York State.

Legal Consultation for Robbery Charge

The most important aspect to the defense of a robbery case is to speak with your lawyer early AND often. An accused will need to speak with their criminal defense attorney on several occasions until a legal defense strategy can be determined. Lawyer contact is very important.

Punishment for a Robbery Conviction

There is a wide range of sentences for a person charged with robbery but because all robbery charges are felonies State prison can be a consequence. The best criminal defense attorneys will clearly explain the various sentences which may or may not include State prison.

New York law has very strict Burglary laws. It is important for the criminal defense lawyer to understand the meaning of the crime and recognize potential defenses.

The facts are extremely important as counties in New York State treat burglary seriously. A charge of burglary in Westchester County, Putnam, Rockland and Orange County is vigorously prosecuted and the criminal defense attorney needs to be aggressive in the defense.

Burglary

Burglary in the Third degree -- A person must knowingly enter or remain unlawfully in a building with intent to commit a crime therein. A Class "D" Felony.

Burglary in the second degree -- Includes the elements of burglary in the third degree and involves an explosive or deadly weapon, causes physical injury to another person, displays a dangerous instrument or displays a firearm. A Class "C" Felony

Burglary in the first degree - Includes burglary in the second degree but the burglary occurs in a dwelling. A dwelling is a building which is usually occupied by a person lodging therein at night. A class "B" Felony

The defense of a burglary case is very fact specific but also the prosecution must prove the accused "knowingly" enters or remain unlawfully with the "intent" to commit a crime therein. These can be difficult elements for the prosecution to prove and the top criminal defense attorneys need to review the facts of the case to determine the weaknesses for the prosecution.

If you have any questions about the crime of burglary or the defense contact a criminal defense lawyer to explain the law and the options regarding how the case will proceed.

In New York State criminal defense law the criminal defense attorney needs to understand all areas of the Larceny Laws. Larceny falls under Article 155 of the New York State Penal Law and is broken down into several areas. This blog can not review every aspect of the New York State Larceny Laws but will provide a basic understanding. For an in depth review of the laws you should contact an experienced criminal defense attorney.

Larceny

Under PL 155.05 larceny is defined "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof".

Larceny can include larceny by trick, embezzlement, false pretenses, issuing a bad check, false promise, extortion or even larceny over lost property. The prosecution will use one theory or several to convict a person under the larceny statute. The top criminal defense attorneys need to investigate the charge and potential prosecution theory or legal strategies to defend the case.

Types of Larceny

In determining the proper charge the police or District Attorney's Office will review the entire case but usually the charge will directly relate to the amount of money or value of property stolen and/or the method of theft.

Grand Larceny in the Fourth Degree -- Value of property over $1,000.00 or the property is a credit card, debit card, public record, secret scientific material, obtained by extortion etc. Grand larceny in the fourth degree is an "E" felony.

Grand Larceny in the Third Degree -- Value of property over $3,0000.00 or involves theft of an ATM machine or its contents. Grand larceny in the third degree is a "D" felony.

Grand Larceny in the Second Degree -- Value of property over $50,000.00 this is a "C" felony.

Grand Larceny in the First Degree -- Value of property over one million dollars. This is a "B" felony.

Petit Larceny -- "A person is guilty of petit larceny when he steals property". This is a class "A" misdemeanor. Petit larceny usually encompasses shoplifting types of crimes.

If you are charged with any type of Larceny crime it is very important to contact a criminal defense attorney as the prosecution needs to supply necessary paperwork in a timely manner to prove the crime and all defenses need to be investigated early.

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.

Search and Seizure

As criminal defense attorneys in White Plains, New York our office is fortunate to practice criminal law in Westchester, Orange and the surrounding counties. Doing so there is a wide practice by police departments and courts regarding search and seizure and suppression. This criminal law blog provides a basic update on new search and seizure laws in New York.

One of the most important aspects of criminal defense law is moving to suppressing illegally obtained evidence from an accused. If an accused 4th Amendment rights were violated suppression will result and in many instances the prosecutions entire case will fail.

The top criminal defense attorneys in New York will review any case in which evidence is seized for potential suppression. This includes weapons, drugs, urine or blood samples or any other evidence of a crime.

Search and Seizure comes in many different forms. A search of a person, car, house, office, business, bags or even garbage. It is important to know the search and seizure law in New York as it pertains to each of the above examples as every factual situation is different. Below are some examples of recent search and seizure case law in New York.

Automobiles

In People v Omowale, 83 AD3d 614, the Court held that evidence should have been suppressed when the defendant was arrested in 2007 after officers approached him for double parking, where the defnedant did not offer the driver's license of another person to the police as his own or impersonate anyone. While it is likely the defendant considered passing off the license he was holding as his, holding it in his hand did not constitute a punishabkle attempt to commit criminal impersonation.

Search of Backpack

In People v Evans, 922 NYS2d 403 it was held that the court shouyld not have denyed a criminal defense motion to supress beacuse there was no proff of exigent circumstances that would justify the warrantless search of the defendant's closed backpack. There was no emergency circumstances where the defendant and two others were arrested for smoking marijuana in plain view and they were all in handcuffs and surrounded by police officers and a 12 foot high fence when the officers decided to search the backpack. There was no evidence that the officers feared for thier safetyduring the arrest of that the defendantor his freienbds acted in an aggressive or hostile manner nor did the officer's think there was any contraband in the backpack. Lastly, there was no evidence that the defendant could have gottent o the backpack to destroy evidence.

Search of Abandoned Objects

In People v Harris, 83 AD3d 1220, the court held that when the defendant deposited trash in the closed dumpster of a private apartment complex where he lived for removal by a private hauling company rather than putting it on the street for removal by a public garbage department there is no distinction between the two. There is no expectation of privacy in trash left in a public space for removal by a third party. Trash disposed of in a communal place where others can access it with the understanding that it will be removed by a third party is deemed abandoned.

Search Warrants

In People v Gavazzi, 921 NYS2d 742 the court found a search warrant to be invalid where on the warrant the wrong court was listed, it ws illegibly signed and contained no other information by the issuing court it failed to comply with the requirements of the Penal Law.

In the criminal defense if seized property the criminal defense attorney need to review all of the surrounding facts and if necessary prepare a suppression motion. The fine details of the case are very import to the court in determining suppression.

The Criminal Courts

In New York State the criminal court system can be very confusing. Often New York residents charged with a crime and out of state criminal defendants and/or their family's are confused over the process and the court system in general. Every criminal defense attorney needs to know the entire criminal court system in New York and even the extension of various offenses in the New York Family Court. This is a review of those courts.

Superior and Local Courts

The New York State Criminal Procedure Law (CPL) defines Superior Courts (County and Supreme Court) and Local Criminal Courts (New York City Criminal Court, City Courts, District Courts (Long Island), Town Courts and Village Courts).

Superior Courts hear felony cases and Local Courts hear misdemeanor cases. Where one is arrested and for what crime dictates the Court.

The Local Court

A defendant charged with misdemeanors only will start and stay in the local criminal court. A defendant charged with only felonies can start in a Local Court but must be prosecuted in a Superior Court. If there are multiple charges including at least one felony all the charges must be heard in the Superior Court.

For example, a DWI arrest in the Town of Bedford, New York will be prosecuted in the local Town of Bedford Justice Court. If the DWI charge is not a felony the entire case will be heard in the Bedford Justice Court. If the DWI charge is a felony the initial proceedings will start in the Bedford Court but must be prosecuted in the Superior Court. If the felony charge is reduced to a misdemeanor the case will stay or be returned to the Bedford Court.

Another example, the Westchester local City courts include, White Plains City Court, Yonkers City Court, Mount Vernon City Court, Rye City Court, New Rochelle City Court and Peekskill City Court.

Local Town Courts include Mount Pleasant, Rye, Somers, Mount Kisco, Greenburgh, Ossining, Bedford.

The Village Courts include, North Castle (Armonk), New Castle (Chappaqua), Tarrytown, Sleepy Hollow, Elmsford, Ardsley, Dobbs Ferry, Irvington, Bronxville, Scarsdale, Larchmont, Mamaroneck, Harrison, Port Chester, Rye Brook, Croton on Hudson, Hastings on Hudson, Tuckahoe, Cortlandt, Pelham

The Superior Courts

Superior Courts hear Felony cases in Supreme or County Court. At times a Superior Court judge may assume the role of a Local Court judge to accomplish some procedural aspect of a case but the important point to remember is that felonies are heard in Superior Courts.

Felony Cases

In New York City felonies are usually immediately indicted by a Grand Jury so that they will be heard exclusively in the Superior Court. Outside of New York City most felonies are not immediately indicted and proceed in the local criminal court by Felony Complaint as opposed to Indictment.

For example, a defendant is charged in the City of Yonkers with a drug possession felony charge. The defendant will be arraigned in the Yonkers City Court, bail can usually be set and the defendant is entitled to a Felony Hearing to determine if the charge is supported by reasonable cause. Unless the felony is reduced to a misdemeanor the case will eventually be heard in Superior Court. If the defendant is indicted the case is transferred to Superior Court.

Specialized Courts

In New York State, depending on the County, a case may be transferred to a Specialized Superior Court even if the charges are misdemeanors. These specialized courts include Domestic Violence Courts, DWI Courts and Drug Courts. Not every County has the same Specialized Courts nor does every local court transfer cases to these Specialized Courts. This is something that needs to be reviewed on a case by case basis with a Criminal Defense Attorney.

Criminal Court and Family Court

In matters involving offenses committed against a family member the complainant can proceed in both the Family Court and the Criminal Courts in New York State. The complainant can also proceed in just one of these courts.

Having matters in both of these Courts can be complex. It can raise many issues involving various legal strategies and can impact on various custody and/or visitation rights. The top criminal defense lawyers will know the interplay between these two courts.

For example, a Family Offense Petition filed in the Putnam County Family Court can also be prosecuted in the local Putnam county criminal court. The charge will be the same usually with the exact set of factual circumstances. For example, criminal mischief (damaging the property of another) or Harassment. Issues involving statements, double jeopardy or testimony in Court can impact how these cases are resolved.

The New York State Criminal Courts is can be confusing because there are many different types of courts, Counties and procedures vary. A good understanding of the process and the courts will will help in making any decision for yourself or a loved one much easier. Always consult with a criminal defense attorney.

Law Enforcement

In New York State there are several law enforcement agencies that investigate criminal activity. These include the New York State Police, County Police, local (city, town or village) police departments, MTA Police, District Attorney Investigators and the Department of Environmental Protection. Those officers are recruited from a variety of places and undergo similar training. If one finds themselves subject of ANY law enforcement investigation they must immediately contact a criminal defense attorney.

Criminal Defense

The pre-arrest criminal defense is very important, however some criminal defense attorneys will not take clients who are under investigation and will tell the person "call me when your arrested." This is bad advice. A criminal defense attorney can provide help at any stage of the pre-arrest investigation. The earlier the criminal defense attorney can get involved the more effective the defense can be to help the client.

Pre-arrest the criminal defense attorney can contact the law enforcement agency, the District Attorney's Office and most importantly keep in close contact with the client regarding any arrest or investigation. Having a criminal defense attorney for advice often puts client's at ease by knowing they have someone to help during a stressful time.

What to do if you are under police investigation

DO NOT talk to any law enforcement without first speaking with a criminal defense attorney. The best criminal defense attorneys will tell you that is the golden rule in criminal defense.

Contray to popular belief, the police do not need to read a suspect their Miranda warnings, under certain circumstances, before questioning. Miranda warnings are usually only required during a custodial interrogation.

Law enforcement are free to lie to a suspect during questioning. The police may comment "We have the other guy, he told us what happened so you can too" or "your fingerprints are all over the weapon". This is designed to get the suspect to make a statement.

Also, the investigators will use comforting language such as "we are here to help you" or "we are going to ask you questions that we already have answers to, so its OK to be honest" Good Cop/Bad Cop is also a common practice.

The most common way that an investigator will convince a person to speak to them is by saying "we don't want to arrest you but if you don't talk to us and explain what happened we are going to arrest you" or "if you tell us what happened I can call the judge and you can go home or I'll call the DA and have them drop the case". This is all designed to have the suspect make a statement.

Again, follow the golden rule and never speak with law enforcement without speaking with a criminal defense attorney first.

Orders of Protections

In New York State, including Westchester, Putnam, Rockland, and Orange counties there are two types of Orders of Protection issued by the criminal and/or family courts, Temporary Orders of Protection (TOP) and Final Orders of Protection (FOP). As the names suggests generally a TOP issued during the case and a FOP is issued at the conclusion of a case.

The criminal defense attorney must be aware of the different types of Orders of Protections and the complex terms within the document. The criminal defense attorney must also be aware of the requirements of service of the Orders of Protection and how an Order of Protection can be used as a basis for the crime of Criminal Contempt should one be accused of violating an Order of Protection. For questions on those exact issues contact a criminal defense attorney as the laws can be complex and are beyond the information provided in this Blog.

Criminal Contempt

When one is accused of violating an Order of Protection the charge that results is Criminal Contempt. There are various degrees of Criminal Contempt but the theory is the same, that a person was issued an Order of Protection and violated that court order in some manner. Criminal Contempt is a separate and distinct crime that can result in incarceration.

Using an Order of Protection as a Sword instead of a Shield

The purpose of an Order of Protection is to help a person in need of protection (Shield). However, some protected parties use their Order of Protection as a weapon against the accused (Sword). This is a complex area regarding the purpose of an Order of Protection. In this case, it is more important than ever to seek the advice of a criminal defense attorney to resolve this issue. There have been several examples of a protected party following an accused, baiting an accused into meeting with them or contacting them in an effort to catch the accused in a violation leading to a new arrest.

Sufficiency of the Charge (Criminal Contempt)

In People v Ferenchak, ___ AD3d ___, the Court held where a misdemenor information alleging violation of an order of protection containted no allegation that the defendant was served with the Order of Protection, was present in court when it was issued, or signed it and the supporting deposition fails to reference the order or Protection, the misdemeanor information was jurisdictionally defective for failure to assert facts that if true would establish the defendant's knowledge of the Order of Protection.

Modification of Orders of Protection

Once an Order of Protection is issued to can be modified by the same Court and sometimes other courts as well. Usually this is done by the criminal defense attorney during a regular court appearance or by filing a formal motion.

In People v Knight, ___AD 3d___, the oral modification of an order of protection issued at sentencing which prohibited the defendant from every entering the county again or traveling within 50 miles of the home of the person that the order was meant to protect had to be stricken.

Orders of Protection are complex documents and need to be carefully reviewed with an experienced criminal defense attorney. It is important to understand the order of protection so it will not be violated and an experienced criminal defense attorney can discuss the methods of how to modify the order of protection or ask for its removal.

In New York State the laws and policy regarding domestic violence are becoming more complex and requires special attention by the New York Domestic Violence Defense Lawyer. Domestic Violence is a criminal act against a family member, partner and/or boyfriend/girlfriend. Even if the relationship has ended the criminal action may still be considered a "Domestic Violence" case by the prosecution and the Courts.

The most common Domestic Violence charges are:

1. Assault or Attempted Assault
2. Aggravated Harassment
3. Harassment
4. Stalking
5. Endangering the Welfare of a Child
6. Sexual Assault
7. Rape
9. Menacing
10. Criminal Contempt (Violations of Orders of Protection)
11. Criminal Mischief

The Prosecution of a Domestic Violence Case:

In Westchester, Putnam, Orange, Dutchess, Rockland and Bronx Counties the District Attorney has special divisions devoted to Domestic Violence cases. Those divisions are usually well staffed with Assistant District Attorney's, police officers and non-attorney aids.

At arraignment the prosecution will routinely as for the Court to issue an Order of Protection in the favor of the complaining witness. Courts will routinely grant the prosecution's request. These Orders of Protection will prohibit an accused from contacting the other party or their children. The accused may also have to stay away from their home. It is very important to have a criminal defense attorney at arraignment to challenge any Order of Protection.

The Court's may require an accused at arraignment (even before any guilty is determined) to enroll in a Domestic Violence Program. These programs can be very time consuming, expensive and may not be necessary for the accused. Again, it is very important to have a criminal defense lawyer with you at arraignment to challenge the Court's requirements.

It is also possible that the Domestic Violence case will be transfered to a special Domestic Violence Court that hears only those types of cases.

While the Domestic Violence case is pending the criminal defense attorney must work quickly to determine the nature of the charge, the evidence against the accused, the type of Orders of Protection in place and any programs ordered by the court to properly defend the case. Contacting an experienced criminal defense attorney with Domestic Violence experience is very important.

Criminal Court and Family Court

A Domestic Violence case can be brought either in Criminal Court or Family Court. The Domestic Violence attorney must have an understanding of both courts to adequately assist in the defense of the matter since the issues usually will involve both courts. For example, if a wife files an assault charge against her husband the husband may not be able to see his children as a result of a criminal court Order of Protection therefore it is necessary to file a petition in Family Court to obtain custody/visitation rights. It makes sense to have the same attorney in both actions to coordinate the defense.

The Defense of False Domestic Violence Claims

Unfortunately, sometimes claims are made against a party that are false. If there is a bad breakup, anger over a fight or even to gain leverage in a custody or divorce action this can be motive for a false Domestic Violence claim. If the claims are false the above process will continue. In these situations the Criminal Defense Domestic Violence lawyer will focus on key claims made by the accuser and any motive to lie. Usually a false complaint is an exaggeration and the claims and can not be supported by the evidence.

Contact a criminal defense domestic violence attorney as soon as possible if you or someone you know is facing a charge. It is important to the defense to act quickly once the case has begun.

Witness Statments
In New York State during a criminal trial or a criminal pretrial hearing the prosecution is required to give to the defense any prior written or recorded statements of a witness who the prosecution will call to testify at trial or during a hearing. this is known as the Rosario Rule pursuant to People v Rosario, 9 NY 2d 286 and CPL 240.44, 240.45.

Reason for the Rosario Rule
A prior witness statement is useful during cross examination. Many times prior statements will contain omissions, contrasts or contradictions that can but used by the criminal defense attorney to attack the prosecutions witnesses. At the very least prior inconsistent statements can be used to attack the witnesses credibility.

Types of Rosario Written Statements
1. Police Officer's notes
2. Notes made by the prosecution during the interview of a witness
3. Affidavits in support of search warrants
4. Videotaped interviews
5. Tape recordings, including voicemail messages
6. Arrest reports
7. Police "blotters"
8. 911 tapes
9. Grand Jury testimony
10. Undercover officer's notes

It is important for the criminal defense attorney to review these statements and use them to attack the prosecutions witnesses. The top criminal defense attorneys pay very close attention to prior statements since it is common that stories may change over time and it can give insight into the prosecutions strategy of the case.

Defense Obligation
The criminal defense attorney also has an obligation to turn over defense witness's prior recorded statements. Recorded statements of the defendant do not and must not be disclosed. A criminal defense attorney should not ask a witness to write any notes or take notes to limit the information that may need to be disclosed to the prosecution.

The Rosario rule in an important tool in every criminal case including DWI trials and even traffic matters.