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What is the Difference Between Parole and Probation in New York?

If you were to ask the general public about the possible outcomes of a court case then it is a safe bet that they would easily show they understand the difference between a guilty verdict and an innocent sentence. But once you move past these initial verdicts, things start to get a little cloudy and the various terms used bleed together like colors in the wash.

Of these terms perhaps no two are so often mistaken as parole and probation. These terms are as similar as they are unique. That is to say, they cover a similar ground with similar spellings but they each approach what they cover from a unique perspective. In order to understand the difference between parole and probation we must first understand what each of them is.

What is Parole?

Parole begins during the time that an individual is incarcerated. Offender Rehabilitation Coordinators or Supervising Offender Coordinators begin the parole process by first helping the incarcerated individual prepare for their interview with the New York State Board of Parole. These interviews cover questions about the individual’s criminal activity, custodial record, future goals, their participation in various programs the prison offers and what they plan to do once they are released.

If parole is granted then it means that the incarcerated individual is giving conditional freedom. They no longer have to live their life behind bars but they are instead given a series of responsibilities of which they must live up to. Parole conditions range depending on the specifics of the individual but common conditions of parole include maintaining employment and residence, abstaining from taking part in any criminal activity or from contacting victims of prior crimes, abstaining from drug use and sometimes alcohol use.

A common condition of parole requires that the parolee stay within a geographically defined area, such as when they are told they are not allowed to leave the city they reside in. Another common condition is for the parolee to attend some form of recovery program such as drug and alcohol recovery meetings.

A parole officer will be assigned to the parolee and they will be required to meet and discuss the parolee’s ability to keep up with the conditions of the parolee. The parole officer will also make unannounced visits to the parolee’s home to ensure that they are living according to the parole conditions and not just lying about it during their meetings.

What is Probation?

Probation happens before an individual is incarcerated. Rather than going to jail, they are put on probation instead. This allows them to continue to be a part of the community rather than be removed from it entirely. As with parole there is a set of conditions which the individual must abide by, otherwise they could end up attending a probation violation hearing. A probation violation hearing may result in additional probation terms, having to pay a fine or even having the probation revoked and getting sent to prison.

The length of probation is determined primarily by the offense you are found guilty of but a typical probation period is anywhere from a year to three years. However, certain crimes result in a much longer probation period and a violated probation could result in the probation period being extended.

The conditions of probation are prone to range, again it all depends on the details of the crime for which the probation is given. But typical conditions include:

  • Having to meet with a probation officer on a regular basis.
  • Undergoing drug or alcohol testing.
  • Avoiding known criminals.
  • Paying restitution to the victims of the crime.
  • Appearing at scheduled court dates.
  • Not travelling outside of a geographically defined area without express permission.
  • Refraining from committing any additional crimes.
  • Refraining from drugs or alcohol.

How do Probation and Parole Differ from One Another?

Just laying out what probation and parole are should make some of the key differences immediately apparent. Yet it must be noted that they do also share a few common elements. Both probation and parole are focused on the release of an offender back into the community. To do this they both have checks and balances in place that are designed to limit how disruptive the criminal can be in their environment such as regularly scheduled and unannounced check-ups.

The main difference between parole and probation is when the criminal is allowed back into the community. A person can be put on probation without having to spend any time behind bars. As such it is much more likely that probation will be used in crimes of a lesser nature and especially in cases where the convicted individual has no prior criminal record. Probation serves as a way of not removing the individual from their community and thereby not rupturing their life very much. This allows the individual to learn from their mistakes without too much hassle.

Parolee, on the other hand, requires that the individual spend time in prison before they are released. Parolee is not granted by a judge but requires the individual to meet with a parolee board after serving time. Rather than keep the individual in the community, parolee is more of a way of introducing the individual back into the community.

What Happens if I Violate my Parole or Probation?

It is extremely important to follow the conditions set out in your parole or your probation. Violating these conditions can mean fines, extended periods of parole/probation or, in the worst case, a ticket back behind bars. In cases where you have violated either parole or probation it is always a smart idea to hire an attorney.

A knowledgeable attorney won’t be able to go back in time and prevent you from violating your conditions but they can help you show the court why your violation should be forgiven or taken more lightly. Here at Mirsky Law Firm we have lots of experience in cases of violated probation/parolee and we’re always happy to hear about the specifics of your case. Give us a call at (516) 299-6187 to see how we can help.

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What Responsibility Do I Have as a Parent if My Child is Charged with a Juvenile Crime on Long Island?

Being a parent is hard, incredibly hard. But on top of everything else, it can be a confusing experience when your child is charged with a crime. There is a lot that needs to be done and this can vary depending on the age of the child, too.

One of the questions that often comes up when parents are first grappling with the fact that their child has been charged with a juvenile crime is that of responsibility. “What am I responsible for here?” Many worry that they will be responsible for getting their child a lawyer. As a parent, you can hire a lawyer for your child but if you don’t have the money to then one will be provided by the court.

But there is a whole other range of responsibilities you have as a parent. These stem from what are known as parental responsibility laws.

What is the Parental Responsibility Law?

New York state’s parental responsibility law can be found under N.Y General Obligations Law 3-112. This law defines the parental responsibilities for the damages caused by a minor child. This defines the oldest a child can be to court towards this law as 17, since they can be tried as an adult once they hit 18. But it also states very plainly that it applies to children who are 10 or older.

So as a parent of a child on Long Island you would be held responsible for the damages of your child so long as they were between the ages of 10 and 17. It is also important to note that this does not apply to parents across the board but rather to those that have custody. A parent or a guardian can be held responsible but if the child’s custody was held by social services then that responsibility would not then magically fall onto the parent. This would be entirely unfair, as that parent does not have a large enough role in the child’s life to count as responsible for them.

What Damages Could I Be Liable for Through the Parental Responsibility Law?

Pretty much anybody can seek to recover damages from you for the actions of your child. That means an individual, a corporation, a church or even a municipality itself can pursue damages. This particular point is kept wide in order to allow anybody that was wronged to be able to seek damages, if it was narrowed down then certain people and groups might not be able to pursue damages and thereby be let down by the law meant to help them.

3-112 is most strongly concerned with property damage. However, the damage that your child did to the property must have been done so willfully or maliciously. This is important because it means that there was intent behind your child’s actions. If they damage a property by way of an accident then parental responsibility does not come into play. 3-112 is written in such a manner as to more or less cover the whole range of property damages from destruction and vandalism to theft and the like.

3-112 in New York state also covers false bomb crimes. If a child plants a false bomb or calls in a false bomb threat then you could be held responsible for the cost that the property would lose due to business being shut down, as well as the cost required to deploy a bomb unit and enough law enforcement officers to cordon off the area from the public. This can easily get more and more expensive at an exponential rate. Thankfully, there is a limit liability in place up to $5000.

What Happens if I Can’t Pay for the Damages My Child Caused?

If the damages that you are required to pay are more than $500 then you can apply for the equivalent of a hardship forgiveness. In order to do this you need to gather a lot of evidence to show that you are simply unable to afford the damages you’re being asked to pay. The court will hear all of the evidence you present them with and make a decision based upon it.

At this point the court may decide to forgive a portion of the damage in order to provide the parent with a more affordable cost. However, this only applies to damages that are more than $500 and as such no damage will be reduced down to less than $500. You can pretty much bet that if you have to pay damages for your child then it’s not going to be less than $500.

How Can I Defend Myself From Paying These Damages?

There are some defenses which can help prevent you from having to pay damages on behalf of your child’s actions. One such defense is to be excused from liability for a minor which left your custody without cause. For example, if your child has run away from home then you can’t be held responsible for the actions that they’ve taken.

In many cases, what you’ll find is that parents have a hard time getting by without paying for the damages their children have caused. However, good parenting tends to be respected in the court and those parents that show a willingness to be responsible for their actions, and especially those that show that they are taking an active role in teaching their children why what they did was wrong, tend to have smaller amounts of damages they are liable for.

But the best way to avoid paying for damages from your child’s action is to hire an experienced lawyer that can help your child to win their case. That’s why we here at Mirsky Law Firm want to help you. Give us a call at (516) 299-6187 to see how we can help you and your child move past this hardship.

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What Should I NOT Do if I am on Parole in New York?

Being stuck behind bars is horrible. All you want to do is get out, go home, see your loved ones again and try to rebuild your life. That’s why the parole process exists, it is a way to help introduce offenders back into society as early as possible so that they might reclaim their lives and put their criminal behaviors in the past.

But getting paroled is not the same as being let out of prison to do as you want. There are rules and conditions attached to every parole that are designed to help ensure that the individual does not commit further crimes and only does damage to the community with their freedom. It is important that if you want to keep your parole and move on with your life that you follow the conditions of the parole and not commit any acts that would violate it.

What are Conditions of a Parole?

One individual’s parole will not be the same as another individual’s parole, though there will be similarities between them all. The reason for this fluctuation is due to the fact that an individual’s parole conditions are determined by the specifics of their crime. For example, a hacker might be conditioned against using certain forms of technology but this makes little sense as a condition for somebody who was convicted of automotive theft.

A parolee will be assigned a parole officer and it will be their responsibility to meet with their parole officer on a set schedule. However, these meetings are just one of the ways that a parole officer will judge whether or not the parolee is following the conditions of the parole. Parole officers are also empowered to visit the parolee at their place of residence or employment without warning to ensure that they are following the conditions. It is in check-ups like these that many people are discovered to have violated their parole.

How is Parole Violated?

To violate parole is to act in a way that fails to follow one of the conditions that have been set out. It is impossible to list all the ways that parole is violated, since one person can have conditions that another person doesn’t.

But in general, the most common ways of violating parole are:

  • Failing to Show to a Scheduled Appointment: It is extremely important that you report to any and all appointments you have with your parole officer. It can be possible to have appointments moved in some cases but you should always call and speak with the officer first. It is never a good idea to miss an appointment without warning, even when the circumstances are understandable.
  • Failing to Show Up to Court: Like with appointments with your parole officer, you must always make sure to show up for any court appearances you are scheduled for. It never looks good to fail to show up to court, it is a violation of your parole and it can be harmful for your next court appearance.
  • Failure to Pay Fines: A failure to pay fines might not seem like such a big deal but when you are on parole it certainly is. Failing to pay your fines by the scheduled date cis a violation of your parole that could result with you heading back behind bars.
  • Traveling Out of State: Most parole set a condition of not traveling out of state. This is one of the conditions which can be granted an exception in certain circumstances. For example, you can get permission to travel out of state to see a dying loved one in some cases. But it is unlikely that you could get permission simply to go on vacation. In general, if you are on parole then you should expect to stay in the same geographic area.
  • Possessing or Selling Drugs: It should come as no surprise that possessing or selling drugs is a violation of your parole. After all, it is a crime in-and-of-itself.
  • Committing Other Crimes: Committing any crime when you are on parole is a terrible idea. Crimes are punishable on their own but when combined with parole it shows the judge that you are not able to (or worse, have no desire to) integrate back into society.
  • Meeting with Known Criminals: Meeting with known criminals is a way to violate your parole because it suggests that you are choosing not to leave your criminal ways behind now that you are allowed back out in the world again.

What Happens When Parole is Violated?

There are a few ways that violating your parole could go but the most usual chain of events is:

  • You Get a Warning: Small violations could result in just a simple warning. This is especially typical in cases where it is a first-time violation as well as a smaller offense. However, larger offenses are not taken lightly even when there is no previous record of violations.
  • A Court Appearance is Set: If your violation is severe enough then a court date will be set in order to see how to proceed.
  • A Judge Hears Your Case: During your court case a judge will listen to the circumstances of your case and your defense.
  • A Judge Gives a Sentence: The judge will then determine what will happen from the parole violation. This could range from having more conditions applied, having the parole extended or even having the parole revoked.

What Should I Do if I Violate My Parole?

If you have violated your parole then it is important that you immediately ensure you follow the conditions of the parole while waiting for your court date. This ensures that you don’t make the situation any worse than it already is.

The next step is to get an experienced attorney that can help show the judge how you learned from the violation or how it was accidental, such as meeting with an individual the court knows as a criminal but that you did not. Call Mirsky Law Firm at (516) 299-6187 to learn how we can help you today.

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“Petit” Larceny vs. Grand Larceny (and Other Crimes of Theft) in New York

Everywhere that a legal system has been established, stealing is illegal. Stealing in New York includes theft, robbery, larceny, and more. If you are accused of stealing something in this state, you will need the advice and services of a good Long Island criminal defense lawyer.

Theft – New York State law calls it “larceny” – is distinct from robbery and burglary. They constitute three different crimes that involve stealing. A conviction for larceny, robbery, or burglary can be penalized quite harshly by a New York criminal court.

How does New York define larceny? How are crimes of larceny handled in our state? What penalties are imposed for a larceny conviction? Keep reading, and you’ll learn more about larceny and about your rights if you are accused of committing larceny in the State of New York.

How is Larceny Defined?

Larceny is “simple” theft, whereas robbery and burglary are crimes that include additional elements such as force, intimidation, or illegal entry.

Larceny is any theft that does not involve force, intimidation, or illegal entry where the perpetrator intends to deprive the property’s rightful owner of the property semi-permanently or permanently and control the property semi-permanently or permanently.

Lawmakers in New York have defined “property” as any personal property, money, computer data or program, real property, or anything that has value, including steam, gas, electricity, or water.

Charges and sentences for crimes of stealing in New York are based on a property’s value, which state law defines as a property’s “market value” at the time the offense takes place.

How Are Larceny Crimes Classified? How Are Larceny Convictions Penalized?

Larceny crimes in this state are classified as petit (petty) larceny or as grand larceny. Petty larceny, a Class A misdemeanor, is a theft of any property valued below $1,000. A conviction for petty larceny may be penalized with a jail term of one year and a $1,000 fine.

Grand theft or grand larceny is considered a felony. Penalties for grand theft convictions are based on the market value of the stolen property:

1. For property valued above $1,000, grand larceny is a Class E felony. A conviction is punishable with a maximum prison term of four years.

2. For property valued above $3,000, grand larceny is a Class D felony. A conviction is punishable with a maximum prison term of seven years.

3. For property valued above $50,000, grand larceny is a Class C felony. A conviction is punishable with a maximum prison term of fifteen years.

4. For property valued above $1,000,000, grand larceny is a Class B felony. A conviction is punishable with a maximum prison term of twenty-five years.

If you are convicted, you may also be ordered to pay substantial fines.

How is Burglary Defined?

Burglary in the state of New York is always charged as a felony. Burglary in the third degree happens when someone “knowingly enters or remains unlawfully” in a structure while planning to commit a crime there.

“Entry” is any intrusion into a structure with any part of one’s body. “Breaking and entering” forcefully is not required for a burglary charge. The crime is charged as burglary in the second degree if one or more of the following apply:

1. The targeted structure was a residence.
2. The defendant was armed with explosives or a lethal weapon.
3. The defendant injured a victim or bystander.
4. The defendant brandished what appeared to be a firearm.

How Are Burglary Convictions Penalized?

If a structure targeted for burglary was a residence, and if one or more of the remaining three conditions apply, the charge is burglary in the first degree. Here’s how convicted burglary offenders are sentenced in New York’s criminal courts:

1. Burglary in the third degree, a Class D felony, may be penalized upon conviction with a seven-year prison term and a $5,000 fine.

2. Burglary in the second degree, a Class C felony, may be penalized upon conviction with a fifteen-year prison term and a $5,000 fine.

3. Burglary in the first degree, a Class B felony, may be penalized upon conviction with a twenty-five-year prison term and a $5,000 fine.

How is Robbery Defined?

Robbery, like burglary, is considered a felony in the state of New York. As mentioned previously, larceny is “simple” stealing, but robbery requires physical force or the threat of physical force. Robbery is a serious offense because it also poses a risk to the public’s safety.

How are robbery convictions penalized in our state? Robbery in the third degree – “simple” robbery without aggravating factors – is considered a Class D felony and may be penalized upon conviction with a seven-year prison term. Robbery in the second degree happens when a robber:

1. appears to brandish a weapon
2. is assisted in the robbery by an accomplice who is present at the crime scene
3. injures a victim or bystander
4. steals a motorized vehicle

How Are Robbery Crimes Classified? How Are Robbery Convictions Penalized?

Robbery in the second degree is considered a Class C felony. A conviction may be penalized with a fifteen-year prison term.

Robbery in the first degree happens when, during a robbery or a flight from a robbery scene, the perpetrator or the perpetrator’s accomplice:

1. is armed with a lethal weapon
2. uses a lethal weapon or threatens its use
3. causes any serious bodily injury to a victim or a bystander

Robbery in the first degree is considered a Class B felony. A conviction may be penalized with a twenty-five-year prison term. Additionally, a court may impose a $5,000 fine – or twice the value of the stolen cash or property, whichever is the highest – for any conviction for robbery.

How Can a Criminal Defense Attorney Help You?

If you’re charged with any crime of burglary, robbery, or larceny in this state, you must have sound legal advice and aggressive defense representation. As soon as possible after you’ve been charged, make the call to a good Long Island criminal defense lawyer.

As you know, to convict you of any criminal charge, a prosecutor must prove your guilt beyond a reasonable doubt. That’s not always easy, because a good defense attorney’s job is to cast doubt on a prosecutor’s evidence.

So don’t presume that you will be convicted if you are charged with larceny, burglary, or robbery. On the other hand, don’t procrastinate. If you are charged with larceny, burglary, or robbery, retain a defense attorney’s help as quickly as you can. That is your right.

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What Will Happen at My Arraignment on Long Island?

Most people can go their whole life without landing on the wrong side of the law. Most people’s fear of being arrested focuses on the image of the handcuffs being slapped on. But being cuffed is only one small part of the arrest process. When it comes to the full process, there is a lot that people don’t fully understand.

When you are arrested you’re taken down to the police station and you go through the steps of having your photo and fingerprints taken. From there, you move into holding until you can be taken to your pre-arraignment conference and then from there on to your arraignment itself. The outcome of the arraignment will determine whether you get to go back into the community afterwards or whether you’ll be made to stay in jail longer.

What Happens at an Arraignment?

Your arraignment will be the first time you are in court due to the charges you are being presented with. As such, it is a much shorter experience than your trial because there isn’t evidence to be presented or witnesses to be questioned.

Your arraignment is focused not on what will happen from the charges you are presented with but rather what will happen between this presentation and the time of your trial. As such it deals with how you can be released back into society for the time being and it has a strong focus on whether you can be trusted to return for your court day on your own accord.

There are several ways in which you may be allowed to leave your arraignment. If you are released on your own recognizance then you will be allowed to leave back into society until your court date. You could be held until the date of your trial, as is the case with many violent crimes like homicide. Or you could be held until you can post bail if you are considered a flight risk.

How Do Misdemeanor Arraignments and Felony Arraignments Differ?

Misdemeanor arraignments and felony arraignments are more similar than you might think considering that they represent two different categories of crime in regards to severity.

In general, misdemeanor crimes are those that can be punished with up to a year in jail. Felony crimes have a minimum sentence of at least a year. During your arraignment it is not uncommon for the prosecution to allow you to plead guilty to a lesser charge. However, this is much more rare in felony cases than it is in misdemeanor cases.

Pleading guilty to a less charge may seem like a good way to get out of worse trouble but it is important than you never plead guilty to a charge without first consulting a lawyer.

Should I Have an Attorney at my Arraignment?

You should absolutely have a good attorney with you at your arraignment if you can. There are several points during the arraignment process where an attorney will make it easier for you, or at the least a good attorney will be able to help you from feeling completely overwhelmed by the whole process.

Before your arraignment begins there is what is called a pre-arraignment conference. At this conference you will be made aware of all the evidence against you at this point in the case. This can seem very overwhelming, especially if you’ve never had a pre-arraignment conference before. It is easy to feel like your case is hopeless and many people feel that a guilty plea is the only way to go.

An attorney will be much better prepared when it comes to the pre-arraignment conference. They will have seen the process before and know how it translates in terms of your case. This means that they will be able to help keep you calm and stop you from making a rash decision due to emotions.

Because a defense attorney will have seen this all before, they will be able to help you get a real sense of how strong the case against you is. This means that they can caution your expectations if things look bad but it also means that they can help get the case dismissed, too, if there isn’t enough evidence or some sort of breach of your rights involved.

Finally, when it comes to the arraignment itself an attorney is a valuable asset when it comes to your bail or bond. Bail can cost quite a lot of money and there are always cases where people just can’t afford to pay for their bond. This ultimately means that they have to stay in jail until their trial and nobody wants that. But a good attorney can help to get your bail set at a reasonable price and they will have relationships with bail bondsmen who can ensure that you spend the time before your trial in the community and with your family.

When Should I Get an Attorney?

It is important to get an attorney as soon as possible after being arrested. The closer an attorney is to the crime itself, the more they will be able to influence the case in order to help prevent you from being overwhelmed or tricked into admitting to a crime you didn’t commit.

If your loved one has been arrested then you can approach an attorney on their behalf while they are dealing with the police. There is no reason to delay in acting. Every minute could be the difference between your loved one being let back into the community or them signing their life away because they were made nervous about their case.

At Mirsky Law Firm we strive to help defend those in need. If you have a loved one that is soon facing an arraignment for new charges then reach out, we’re here to help. Call (516) 299-6187 to learn more about how we can help defend you or your loved one today. It’s always better to move quick than wait until it’s too late!

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What Happens If You Refuse A DWI Chemical Test?

In New York, DWI means “driving while intoxicated,” and it’s the legal term for driving a motor vehicle while under the influence of alcohol. If you are charged with DWI, it probably means that you failed a chemical DWI test, and you’ll need the help of a good Long Island DWI lawyer.

But what happens if you refuse to take a chemical DWI test – a blood, breathalyzer, or urine test – when a police officer requests it? Keep reading, because “refusal to test” can get you in serious legal trouble, and if that happens, you’ll also need a good DWI lawyer’s help.

When a police officer in New York suspects that a driver is impaired by drugs or alcohol, the driver may be asked to submit to a field sobriety test, which is often followed by a pre-arrest “portable breath test” (or PBT).

How Do “Implied Consent” Laws Work In New York?

New York legally requires drivers to submit to a chemical DWI test if they have been placed under arrest.

This state’s implied consent laws mean that:

1. Simply by driving in the State of New York, you’ve already implied your consent to chemical DWI testing.

2. If a New York police officer requests it, you must submit to chemical DWI testing after being placed under arrest for a drug or alcohol-related offense.

What Should You Know About Pre-Arrest “Portable” Breath Tests?

If a police officer has probable cause to believe that a motorist is intoxicated, the officer may ask the driver to submit to a portable breath test (PBT) with a handheld breathalyzer device that measures the driver’s blood alcohol content (BAC) level. The “legal limit” is a BAC level of 0.08 percent.

PBT test results are considered less reliable than the results of chemical tests at a police station using more sophisticated devices, and PBT results generally cannot be introduced as evidence at a trial, but a PBT test result can give a police officer probable cause to arrest the driver for DWI. A driver who refuses to take a roadside PBT test prior to being arrested can face consequences.

What If You Refuse To Test After A DWI Arrest?

After a driving while intoxicated arrest, a driver may be asked to test on a more sophisticated breathalyzer device – or to provide a blood or urine sample – at a police station. The results will be admissible as evidence in a DWI prosecution, and the penalty for refusing is more severe.

Regardless of whether you are convicted of driving while intoxicated, refusal to test after being arrested can trigger a one-year driver’s license suspension and a fine of $500. The fine is $750 if you’ve refused testing or if you’ve been convicted of DWI within the last five years.

Additionally, if you refuse to submit to a chemical DWI test after being arrested, your refusal can be used as evidence against you in a criminal DWI prosecution. The prosecutor can say that you knew you were guilty, and that’s why you refused to provide evidence of your guilt by testing.

Can You Be Forced To Give A Breath Or Blood Sample?

In most situations, you cannot be forced to take a chemical DWI test. However, if you were involved in an accident, and if someone was killed or seriously injured, the police can obtain an immediate court order which allows them to use force to take a sample of your blood for testing.

If you are charged with DWI and/or with refusal to test in New York – either before or after you were arrested, you must be represented by a Long Island DWI lawyer who will challenge the results of a breathalyzer exam or any other evidence the state offers against you.

You must take a driving while intoxicated charge seriously. Do not plead guilty and do not try to act as your own lawyer. Pleading guilty may look tempting as an expedient way to handle a DWI charge, but a guilty plea to driving while intoxicated charge impacts your life for years to come.

What Should You Know About Breathalyzers?

Breathalyzer devices measure the alcohol molecules in your breath and then determine the amount of alcohol in your bloodstream based on the alcohol in your breath. Breathalyzers, however, are often inaccurate, and criminal defense attorneys often successfully challenge the test results.

Substances that breathalyzer devices “read” as alcohol are in foods, beverages, medicines, toothpastes, breath fresheners, and mouthwashes. Even your cologne or perfume could be mistaken for alcohol by a breathalyzer device.

Several medical conditions can also distort a breathalyzer test result including gastrointestinal reflux disease, acid reflux, and heartburn.

Moreover, breathalyzers frequently malfunction. The devices must be routinely maintained and calibrated. Officers who conduct breathalyzer examinations must be trained to use the devices properly and to follow established guidelines for breathalyzer tests.

What Are The Penalties For DWI Convictions?

DWI is usually a misdemeanor in New York. A first DWI conviction is punishable with up to a year in jail and/or a fine of $500 to $1,000, along with a three-year probation period and a six-month driver’s license revocation. There’s also a surcharge and a fee for aid to crime victims.

As you might imagine, subsequent convictions for driving while intoxicated in New York will result in increasingly harsher penalties. And while the legal penalties are considerable, you should also consider the extra-legal repercussions of a DWI conviction:

1. Your automobile insurance rates will increase.

2. If you are employed as a driver, or if driving is essential to your job, you may have trouble keeping or finding employment.

3. If you hold a professional license, a DWI conviction will probably lead to disciplinary action by your professional licensing board.

What’s The Best Strategy For Drivers In New York?

There is only one sure way to avoid DWI trouble. Don’t drink and drive. If you plan to drink away from home, take Uber or Lyft, call a taxi or a limo, arrange for a designated driver, get a room for the night, or arrange to sleep on a friend’s spare bed or sofa.

If you are arrested and charged with driving while intoxicated, a New York DWI attorney will protect your rights, guide you through the legal process, fight for the justice you need, and bring your case to its best possible outcome.

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What is a Motion to Suppress?

In a court of law, both sides, prosecutors and the defendants have a right to offer evidence for their case. This is how a court of law works. Defendants who come in are innocent until proven guilty. That’s the important thing to remember in our society. No one is unduly guilty until they are proven guilty in a court of law. So, it is the prosecutor’s job to present evidence of the defendant’s guilt. In the same way, the defendant has the right to defend themselves against said accusations by having a criminal defense lawyer.

To make this even more fair, each side has a right to obtain and view the evidence before the hearing. Knowing what evidence the prosecutor has allows the defendant the opportunity to defend against the accusations being leveled against him or her. In that same way, seeing the evidence presented against them, the defendant might have their lawyer asked the court to have certain evidence excluded from the case.

Their reasons might be that the prosecutor got the evidence illegally or they did something that violated their constitutional right and thus the evidence should be tossed out. From there, the Federal Rules of Evidence will be able to decide whether the evidence does violate the defendant’s constitutional rights or if the court should deem it admissible. Every state does it differently but for the most part, it’s very similar to the procedures federal courts use.

Different Types of Evidence

By definition, evidence is any material that is part of a legal proceeding. It can include things like photographs, video, written statements, physical objects, like weapons, digital evidence, test results, testimony from others, especially witnesses, and more. The evidence has to be relevant to the case. That means the evidence must play a role in either making the material facts of the case more or less probable.

Evidence can go against or for a defendant. It’s not just the prosecutor who brings evidence in the case. They will do their best to find evidence that proves the defendant is guilty, but the defense has a chance to dispute their evidence and present some of their own. Any “evidence” that’s not relevant to the case can be dismissed. A judge might even determine a piece of evidence is admissible but still, be denied because it would influence the jury in an unfair manner. It must have probative value in proving or disproving the material facts.

The judge must also find that the evidence is reliable to be used. This is often why prosecutors will bring in expert witnesses to validate that certain evidence, like ballistics tests, blood analysis, and/or other types of forensics done is completely accurate and reliable in proving guilt. Some of the evidence presented by itself might not be enough to establish this burden of proof, so experts are called in as a backup.

What is Hearsay and Is It Admissible?

Hearsay is essentially a rumor started by others that is said outside a court of law. For example, maybe the prosecutor heard from Joe Blow down the road that he heard from his friend that the defendant robbed a liquor store. Of course, the prosecutor may try to get this entered as part of the record, but it’s generally known as being inadmissible. Typically, hearsay is unreliable testimony. You don’t know if Joe Blow really did hear that or not and it can’t be proven or used against the defendant.

Having the Right to Remain Silent

The Fifth Amendment to the U.S Constitution states that no person can ever be compelled to witness against himself in a criminal court case. That means the prosecutor can’t call you up to the stands to make statements or testify against or for yourself. You have a right to do this, but oftentimes the defense convinces the defendant not to take the stand, less they complicate the case for them. You also have a right to refuse to provide evidence against yourself that might incriminate you in a crime.

Exclusionary Rules in Court

Once again, it’s important to note that every defendant has rights when facing a trial and a jury of their peers. They have rights that must be upheld from the moment they’re arrested and read their Miranda rights. If these rights are violated at any point during the arrest, investigation, or leading up to and including the trial, then the defense has an opportunity to ask that evidence be suppressed. This would be evidence obtained by prosecutors and/or police.

The worst thing anyone in law enforcement can do is violate the rights of any American citizen, even if it seems obvious they’re guilty. Every person has a presumption of innocence until a trial and jury finding proves otherwise. You even have a right under the Fourth Amendment against searches of your home, vehicle, and other property without a warrant. The Fifth Amendment states you cannot be forced to incriminate yourself in any crime.

The Sixty Amendment affords you the right to have an attorney present when being questioned. The officers must read you your Miranda rights before they begin questioning you. Any evidence that is being collected while violating any of these rights is considered by the court as “fruit of the poisonous tree” and often inadmissible.

So, the only way a defendant can have evidence against them suppressed is if they can reasonably assert that the evidence was gained or obtained against their Constitutional rights and privileges. This type of thing does routinely happen and court cases have been thrown out because of it. If you’re unsure of your rights, contact a defense attorney right away.

A defense attorney will be able to help you understand what your rights are and can guide you throughout the entire process from arrest to conviction and the trial. If your rights are violated, they can ask the court to suppress specific evidence obtained while that happened. You definitely don’t want to endure the process yourself without the knowledge you need to fully defend yourself and your rights. 

Read one of our recent blogs here: How To Protect Yourself From A False Domestic Violence Charge?

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Can Tangible Evidence be Admitted if it Was Discovered Because of a Miranda Violation?

We’ve all seen the cop shows on TV and witnessed a police officer giving a suspect a speech about his or her rights. Whether it was a drama, like Law & Order, or a reality show like COPS and LIVE PD, this speech (or warning) is called Miranda rights. Miranda rights are essentially basic constitutional rights given to every American by the Fifth and Sixth Amendments. It’s not just important for an officer to read a suspect their Miranda rights, it’s the law. If you were not given your Miranda Rights you should speak to a criminal defense attorney.

It’s essential for the suspect to know what their rights are before the suspect was taken into custody and interrogated or questioned. If all that happens before the suspect knows their rights, then any information that they’ve given to the officer may not be admissible during the court hearing. Even if it’s a full-on confession of the crime, if they didn’t receive their Miranda rights before they made the confession, the court can throw out the case.

The Origin of Miranda Rights

Officers reading suspects their Miranda rights started back in 1966 after the US Supreme Court decided in favor of a man named Ernesto Miranda. He was arrested in Arizona for stealing eight dollars from a bank worker and was taken back to the police station for several hours proceeded to course the suspect into a confession. At no time during that time did the police ever tell Ernesto Miranda that he had any rights, much less the right to be silent or to have a defense attorney present while being interrogated.

After this case, the Supreme Court made a ruling that said that police officers must advise every defendant they arrest of their fifth and sixth amendment rights and that they must not continue any type of interrogation if the suspect chooses to remain silent. Police also may not demand a confession or continue to interrogate if a suspect wants a lawyer present. These are basic rights we have so that we are not forced to self-incriminate ourselves.

The problem with Miranda rights that we sometimes see today is the point at which a police officer must decide to read a potential suspect their rights. Yes, it’s required when a police officer decides to take someone into custody. But what if someone decides to speak to the police voluntarily? At what point during that formal and voluntary discussion should a police officer advise someone on their rights?

What About Confessions of Guilt?

When a person admits that they’ve committed a crime, this can be used as very powerful and impactful evidence against them in court. It can sometimes be all that’s required to proceed with the court hearing. Still, every criminal defendant has a right to not self-incriminate themselves. If you’ve never been arrested, you might not understand how the police use tactics to get an involuntary confession or to coerce/force someone to admit to guilt.

In this instance, it is not legal for a police officer to course or force involuntary admission of guilt. If this happens to you, in your court case what undoubtedly be tossed out, even if you were guilty. It’s interesting to understand how someone who is guilty can have their cases tossed out, but that’s because the police violated the defendant’s rights. He or she wasn’t aware of their rights at the time of the interrogation or questioning.

To explain this better, police officers have a way of questioning or pressuring someone in a coercive manner. They can force the issue while denying a person the right to their own free will. They can make demands and threats without telling a person with their rights are. You have the right to remain silent, but the police can violate that right. You may want to talk to a lawyer, but the police won’t let you talk to a lawyer. This stuff has happened and has been known to happen.

Here’s a quick example: with say a potential suspect is being chased by the police and they end up wrecking their car and getting injured. We’ve seen this happen on plenty of cop shows over the years. What then happens if the cop tells the suspect that the only way they’ll be able to go to the hospital and get medical treatment is if they confess to a crime? That would be involuntary coercing of the suspect. Of course, they would admit to guilt in that instance, even if they were guilty of what the police officer was accusing them of doing.

What Are Other Coercive Police Tactics?

We’ve also seen a lot of instances in movies in which the police acted as bullies. They can play the good cop, bad cop game where the bad cop gets angry and in-your-face. They can threaten physical violence, pull their guns out, or even rough up the suspect to force them to admit guilt. They can take other actions like preventing the suspect from being able to eat, use the bathroom, sleep, or other inhumane tactics to force a confession.

Even things like making false promises and saying that the suspect will be charged if he confesses right now or that they will be lenient on him can be considered as well. You have rights that require police not to treat you in this way, even if you did commit the crime. You are innocent until proven guilty which is why cops can use extreme tactics to force the admission of guilt.

Most police officers won’t use the tactics mentioned above. Police officers do have rights themselves and can legally threaten to arrest a family member if they are also involved in a particular crime. They can also lie, but these don’t go against the rights of the suspect. If it’s the suspect who starts the conversation before they receive their Miranda rights, then it most likely will be considered involuntary.

Other factors include the age of the defendant, where they have family members with them or not, and if someone is drugged and or as a mental condition that prevents them from being able to speak for themselves.

Read one of our latest blogs: How Does Bail Work In New York?

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Social Media Can Be Used Against You in a Court of Law

One of the main reasons for the popularity of social media is timely updates. It has made it easy for people to be connected with their friends and family and you can know what is happening in their lives at any given time. What many people might not know is social media can be used against you in a court of law. That is why it is important that you look for Long Island criminal defense lawyer if you’re involved in a criminal case as you want to make sure there are no loopholes with the defense.

You should be very careful with what you post on social media if you have an ongoing court case especially if it is a crime related.

How Social Media Could Be Used Against You in Court

Everything you post will be subject to scrutiny and the defense will always be looking for even the tiniest bit of detail to help with your case. A good criminal defense attorney will ensure that you’re not doing anything to jeopardize the case and that includes what you post on social networks. If you’re looking for an experienced attorney, you can always reach out to Mirsky Law Firm.

Posts on Social Media are Permissible as Evidence

If you think that your “private” posts can’t be used against in you a court of law, you have to think again. Nowadays, a judge will be more than willing to admit social media content as evidence in a case. There are circumstances where private social media messages can be obtained and be used as evidence. This due to the fact that the limitation of illegally obtained evidence is applicable for social media posts.

What this implies is that private messages exchanged via the popular social media sites like Facebook, WhatsApp, Instagram, and Twitter will be used as evidence as long as they have been discovered by a civilian and not law enforcement.

This is particularly true for personal injury cases. One might claim that an accident has led to serious injuries and he or she can’t move freely. This could be a big contrast to the pictures posted on social networks of the person smiling and going about the daily activities just like any other normal person. The images and posts could be used against you just to prove the extent of the injuries are not as severe as you claim.

Social Media and Criminal Defense

Even when it comes to criminal defense, the general idea still holds. You might be involved in a DUI case and yet you posted pictures hanging out in a nightclub before the incident happened. This is damning evidence that could be used against you. The same case applies to probation. Your social media posts could be used to prove that you’ve violated the terms of the probation. You will only be making things easier for law enforcement and prosecutors. Social media can seriously damage your argument in almost every situation.

Social Media Use

If you or a family member is involved in a criminal case, the best thing you can do is to avoid social media completely. This includes all social media sites, especially the popular ones because they’re easily accessible.

In addition to refraining from social media, you also need to make sure that your friends and family are careful about what they post especially if it involves you as it could lead to implications. You shouldn’t delete social media posts without contacting your lawyer as this could make the court suspicious of your actions.

Public Social Media Posts

It should be noted that public social media posts do not count as illegally obtained evidence. The prosecution will be doing nothing illegal when they go through your social media feed to look for evidence. This could also apply to photographs taken or published with someone else that could act as evidence for the case.

Deleting Your Social Media Posts

It will not be wise to delete your social media posts when you’re involved in a criminal case. There is a high chance that the prosecution might have gone through your social media and taken screenshots already and deleting the posts will only make things worse. A court might order a negative inference because of trying to interfere with evidence. This could have serious implications for your case. That is why it is crucial you get an attorney who will provide the necessary advice on how to handle your social media accordingly. A client has the right to adjust the privacy settings for the social media account but should not do anything further that could make the court suspicious.

In addition, you should not expect the encryption technology that is used by most modern social media sites is going to prevent people from accessing your content. There was a case in 2016 where the FBI tried to get a court order to compel Apple to help in unlocking an iPhone 5 which was suspected to be belonging to a terrorist. This means that authorities could still access your devices even if they’re password protected.

Everything you share on social media becomes part of the public record even if you don’t want it to be so. In order to help with your case, you need to:

Be selective with what you share: The rule of thumb is not to share anything that you wouldn’t be comfortable telling the public.

Check your internet security: Make sure that your online activity is not being tracked. You can use a VPN when accessing popular websites.

Looking for a Criminal Defense Attorney

It will be hard to maneuver the legal system if you’re not experienced in law. That is why you need to hire an experienced criminal attorney for your case. A criminal case can have serious consequences even if you’re the innocent party. A shoddy attorney will not get you the representation that you deserve. You can reach out to us for the best criminal defense attorney in town.

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What Happens When An Eyewitness Misidentifies A Suspect?

You’ve seen it a hundred times in courtroom movies and TV dramas. An eyewitness to a crime points dramatically at the defendant and says something like, “He did it.” Usually, the music rises at this point, and the guilty verdict is inevitable. But that’s only for television and the movies.

In real life, even though thousands of people are sent to prisons in the U.S. each year for criminal convictions, not all of them are guilty of committing a crime. This is where an assault and battery lawyer can help.

For decades, research has been casting doubt on the reliability of eyewitness identifications of criminal suspects. In fact, researchers have compiled substantial evidence that the impressionable nature of memory and perception inevitably makes eyewitness testimony unreliable.

WHAT IF YOU ARE WRONGLY ACCUSED OF A CRIME?

Still, prosecutors routinely rely on eyewitnesses to deliver crucial testimony against criminal defendants. Can you be convicted for a crime that you didn’t commit on the basis of a misidentification? If you are wrongly charged with a crime in New York, what are your options?

If you are charged with any felony or with any misdemeanor in New York City, it is imperative to contact and meet with an experienced Long Island criminal defense attorney as quickly as possible.

WHY IS EYEWITNESS MISIDENTIFICATION A GROWING CONCERN?

Eyewitness misidentifications in criminal trials have been a growing concern for nearly two decades. That’s because DNA evidence is now being used routinely to prove irrefutably the innocence of persons who had been previously convicted on the basis of eyewitness testimony.

eyewitness testimony

How does misidentification happen? Here’s an example. Let’s say that someone is shot and dies in front of several witnesses. One witness claims that you are the person who pulled the trigger and that you immediately fled.

This alone gives the police sufficient cause to arrest you and launch an investigation. If your case goes to trial, and if the trial jurors believe the eyewitness, it is conceivable that you could be convicted and imprisoned for manslaughter or even for murder.

HOW OFTEN DO EYEWITNESSES MISIDENTIFY SUSPECTS?

Juries do tend to trust eyewitnesses, but research tells us that eyewitnesses can misidentify suspects and defendants for a variety of reasons related to memory and perception.

handcuffs

According to the Innocence Project, wrongful eyewitness identifications played a role in seventy percent of 364 criminal convictions that have been overturned in the U.S. since 1992. Witnesses simply were wrong. For whatever reason, they contributed to an innocent person’s conviction.

If you are charged with a crime in New York, if you are innocent of the charge, and if your attorney cannot have the charge dropped or dismissed, you should not accept a plea bargain. Rather, you should insist on your right to a trial by jury.

HOW WILL A DEFENSE LAW FIRM IN NY CHALLENGE A MISIDENTIFICATION?

If you are tried for a crime because an eyewitness has misidentified you, an accomplished defense lawyer will challenge that testimony by asking questions like these:

  • Did the witness know the defendant prior to the crime?
  • How well could the witness see? Was it dark? What lighting was being used?
  • How far away was the witness? Was his or her vision obstructed in any way?
  • Was the witness impaired by drugs or alcohol? Does the witness have a vision problem?
  • How much time elapsed between the crime and the (mis)identification?

In 2017, the New York Legislature adopted legal reforms aimed at reducing the number of wrongful convictions and eyewitness misidentifications. What can be the consequences of eyewitness misidentification?

WHY IS THE OTIS BOONE CASE SO IMPORTANT IN NEW YORK?

For Otis Boone, 27, eyewitness misidentification meant seven years in prison. In 2017, New York Appellate Court judges ordered a retrial and required that going forward, New York judges must explain the “cross-race effect” to jurors in cases involving eyewitness identifications.

The cross-race effect is the tendency to recognize more easily faces of one’s own race. In a study of real court cases, cross-race eyewitnesses made correct identifications in only 45 percent of the cases, while same-race eyewitnesses made correct identifications in 60 percent of the cases.

At his retrial earlier this year, Boone was acquitted of robbery after attorneys told the New York Court of Appeals that the cross-race effect made it impossible for the witnesses to identify Boone with absolute certainty.

ARE THERE OTHER REASONS FOR EYEWITNESS MISIDENTIFICATIONS?

Along with the cross-race effect, other reasons for eyewitness misidentifications include:

  • Lineups: Police officers who conduct lineups may subtly encourage a crime victim to choose a suspect out of a lineup – even if no one in the lineup perpetrated the crime.
  • Stress: Victims who are exposed to stressful circumstances (like having your life threatened with a firearm) may not remember important details about a person’s appearance.
  • Time, distance, and lighting: If a long period of time has elapsed since the crime, if the lighting was poor, or if the witness was some distance from the perpetrator of the crime, an eyewitness identification probably will not be reliable.

mistaken witnesses

Especially after the Otis Boone case, the courts in New York are taking every measure to avoid basing convictions on eyewitness identifications alone.

WHAT SHOULD YOU DO IF YOU ARE WRONGLY ARRESTED?

If you are arrested in New York City for a crime – any crime – on the basis of eyewitness identification (or misidentification), you must exercise your right to remain silent and your right to have an attorney present during any questioning.

Be polite and cooperative with the police, but be insistent regarding your rights. Don’t resist the officers, but do not give your verbal consent to a search of your home, vehicle, or person. As quickly as possible after an arrest, contact an experienced Long Island criminal defense attorney.

defense attorney fighting for you

If you are wrongly facing a criminal charge because of eyewitness misidentification, a good criminal defense lawyer will raise doubts about the testimony of that eyewitness. Your attorney will fight aggressively for the truth and will bring your case to its best possible conclusion.

If you are charged with a crime in New York, whether you are innocent or guilty, you have the right to be represented by a good criminal defense attorney, but you must exercise that right, take the first step, and make the call. Nothing is more important than your future and your freedom.

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David M. Mirsky Law Office
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