•The New York City Police Have Left Word or are at the Door because they want to "talk" to you.
The ultimate and easiest answer is of course to contact a criminal defense lawyer immediately," but here is why:
The first and most important thing you need to come to grips with when the police have left word that they are looking for you to "speak" about something is that in all likelihood, they are not interested in coming to tea.
The odds are they want to arrest you. In most cases, by the time law enforcement makes it personally known to you that they want to "speak" with you, the decision to arrest you has already been made.
This bears repeating.
The decision to arrest you has already been made.
This bears repeating again.
The decision to arrest you has already been made.
I repeat myself because so many people have needlessly caused themselves so much misery because they could not accept that the decision to arrest them had already been made.
Nobody wants to be arrested. People are afraid of being arrested (and justifiably so). Therefore, people will bend over backwards in their own minds to convince themselves that if only they can sit down and calmly discuss things with the police that everything could be straightened out.
The police know this and so will go out of their way to take advantage of this. They will always use nice phrases like "straighten everything out", "get it out in the open", "cooperate" and a dozen other meaningless buzzwords when contacting people they already intend to arrest. They won't say, "Could you have your son contact us so that we can get him to admit to a B violent robbery for which he faces a mandatory minimum of 5 years in prison." Instead they will say, "We would like to straighten out a little problem involving your son and another kid's lunch money".
The desire to believe that you are not going to be arrested is so great, and the belief that if you are innocent you couldn't possibly get arrested is so great, that some people who read this very article, when personally faced with the prospect of police wanting to "talk" to them, will choose not to believe what I have written. Instead they will choose to "cooperate" with the investigation -- and most of them will severely damage their own situations and create a higher than necessary likelihood of bad things happening (including potential prison time).
This should obviously not be taken to mean that anyone should ever flee when the police start leaving messages to contact them. Quite the opposite. Running from an investigation is never a real answer and inevitably causes untold greater difficulty. There is a difference, however, between running from an investigation and making uncounseled statements to the police in a matter in which you or a loved one could end up being wrongly accused of a crime.
The most sensible course of action when you are being sought by the police is to contact a criminal defense lawyer immediately, if possible, so that the criminal defense lawyer can act as an intermediary between you and the police.
A criminal defense lawyer can in many cases find out definitively whether or not you are the target of a criminal investigation or whether you are simply being sought as a potential witness to some criminal activity.
The determination of whether you are being sought as a witness or as a target is nowhere near as clear and easy a determination as you might think. If you agree to speak to police officers on the theory that you are a "witness" you had better be extremely sure of yourself. Keep in mind that your idea of a "witness" as a non-lawyer may be different from the police's idea of a "witness". Non-lawyers tend to imagine that everyone is a potential witness who didn't actually do the obvious criminal act.
For example, non-lawyers perceive the people who are watching two people fight as "witnesses". The police may (and frequently do) treat people who watch two people fight as "accomplices" to whoever wins the fight. If the police treat you as an accomplice and not a witness, then you can be arrested as if you threw the punches yourself under a theory called "acting in concert". People are often amazed to find themselves arrested under such circumstances when they thought (and may even were told) that they were talking to the police about the fight they "witnessed". To be sure they may have defenses to the charges, but that doesn't stop the police from arresting them and that doesn't stop the prosecution from prosecuting them and forcing a jury trial if necessary.
Furthermore, once you have a criminal defense lawyer involved on your behalf, you save yourself the trouble of having to listen the enormous amount of complete nonsense you will likely have to listen to from the investigating officer or detective. Nothing the police say to you as a potential target in a criminal investigation can be trusted. Nothing. Lies, deception, and trickery are all time tested, legal, classic methods employed by police when attempting to get suspects to make statements or otherwise incriminate themselves. Many of the techniques employed by the police are quite powerful and tempting to believe. Therefore, the less you are subjected to it the better for you.
In those rare cases in which you are contacted before the decision to arrest has been made, they are usually attempting to see if they can do or say something to you that will convince you to make their case for them. If there is a criminal defense attorney involved, then you will be insulated from such conversations. The police will not get any damaging information from you and you may actually never be arrested.
One of the biggest dangers of speaking to the police is that you cannot know what they know already. They may know far less than you think going into the interview. Therefore, you may tell them things they didn't actually know and may never have known but for your own words.
A classic example of this is when someone "cooperates" with the police, gives a statement that denies guilt, but still nevertheless ends up convicting him. The "I was there and saw the whole thing, but I didn't do it" statement is seemingly harmless because the upshot of it is that the defendant denies guilt. So what's the big deal? What if the identification evidence that the defendant was the person was very weak? What if the police had some doubt in their minds about whether or not the suspect was actually present? That doubt has been removed from the defendant himself who conceded that he "was there". Now the only thing that remains to be determined is the defendant's role.
They may also know far more than you think they do.
They may also lie to you about what they know or about what other people said. By the way this is considered perfectly legal and even encouraged as good police work. For example, a police officer may tell a suspect that the person he stabbed pulled through the surgery and is going to be all right. The suspect, worried about a murder case, may feel it "ok" then to admit to having actually stabbed the person. If in fact the victim had actually died in surgery, the police have a nice confession on a homicide case.
The bottom line is that as a suspect in a criminal case, you have no idea whether any little thing you say will end up connecting you by some bizarre coincidence to a piece of evidence that just might get you wrongly convicted of a hideous crime.
One thing not to worry about excessively is that your request for a lawyer or insistence on having a lawyer pre-arrest will somehow tip the scales and cause the police to "know" that you are guilty, and therefore cause them to arrest you when they might not have arrested you otherwise. Remember the first assumption when you are contacted by the police (or have you forgotten already?) -- THE DECISION TO ARREST YOU HAS ALREADY BEEN MADE. They already think you are guilty.
You are far less likely to be harmed by the assumption that the police want to arrest you because if you accept that assumption then you will immediately contact a criminal defense lawyer who will help you determine whether or not it is true. If it is not true, then great. You overreacted but you protected yourself.
Finally, you need to contact a criminal defense lawyer. You don't need a real estate lawyer. You don't need the lawyer who wrote your will or the lawyer who sued your neighbor for denting his car. You need somebody who really knows what he is doing in the criminal justice system.
The police officer who contacted you does nothing but operate in the world of the criminal justice system. The prosecutor who will prosecute you if you are arrested does nothing but operate in the world of criminal defense. The judge who will rule on your case as it makes its way through the criminal justice likely does almost nothing but criminal cases.
So then why, on God's green earth, would you want your one advocate in the criminal justice system, the one person who will defend you against an army of professional police and prosecutors to be anyone other than someone with significant criminal defense experience? Aunt Martha's brother-in-law who does "a little bit of everything" is going to have to play catch-up against people who do nothing else.
I have been a criminal defense lawyer for nearly 20 years now. When I bought a house, I hired a real estate lawyer who does a lot of house closings. In theory, I could have handled it myself and saved some money. After all, I am a lawyer. According to the bar association I am capable and licensed to handled just about any legal matter in New York State, certainly a house closing. But I would have been a fool. Criminal defense in New York City is what I know! In the rapid-fire unforgiving fury of a criminal trial in New York City where my client's freedom is at stake I am as confident and comfortable as if I were in my own living room. I say these things not solely to convince you to contact me if you are faced with police contact (although I certainly would not object if you did), because there are a great many wonderful criminal defense lawyers in New York City any one of whom would be in a position to help you through the difficult times associated with police contact. But do make sure that you find someone who actually practices criminal defense. Criminal defense is not a hobby.
•ROBBERY
New York State currently divides robbery into three major categories:
-First Degree
-Second Degree
-Third Degree
Robbery in the First Degree is a class B violent felony in New York. This is the most serious form of robbery and it carries a 25 year maximum prison term upon conviction. Robbery in the First Degree includes what most people imagine when they think of robberies: a gunpoint robbery of a store clerk or bank teller.
Robbery in the Second Degree is a class C violent felony. This is the second most serious form of robbery and it carries a 15 year maximum prison term upon conviction. Robbery in the Second Degree might be called "group robbery" because its most frequent use comes when multiple people work together to commit a robbery.
Robbery in the Third Degree is a class D non-violent felony. This is the least serious form of robbery in New York, although it still carries a maximum of 7 years in prison upon conviction.
Loosely and generally, robbery in New York is the use of force to illegally obtain someone else's property. Depending on how much force is used (or threatened) and what is used to do the forcing, the robbery is more or less serious.
Most people imagine a masked gunman demanding money from a store clerk or bank teller when they imagine a "robbery". While this "classic" idea of robbery is certainly an example of something that might well be classified as a robbery in New York State, a much wider set of situations is also included in the New York State laws on robbery, including many situations that people might dismiss as "not that serious".
For example, many people seem to be under the impression that the law recognizes some kind of "just kids being stupid" exception to the laws of robbery. Young people (especially junior high and high school students) often engage in unwise, childish, sometimes bullying behavior that can and often does end up with someone being arrested for "robbery".
Schoolyard bullies often commit acts that the laws of New York might well describe as violent felonies for which they could be treated as adults by the criminal justice system. The school bully who pushes another student to the ground and then takes his milk money (or notebook, or hat, etc.) has quite likely committed at least Robbery in the Third Degree. If one of the bully's friends kept a lookout while he did it, they both may be guilty in New York of Robbery in the Second Degree and both may face 15 years in prison as adults (even if they are only 16 years old).
Parents in such situations are often amazed and horrified to discover that such "routine" school behavior can result in someone facing 15 years in prison. Parents may feel that since such incidents likely occur on a regular basis in schools around the world, their child is being unfairly singled out for prosecution.
But the fact remains that there is no "just kids being stupid" exception or defense to the robbery statutes in New York. It may well seem unfair that only a few students may end up being prosecuted, but that is what happens.
The District Attorneys Offices in New York City take robbery cases very seriously. If you are charged with a robbery you need to take it very seriously as well.
Don't kid yourself into thinking that simply because the victim was not injured or that the victim got his property back or that not a lot of property (or very valuable property) was lost that you will "get off easy".
Robbery charges are among the big leagues of criminal charges.
If you are charged with robbery of any degree in New York City, you need a lawyer and you need a lawyer right away. It's that simple. It's that serious.
• DRIVING WHILE INTOXICATED (DWI) Cases in New York
Queens, Manhattan, Brooklyn, Nassau, Westchester, and Putnam County
Driving While Intoxicated is a Crime in New York that creates a number of issues and difficulties for people who are accused. Driving While Intoxicated, or DWI cases in New York can range in seriousness and complexity from something that can be dealt with in relatively short order without significant inconvenience to full blown felony charges carrying potential long term state prison sentences. Trials of Driving While Intoxicated cases can, under some circumstances, be among the most specialized and complex, expert driven trials or a comparatively far simpler trial essentially boiling down to a determination of who was driving the car in question.
In order to know where your New York Driving While Intoxicated case fits in the grand scheme of driving while intoxicated cases, you ought to consult a new york criminal defense lawyer with experience in the area of driving while intoxicated cases.
Driving While Intoxicated Cases Have Many Implications Beyond the Criminal Case
In the New York Metropolitan Area, Driving While Intoxicated Cases create a number of other problems, some of which can require retaining counsel separately from the criminal case itself.
For example, if you are arrested for Driving While Intoxicated in New York City or Nassau County or Westchester or Putnam County you could face the following additional problems:
1. Refusal Hearing
If the police claim that you refused to take a breath or blood test, then the Department of Motor Vehicles will be holding a hearing SEPARATE AND INDEPENDENT FROM THE CRIMINAL CASE that could result in your license being revoked for six months. Although the burden is low and the defenses are limited, it is possible to win these hearings. Furthermore, they do offer an opportunity on occasion to cross-examine the arresting officer and obtain some critical paperwork in the case.
2. Car Forfeiture
The police departments may seek to forfeit the car they claim was used for the driving while intoxicated. Forfeiture is another SEPARATE AND INDEPENDENT court proceeding in which the police department is allowed to sue you and, if successful, keep your car. Forfeiture actions are not brought by the District Attorney's Office. They are brought by the Police Department itself. The outcome of the criminal case is totally irrelevant to the forfeiture action by the police. In other words, you could win your driving while intoxicated case at trial in New York, and the police could still sue you for your car AND WIN. The forfeiture lawsuit is a civil lawsuit subject only to the relatively small burden of proof of preponderance of evidence. A victory in criminal court merely means that the Government did not meet the burden of beyond a reasonable doubt. Forfeiture actions are real lawsuits in which you will have to decide whether you will hire a lawyer to defend the suit.
3. Insurance Premiums
A plea or conviction to a driving while intoxicated related offense could result in an increase in insurance premiums.
4. Suspension of License Pending Prosecution
In some circumstances, simply being accused of driving while intoxicated can result in the suspension of your license even before you have been convicted of anything. Since our courts have decided that having your license suspended is not a punishment, it has been held that suspension of your license before you have been convicted does not run afoul of the presumption of innocence.
5. License Suspension or Revocation on Conviction
A plea or conviction to a driving while intoxicated related offense will result in difficulties with your license to drive in New York that could range for a relatively brief suspension to a lengthy revocation.
6. Enhanced Sentencing in Future
A plea or conviction to a driving while intoxicated related offense will create a situation that could enhance the potential problems you would face if you were arrested for driving while intoxicated again.
Different Versions of Driving While Intoxicated in New York
Driving While Intoxicated comes in different forms in New York, "common-law" and statutory.
Common-Law Driving While Intoxicated
Common-law driving while intoxicated in New York allows you to be accused of driving while intoxicated even though there is no scientific test about your blood alcohol level. According to the law, whether or not a person is intoxicated is the sort of thing that nearly anyone can give an opinion about without being an expert. It is the sort of thing that the law says nearly everyone is an "expert" in. That means that you could be convicted of driving while intoxicated by the testimony of a police officer who simply said that in his opinion you were intoxicated. Of course at such a trial, your lawyer would have an opportunity to challenge the assumption of the police officer and point out the possibility of the alternative assumption that you were not intoxicated.
Statutory Driving While Intoxicated
Statutory driving while intoxicated in New York permits you to be accused of driving while intoxicated with scientific proof of intoxication based on the level of alcohol present in your blood. Under current New York State law, the point at which you are intoxicated is when your blood alcohol level is .08 percent or above. Proof of this blood alcohol level can be accomplished by evidence of any one of a variety of tests a person accused of driving while intoxicated can be asked to take after arrest. The most common test in New York is a Breath Testing that, according to its proponents, analyzes your breath and converts the results to blood alcohol level. These machines (and there a few different versions of them) all make certain assumptions about the way people absorb alcohol into their systems. These assumptions are subject to dispute and there are a variety of means to attack the results of these machines. Attacking the results of the machines, however, usually means hiring one or more expert witnesses. Frequently people accused of driving while intoxicated are unwilling or unable to obtain an expert. Expert witnesses to attack the breath machine's results are frequently employed in more serious driving while intoxicated cases, like for example felony driving while intoxicated cases.
The Government prefers to use the statutory form of driving while intoxicated because they like being able to produce scientific evidence of the intoxication as opposed to relying on police statements that the accused had "bloodshot watery eyes, slurred speech and was unsteady on his feet." There are occasions, however, when for any number of reasons, the actual scientific result is not permitted to be used, and the only thing left is the common law case. From the defense perspective, a common law case is probably a better case to take to trial because it is easier to challenge the assumptions of a police officer than it is to challenge the printout of a machine.
•New York City DOMESTIC VIOLENCE CASES
If the police or the District Attorney's Office labels your case a "domestic violence" or "special victims" case, then your case takes on layers of difficulty not associated with other cases in the system (even compared with cases of seemingly greater violence).
The real reason these cases take on extra layers of difficulty is a simple, basic motivation for human behavior: FEAR. Every agency that comes into contact with a domestic violence case (police, prosecutor, and judicial) is driven by FEAR of the consequences if THIS case is going to be THE CASE.
THE CASE is the seemingly "minor" domestic incident in which the accused walks away from the courtroom, returns home, and murders the complaining witness. Such cases, however rare and unpredictable they are, universally make headlines throughout the city.
The Judge is blamed, the Police are blamed, and the Prosecutors are blamed because it is easy to blame them. (Why the criminal isn't blamed is a good question). Careers are held back and even ruined as a result of such publicity. Is it totally insane? Is it wrong and unfair? Of course. But that is the FEAR that is underneath the way the system treats nearly all domestic violence allegations.
And as you might expect, a system driven by FEAR leads to unexpected, illogical results.
The Police
The first step in this fear-driven process is police interaction.
Police officers who respond to a call of domestic violence (regardless of who makes the call) are required by police department policy to make an arrest (or at least this what the police will often will say to the people they arrest). This policy exists because the police don't want to be blamed for failing to arrest a person who five minutes later murders his/her spouse. Everyone seems to believe that the police are or ought to be able to predict the future.
Initially such a police policy might even seem a reasonable response on the "If it saved one life..." theory. The problem of course, is that such a policy sweeps up vast numbers of idiotic, childish, stupid situations into the criminal justice system. It is a shining example of just how bad the criminal justice system is at dealing with family issues.
The police policy is really a fear-driven means to pass the responsibility for each case to someone else, namely the District Attorney's Office. "Arrest Everyone and Let the Prosecutor Sort 'Em Out" is a fair summary of the Police policy. Having arrested everyone possible, the Police will never be able to be held responsible by the New York Post for a later murder. "All we can do is arrest them. It's up to the Prosecutor to make sure they get punished," the Police Department will say.
The Prosecutors
And the police approach might "work" if the Prosecutor did "Sort 'Em Out". But as a practical matter, the Prosecutor doesn't "sort 'em out" for the same reason the police don't want to "sort em out". They don't want to take responsibility for using their judgment.
Once someone actually uses his discretion to make a decision based on reason and logic, that person is subject to being held responsible by the New York Post if it turns out that it was THE CASE.
So the District Attorney's Office takes a "Prosecute everyone and let the Judge or Jury sort em out" approach. At arraignments, for example, the Prosecutors as a general rule request bail in just about every single case they label domestic violence, regardless of the defendant's background.
This forces a decision on the Judge, who must actually make a decision.
By requesting bail the Prosecutors protect themselves from criticism by the New York Post by making it possible for them later to say "We requested that the Judge set bail. We did all we could do." If the Judge decides to release a person without bail, then the New York Post responsibility rests with the Judge.
The Judge
Now this of course places the Judge in a politically awkward position. The Judge must actually use his or her discretion. Therefore, the judge is subject to New York Post "Judge is responsible for all future actions of people who come before her" criticism.
How Judges respond to this difficulty depends on the personality of the Judge. Sometimes Judges will give the Prosecutors exactly what they ask for. In other words, if the Prosecutors ask for $500 bail, the judge will set exactly that. This is actually an interesting way of attempting to deflect New York Post criticism. If the defendant makes bail and kills someone, the Judge can always take the position that he set exactly what the Prosecutors asked for and that he must assume that the Prosecution evaluated the case (and the defendant) when requesting the bail. The Judge can take the position that if the Prosecutors had requested higher bail he would have set higher bail and the tragedy would never have happened.
Temporary Orders of Protection (TOPs)
Add Temporary Orders of Protection to the above recipe for seemingly absurd results and you begin to gain an understanding of just how terrible Criminal Court is at dealing with domestic issues.
A TOP is an order from a Court to stay away from another person and to avoid doing what is otherwise illegal anyway. Violating a TOP is now a felony offense in some situations and a misdemeanor in all others. Ideally, TOP's are designed to provide a powerful reason to in fact stay away from another person (the threat of criminal conviction and jail).
Judges in New York City issue TOPs in virtually (almost without exception) every case in which the Prosecutor requests one. Right or wrong, that's the way it is. Not issuing an Order of Protection is perceived as an extremely dangerous thing to do. The New York Post would have a field day if something happened in a case in which a judge refused to issue a requested TOP.
In the best light, this process could be described as a "Chicken Soup - It can't hurt" philosophy. Forget about the fact, however, that law is supposed to operate based on reason rather than on whether a particular ruling "can't hurt".
TOP's provide no REAL protection, however. No TOP has ever stopped a bullet or deflected a knife.
And also, the TOP gives the complaining witness, a private citizen, the power of arrest over another person. Once you have a TOP in your favor, you can have the named person arrested at your whim. All it takes is a call to the police. "He saw me on the street and threatened to kill me" is all it takes. The police don't want to "take any chances" so the person is arrested. Let the Prosecutor sort 'em out. And the Prosecutor doesn't want to be blamed for anything, so they prosecute and let the Judge (or jury) sort 'em out.
And think about who is given that power of arrest -- a person who is by definition in an extremely emotional state and either justifiably angry or a prior maker of false allegations. Either way, the potential for abuse is extreme. Police and prosecutors refuse to accept that the potential for abuse (and actual abuse of TOP's) is incredible.
None of them wants to take the responsibility for undertaking to examine claims of violations of TOPs, because none of them wants to take responsibility even if they made a perfectly rational decision in a case. That future human behavior (especially in the realm of strong emotions) is impossible to predict accurately doesn't matter to The New York Post so it doesn't matter to the system.
In other words, given this fear-driven system, don't expect logical results.
The policies of the District Attorney's Office, the Police, and the reaction of judges to cases involving domestic violence combine to treat nearly every single case as if it were THE CASE of the madman who will immediately kill everyone involved. And it is so clearly a case of covering themselves against absurd New York Post stories that they often don't seem to understand how absurd the results often are.
For example, in a case of ours in Queens, a client's girlfriend did not want to proceed against her boyfriend and affirmatively stated that some of the claims she originally made when she was angry were NOT TRUE. She affirmatively said she did NOT want a TOP so that they could be together.
Nevertheless, the Prosecutor refused to dismiss and only would offer a non-criminal offense called harassment to resolve the case. If the client accepted the deal, all he would have had to do to walk out of the courtroom FOREVER was to agree that he "harassed" his girlfriend. If he simply spoke those magic words, the Prosecutor and the Judge were perfectly prepared to permit him to leave the Court FOREVER and to be with his girlfriend as if nothing ever happened.
But our client refused even to admit that he harassed his girlfriend. Since the Prosecutor refused to dismiss the case, the case had to be adjourned. Over our objection, the Judge issued a FULL TOP ordering the defendant to stay away from the complaining witness completely.
Remember that moments before, the Judge was perfectly content to permit our client and the complaining witness to go off together into the sunset. All he had to do was say the word "yes" when asked whether or not he harassed his girlfriend. But because he refused to speak that magic word, the judge insisted that the girlfriend have a full TOP. This was despite the fact that she was in Court specifically requesting that she NOT be given a full TOP.
Therefore, our client risked arrest on a new charge if he had any contact with the complaining witness until the next court date. Somehow, our client stopped being a threat to the complaining witness if he spoke the magic word to the judge (even if he didn't really mean it). But by not speaking the magic word, our client was such a serious threat to the complaining witness that the judge had to overrule the complaining witness' own judgment and order him to stay completely away.
Does it make sense? Of course not. But that's what happens when the whole system is driven by fear. Results are irrational.
It is our understanding that the latest policy from the Queens District Attorney's Office is that they will NEVER dismiss a domestic violence case on their own.
That means that even in cases in which it is painfully obvious (including the affirmative statement of the complaining witness) that the charges were baseless, the Queens District Attorney's Office will require that the defendant continue to return to Court until the case expires on speedy trial grounds (90 days of time chargeable to the Prosecutor for misdemeanors). If it means that a person wrongfully arrested will lose his job because of taking time out for Court appearances, then so be it.
•NEW YORK DRUG CASES
Drug Sale
Most people's image of the typical drug sale case is of the BMW driving, cell phone using, flashy drug dealer selling to school children. And perhaps that was the image in the minds of the State Legislators when they passed the drug laws now in effect.
The vast majority of drug cases involving the "sale" of drugs in Queens, however, are much less dramatic. Typically, a team of police officers enters into an area they believe to have a problem with drugs. Two or more undercover officers will enter the area and one will attempt to buy maybe one or two vials of crack, bags of heroin, or whatever is out there.
Typically the transaction will involve a total sale of around $10 to $20. Often, the people will refuse to sell to an unknown person (like an undercover officer). The usual solution to this problem is for the undercover to engage the services of some desperate drug addict hanging around the area to buy for him (or her). The desparate drug addict does this because he hopes to get some drugs as a "reward".
Unfortunately for the desparate drug addict, his "reward" for buying for the undercover officer is to be arrested along with the actual seller and charged with the same "sale". The drug addict is charged with "Acting in Concert" to make the sale which means that (for sentencing purposes) he might as well have been the drug seller to begin with.
The police and prosecutors would defend this frequent problem by suggesting that the seller and the drug addict were in fact working together and that the drug addict is an employee of the seller whose job is to bring people to him. Perhaps in some or even many cases this is true.
Nevertheless, both addict and actual seller now face the same charge, usually Criminal Sale of a Controlled Substance in the Third Degree, a class B non-violent felony.
Assuming neither one has ANY criminal history, and assuming both are over 18 years old, both face a MANDATORY MINIMUM of 1-3 years in prison if convicted. That means that if convicted, the judge could not give one day less than 1-3 years in prison, no matter what. No probation. No time served. No community service. No drug program. Just 1-3 years in jail.
Both face a potential maximum of 8 1/3 to 25 years in prison.
And if either one has a previous felony conviction within the last ten years, he faces a MANDATORY MINIMUM of 4 1/2 - 9 years in prison and a maximum of 12 1/2 to 25.
Many jurors sit on these drug sale cases totally unaware that in many cases the defendant is on trial for the better part of his life. Jurors are not supposed to consider the potential sentence, but common sense suggests that jurors form personal opinions about the seriousness of the case. One local attorney recently overheard a Queens jury speaking together in the hallway after finding a person guilty in a drug sale trial. They all agreed that the defendant was probably just going to get "probation".
Looking at the maximum sentences available, a person is better off in the criminal justice system in New York taking a bat and beating another person to a pulp, complete with broken bones, than selling one vial of crack for $10. On conviction, the judge could sentence the drug seller to more time.
•DRUG POSSESION
Drug possession cases depend for their seriousness on the amount of drugs involved and the intent of the person in possession. If the police and prosecutors charge you with possession "with intent to sell" then assuming the weight is not too great, you would face the same B felony sentences as if you had actually sold it. That means a mandatory minimum of 1-3 if you have no felony record and a mandatory minimum of 4 1/2 - 9 if you do. If the weight of the drugs involved is significant (like more than an ounce of cocaine), then you would face LIFE IN JAIL.
One of the most dramatic issues in felony drug possession cases arises when drugs are recovered from inside a car. When drugs are recovered from inside a car, the police usually arrest every person inside the car and charge every person with the same possession.
The law permits all passengers to be charged with and convicted of possession of drugs found anywhere in a car. In fact, if such a case were to go to trial, the judge would specifically instruct the jury that your presence in the car with the drugs (no matter where the drugs were recovered) is enough for them to find that you KNEW the drugs were there.
This would be true even if the drugs were found in a secret, locked container in the truck of the car, it wasn't your car, and you were not driving.
The jurors would not be REQUIRED to assume that you knew of the drugs, and you could ARGUE that you didn't know about the drugs.
But understand that if the jury did not believe your ARGUMENT that you didn't know, you might well go to jail FOR THE REST OF YOUR LIFE (depending on the weight of the drugs).
•ENDANGERING THE WELFARE OF A CHILD in New York
Endangering the welfare of a child is a frightening charge that is becoming quite popular with the police department and the District Attorneys' Offices in New York City and increasingly broadly applied.
Endangering the welfare of a child is a misdemeanor, but the consequences of being accused of endangering the welfare of a child can spread far beyond the criminal justice system. A frequent offshoot of an "endangering" charge is that the child is removed from the home and placed in foster care (if the accused is a parent). This is what the schools don't tell the children when they program them to report spankings to their teachers.
At first glance, it certainly sounds completely reasonable to have a crime on the books to protect children from people endangering their welfare. Who in the world could possibly be opposed to protecting the welfare of children? And it is perhaps this quite noble goal that led the legislature to attempt to make endangering children a criminal act.
The difficulty with the New York State crime of endangering the welfare of a child, however, lies in its incredibly broad definition of what endangering means.
The result is that the police and the New York City District Attorneys have recently taken to prosecuting people for almost anything they feel like.
For example, people have been accused of endangering the welfare of a child for:
• cursing in front children
• fighting in front of children
• driving recklessly with children in the car
• imposing corporal punishment as discipline
• taking a child outside in a light sweater when the Queens District Attorney thought that heavier outer clothing ought to have been worn. (not our case)
This most recent case of taking a child out with a light sweater is a current active case pending in Queens Criminal Court as of February, 2001. The judge presiding in AP4 has already preliminarily suggested to the counsel of record that she believes that such a complaint is supported by the law.
This is truly a frightening state of affairs. The State of New York is now in the business of evaluating the thickness of the outer clothing our children wear in comparison to the outside temperature. This is a CRIMINAL case. The defendant is facing a CRIMINAL CONVICTION and possible time in jail because his view of the needed thickness of the outer garments of his child differed from the judgment of the police and Queens District Attorney's Office.
The really frightening thing is what is next. What happens if someone takes her daughter outside in a polyester sweater instead of a wool sweater? Polyester isn't as warm as wool and conceivably the thickness of the sweater could be deceptive as to its warmth. Is the State of New York going to be making criminal laws about the minimum warmth rating for particular temperatures when taking children outside? This seems absurd even on casual thought.
One can imagine all kinds of behavior that could be deemed MORE harmful to children than thin sweaters or fighting in front of children. It is a crime to fight in front of children? Then why is it not endangering the welfare of a child to take your child to see Saving Private Ryan in which people are brutally butchered in almost non-stop ultra-violent war scenes? The Queens District Attorney's Office wouldn't have enough jail space in all of New York City to house all the parents who exposed their children to Ryan or other similar scenes of horrific violence.
I routinely see parents who feed their children on steady diets of fast food. Or what about parents who expose their children to second hand smoke from the moment of their birth? Perhaps sending children to attend certain dangerous public schools is endangering their welfare. Are parents endangering the welfare of their children by not driving Volvo Station Wagons or Lincoln Navigators?
What about parents who don't read to their children? What about parents who tell their children that they are worthless and will never amount to anything? What about parents who don't care about school because they didn't do well in school and managed to make a living? What about parents who both work long hours and never see their children. What about parents who never play with their children? Should all of these parents be reported to the Queens District Attorney's Office? There aren't enough jails in all of the United States to hold the parents who are guilty of such behavior.
People are not perfect and there will always be room for improvement in the bringing up of children. But the fact of the matter is there will be parents who will insist on smoking constantly around their children. There will always be parents who will take their children to see almost any movie. There will always be parents who will raise their children on peculiar or unhealthy diets.
Is this something to be proud of? Probably not. And there lies the difficulty. To be opposed to the over-reaching use of "endangering the welfare of a child" is a dangerous political position to take.
If the police department makes an arrest for endangering the welfare of a child, everyone involved becomes immediately terrified. The District Attorney's Office is terrified because any case involving a child might come back to haunt them politically.
Similarly, most judges are afraid of endangering cases because they are terrified that an error in judgment on their part will be turned into political firestorm "if something were to happen."
Taking the position that the endangering laws are absurdly too broad or applied too broadly leaves a person open to the criticism that he is soft on crime or is somehow in favor of child abuse.
It's not about being in favor of child abuse. Nobody is in favor of child abuse. It is about being in favor of the Government not getting so deeply involved in our lives and telling us how to behave at such microscopic levels that we must be concerned about being prosecuted criminally for the thickness of the sweater in which we dress our child.
Wouldn't it be nice if people didn't smoke around their children? Sure. Wouldn't it be nice if all parents played with their children? Absolutely. Wouldn't it be nice if parents never said mean, awful things to their children? Of course.
But there is a difference (or there used to be anyway) between what would be nice in a perfect world and what ought to be made a criminal act.
So beware if you find yourself accused of endangering the welfare of a child. No matter how absurd you may think it is, no matter how illegal you think your criminal prosecution may be, you are in for a fight. Get a lawyer and prepare for battle.
•DRIVING WITH A SUSPENDED LICENSE in New York
(New York Vehicle and Traffic Law Section 511)
Few people expect to have a night "in the system" in New York City in their futures, but one particular group of "offenders" are almost universally shocked when it happens to them - those who are driving in New York City while their licenses are suspended as a result of a failure to pay one or more speeding tickets.
Many people whose licenses are suspended are driving around New York City at any given moment. Whether these people realize it or not, the failure to appear or pay for even a single speeding ticket can result in the Department of Motor Vehicles suspending your license.
Furthermore, if you are an out of state resident and have an out of state driver's license, your "privilege" to drive in New York can be suspended if you fail to pay a speeding ticket. New York State keeps track of this and if you are stopped for any reason by a police officer in New York City while driving, you will be arrested and probably put through the system.
It used to be that such cases of driving while your license was suspended did not result in people being put through the system and held for upwards of 24 hours. In most cases, in days long gone, such cases were almost always dealt with by summons or desk appearance ticket, in which the person arrested is simply given a piece of paper informing him of the need to return to court to deal with the issue.
That changed even before the police stopped issuing desk appearance tickets with regularity. Police department and District Attorneys' Offices policy changes made in response to a couple of cases that made the press involving drivers who had no licenses causing accidents has caused the current situation. Many years ago the press identified an "epidemic" and the police and prosecutors responded by making the preposterous connection between the fact that the drivers in question had their licenses suspended and the fact that they got into ugly accidents. The fact that there was no necessary rational connection between these two facts, and the fact that the administrative formality of obtaining proper paperwork would not change the driving habits of anyone, did not make any difference. No demonstrated formula could possibly connect the administrative formality of keeping up to date with paying traffic tickets and quality of driving. But the press identified an "epidemic" and the police and prosecutors responded with a policy.
The new policy was to take these driving without a license cases "seriously". That meant that most of these new cases would have to go "though the system".
In New York City, that means usually spending the better part of 24 hours in police custody.
But that is not all. Most people would probably assume that a person arrested for such a trivial administrative issue as driving even though outstanding tickets have not been paid, would be treated a little differently from the rest of the criminally accused.
Wrong.
People arrested for driving on a suspended license are treated precisely the same as people arrested for armed robbery. They are handcuffed and frisked in public, chained together with other accused criminals and transported in police vans together with other accused criminals. They are held in the same filthy, horrible, miserable cages as the people accused of murder, armed robbery and rape.
People arrested for driving on a suspended license will be fingerprinted, photographed, and treated with the same dehumanization techniques as everyone else arrested. People arrested for driving on a suspended license will be referred to in the system as "bodies" just like everyone else arrested for robbery, rape, and murder.
Many of the people arrested for driving with a suspended license are people who have never been in any form of real trouble before, and would sooner have imagined themselves walking on Mars as being held in the New York City arrest to arraignment process.
And consider this: The information upon which the police make the determination to put somebody though the arrest to arraignment process comes from The Department of Motor Vehicles. Can you imagine a more frightening prospect than that? Realize that there is no debate with the police officer when your license comes up as having been suspended.
Welcome to the world of "All I know is what it says here on this printout from DMV. You can take it up with the judge." (Actually, you can't take it up with the judge, because the Criminal Court Judge has absolutely nothing to do with the DMV and the Criminal Court Judge is likely to say something like, "All I know is what it says here on this printout.")
Even in the event that New York Department of Motor Vehicles records might be wrong, you will spend about 24 hours in jail waiting to see a judge.
Ultimately, of course, once you see a judge it is likely to be resolved or if not resolved, you are likely to be released without bail. In many, but not all cases, the criminal matter can be resolved at arraignment with a traffic infraction and a small fine. Keep in mind, however, that the resolution of the criminal matter does not resolve the ticket issue with DMV. Criminal court doesn't care whether you have a million dollars in outstanding tickets, unless you get behind the wheel of a car in New York.
However the criminal matter is resolved, you will still need to clear up the issue with the Department of Motor Vehicles if you ever want to drive legally in New York again.
New York City spends what must be a fortune putting people arrested for Driving on Suspended Licenses “through the system”. Many people every day come through facing these types of charges. This seems an unwise use of scarce public resources when you consider that it really amounts to simply enforcing administrative rules relating to the collection of money. Driving after not paying a speeding ticket in New York is a crime not because it is something that is inherently wrong or evil, like murder. It is a crime simply because the New York State Legislature has made it a crime (a “because we said so” type of argument) as a means to encourage people to pay the Government money they owe. And if it is all about the money, how can it possibly make sense to spend many times the amount of money likely owed by putting them through the system?
And if the theory is that arresting people and putting them through the system will act as some kind of deterrent, then the theory is wrong. It can be a deterrent only if it is known or believed to really happen. Nobody ever believes that they are going to be held in a filthy cage for 24 hours with all other people accused of all manner of crimes from shoplifting to murder for simply driving after not having paid a speeding ticket. People reading this article will still not believe it is going to happen. It is such a preposterously out of proportion Governmental response to the “problem” that it has no credibility as a deterrent.
And yet it happens every day in New York City many times over.
The lesson to be learned from this policy is to pay your tickets and then make sure that the DMV records are accurate, and then make sure that the DMV records remain accurate.
And whenever you pay a ticket, get a receipt, have it laminated, and keep it with you in your wallet as proof for the rest of your life. Keep a backup copy at home as well. If you are able to produce a receipt at the moment when the police officer is explaining to you that your license has been suspended for failing to pay the ticket, it is possible, although not entirely certain, that you may not be put through the system.
As I said before, the moment of arrest is not usually an opportunity for extended discussion or debate of the issues. There is no "I've got proof at my house, just call my wife." Figure you have about 8 - 10 seconds to produce absolute unambiguous proof (on the order of Divine Intervention) that you paid the ticket and then hope for the best. Don't expect the police officer to do anything other than pretend that the Department of Motor Vehicles is the most efficient, reliable, and unassailable agency ever created by mankind. Despite what may be the common perception that the Department of Motor Vehicle records are almost per se unreliable, the police officer will likely take the position that if the computer says you didn't pay your ticket, as far as he is concerned, you didn't pay your ticket.
