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Does New York Grant Immunity in Exchange For Testimony?

The right to remain silent and the right to avoid self-incrimination are basic and foundational to our criminal justice system. Without those rights, “justice” in any meaningful sense is probably impossible. The Fifth Amendment to the Constitution tells us that no person “shall be compelled in any criminal case to be a witness against himself.” That’s why a criminal suspect who is taken into police custody has a “right to remain silent.”

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The right to remain silent, although vital, is not absolute. It’s limited. It protects criminal suspects and witnesses from having to answer leading or incriminating questions about themselves, but it does not let you refuse to answer other questions that may be posed by the courts – especially questions about someone else and crimes that person might have committed.

When someone’s testimony about another person – and crimes that person may have committed – might also incriminate the witness, a prosecutor can choose to provide immunity from prosecution in exchange for the testimony. Immunity from prosecution generally means that the government agrees not to prosecute the witness for the crime that he or she might have committed in exchange for the desired testimony or other evidence.

FOR WHICH CRIMES CAN IMMUNITY BE GRANTED?

Prosecutors may elect to offer immunity to a witness when that witness can help them win a conviction. When prosecutors provide a grant of immunity to someone, a number of legal rules automatically and immediately come into play. Immunity from prosecution is a vital tool for prosecutors in New York and elsewhere, who are allowed to offer immunity for even serious crimes like kidnapping and murder. More typically, however, prosecutors will provide immunity to a suspect who has allegedly committed minor crimes in order to obtain testimony against someone who has committed more significant crimes.

Historians tell us that the first immunity statute was adopted by the British Parliament in 1710, and it was quickly copied by the American colonies. The first federal immunity statute in the United States was enacted by Congress in 1857, and it immunized anyone who testified before a congressional committee from prosecution for any matter “touching which” he or she had testified. Several legal questions arose, however, regarding the 1857 law, so in 1893, Congress passed a second immunity statute, this time clarifying the legal distinction between “transactional” immunity and “use” immunity.

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In the state of New York, a prosecutor may grant immunity to a witness in either of those two forms. Transactional immunity, also referred to as “blanket” or “total” immunity, entirely shields the witness from any future prosecution for any crimes related to his or her immunized testimony. “Use” and “derivative use” immunity, however, only prevents a prosecutor from using the actual testimony itself or any evidence derived from the testimony as evidence against the witness in a future prosecution.

WHAT DOES THE SUPREME COURT SAY ABOUT IMMUNITY?

In Kastigar v. United States (1972), the U.S. Supreme Court decided which type of immunity, “transactional” or “use” immunity, is constitutionally required to compel testimony from a witness. The Court ruled that the grant of use and derivative use immunity is sufficient to compel testimony. Many states, including New York, choose to go a step beyond what the Constitution requires. In New York, full transactional immunity may be provided to witnesses who give immunized testimony. Prosecutors at the state level may offer a witness either transactional or use and derivative use immunity, but at the federal level, transactional immunity is quite rare.

Witnesses who are compelled by a subpoena to appear and testify before a grand jury are entitled to receive immunity in exchange for their testimony. The grant of immunity for grand jury testimony, however, prevents the witness from invoking his or her Fifth Amendment right against self-incrimination as a legal basis for refusing to testify. Grand jury witnesses may be prosecuted for perjury if they make any false statements in the course of their grand jury testimony.

Any witness who refuses to cooperate with a prosecutor after being provided immunity can be held in contempt of court and penalized with fines and/or time in jail. And even with a grant of immunity, a witness in some cases may not simply walk away “scot-free.” If a prosecutor subsequently seeks a criminal indictment against a previously-immunized witness, the prosecutor will have to demonstrate that the state’s case is based exclusively on evidence developed independently of the immunized testimony.

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Someone who faces a prosecution and intends to claim immunity from that prosecution must be able to show that a prosecutor granted immunity and that the immunized testimony directly relates to the new charge. In response, the prosecution must demonstrate that all of the evidence it intends to use against the witness was developed from independent sources. It is not sufficient for the prosecution to simply deny that it is using the immunized testimony. It must prove that the evidence does not arise from the immunized testimony. If none of the evidence is independent of and distinct from immunized testimony, the court will dismiss the case.

CAN IMMUNITY BE WAIVED?

If you have been asked to give immunized testimony in a criminal case in New York, be sure that you protect yourself and consult first with an experienced Long Island criminal defense lawyer. Only a seasoned defense attorney can explain the details regarding immunity in your own situation, ensure that you do not waive immunity if you have it, and protect your other legal and constitutional rights. If you are charged with any felony or misdemeanor in the state of New York, contact a Long Island criminal defense lawyer at once for the advice and legal representation you may need.

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Because immunity is a privilege, an immunized witness retains the right to waive that privilege. A witness who has been granted immunity may sign a written statement telling the court that he or she waives any rights linked to immunity. A waiver of immunity also happens automatically when a witness has immunity but does not assert it – for example, by freely answering questions in a courtroom without mentioning previous immunized testimony. However, once immunity has been waived, the government is then able to use the previously immunized testimony against the witness.

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Murder vs Manslaughter in New York

Most people know that not every homicide is defined by the law as a murder and that murder and manslaughter are considered distinct crimes. Since different circumstances can lead to homicide for different reasons, the law in every state distinguishes several homicide charges and imposes different penalties for convictions. But for the investigators of a homicide, distinguishing between the different categories of homicide is frequently quite difficult.

Homicide cases are usually quite complicated, and a number of questions must be asked and answered. Witnesses must be interrogated, and timelines must be confirmed. Medical evidence and the cause of death are critical elements in a homicide case. It’s imperative for police and prosecutors to determine the appropriate charge because sentences are quite harsh for first-degree murder convictions and somewhat less harsh for involuntary manslaughter convictions.

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Frankly, not all homicides are even crimes. Killing someone in self-defense is not a crime, although the person who did the killing may need to prove that he or she acted in self-defense. An entirely accidental death might be an involuntary manslaughter, or it might not be a crime at all, although suspects in such cases can usually be sued for negligent wrongful death in civil courts. When one person kills – or is responsible for the death of – another, the key element when prosecutors decide on the charge is the suspect’s state of mind. Was the killing planned and pre-meditated? If so, it’s probably first-degree murder.

HOW IS MURDER LEGALLY DEFINED?

Under the common law that the United States inherited from Great Britain – law established by custom, tradition, and previous court rulings rather than by legislation – murder is defined as an intentional killing that is unlawful (not legal and not legally justifiable) and carried out with “malice aforethought.” Malice aforethought exists if a defendant intends to kill someone without any legal justification.

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However, malice aforethought isn’t necessarily limited to killings that are intentional. If a suspect inflicts serious bodily harm on someone and that bodily harm results in that person’s death, or if a suspect behaves with extreme and reckless disregard or with depraved indifference to human life, and if that behavior results in someone’s death, such actions can be legally considered malice aforethought.

Today, murder is defined more precisely by statute rather than common law, and the statutes spell out precise distinctions such as the difference between first-degree murder and second-degree murder. Even among those who kill with malice aforethought, the law considers some to be more criminally blameworthy and more dangerous than others. Although the precise details of the law may vary from state to state, first-degree murder is typically the charge when a killer has formed the intent to kill and has had an amount of time to reflect on the matter.

DOES FIRST-DEGREE MURDER COVER OTHER TYPES OF HOMICIDES?

First-degree murder is also the charge when a killing takes place during the commission of another felony such as an armed robbery or a kidnapping. In most states, even in a situation where the felon is not the killer, the felon can be charged with first-degree murder if death was a foreseeable result of the original felony. For example, if an arsonist torches a building and a firefighter is killed attempting to extinguish the fire, the arsonist can conceivably face a first-degree murder charge for the firefighter’s death.

When someone kills another person accidentally, the crime can be second-degree murder, involuntary manslaughter, or it might be no crime at all, such as an accidental traffic death.

Police and prosecutors determine the charge by evaluating how careless the defendant was – that is, by determining the defendant’s state of mind – which can be a difficult challenge. Second-degree murder happens when a defendant was aware of, but consciously disregarded, a risk that took another person’s life.

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For a charge of involuntary manslaughter, the defendant must have acted with “criminal negligence” – reckless behavior that a reasonable person would have avoided. The charge does not require that the defendant appreciated the risk before acting recklessly. The problem, of course, is deciding a defendant’s state of mind at the time of a reckless act. Courts and juries are inevitably left to rely on what the circumstances reveal and on their own impressions.

WHAT HOMICIDE CHARGES ARE AVAILABLE TO NEW YORK PROSECUTORS?

Murder is one of the most severely punished crimes in the state of New York. Anyone convicted of first-degree murder or certain second-degree murders in New York could face the death penalty, life without parole, or 15 to 25 years in prison. Obviously, anyone facing a murder charge or any homicide charge in the New York City-Long Island area will need high-quality defense representation from an experienced Long Island criminal defense attorney. New York state law actually recognizes a variety of homicide charges – eight, in fact –  including:

  • First-degree murder
  • Second-degree murder
  • Criminally negligent homicide: This is the charge if someone’s recklessness, carelessness, or indifference leads to someone else’s death.
  • Aggravated criminally negligent homicide: This is the charge when someone’s carelessness, recklessness, or indifference leads to the death of a law enforcement officer while that officer is performing official duties.
  • First-degree vehicular manslaughter: This is the charge if someone causes another person’s death while breaking a traffic law or while driving under the influence of alcohol or drugs with a suspended or revoked driver’s license.
  • Second-degree vehicular manslaughter: This is the charge if someone unintentionally causes the death of another while violating a traffic law or while driving under the influence of alcohol or drugs.
  • First-degree manslaughter: This is the charge if someone unintentionally causes the death of another person when injuring that person was the only intention, and it’s also the charge if someone is killed accidentally during the attempted murder of a third person.
  • Second-degree manslaughter is the charge if someone causes a death while committing another crime. A second-degree manslaughter charge additionally means the prosecutor believes the killing was not malicious or premeditated.

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If you become the target of a homicide investigation in the state of New York, or if you are charged with any homicide, do not answer any questions from police officers or prosecutors before consulting with an experienced Long Island criminal defense attorney. Don’t try to act as your own defense attorney – nothing is more serious in the criminal justice system than a homicide charge.

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Infographic – A Peek Into Crime Rates in NYC & Mineola, NY

This infographic provided by our criminal defense lawyers delves into the statistics surrounding violent and property crimes in NYC and Mineola, NY, as well as violent and property crimes committed in the United States. If you are charged with a crime, consult our experienced criminal defense attorneys to discuss your options and protect your rights.

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The Defense of Self-Defense

Probably the oldest legal defense put forth by those persons charged with crimes and tried by criminal courts on those charges is the defense of self-defense. We are all sympathetic to the concept of self-defense – it’s something that we all instinctively understand. The universality of the legal right of self-defense has its root in a number of historical sources. Although self-defense is perhaps the oldest legal defense and has been one of the most successful historically, the reality is that if you are accused of a crime in the 21st century in the United States, self-defense can also be one of the most uncertain defense strategies. If you are arrested and charged with a felony or a misdemeanor, discuss your options and alternatives with an experienced criminal defense attorney before settling on any legal defense strategy, and in the New York City and Long Island areas, speak first with an experienced Long Island criminal defense lawyer.

The legal right of self-defense (and by extension the right to the defense of others) is the right of persons to use reasonable force to defend one’s own life or the lives of others, including, in certain circumstances, the use of deadly force. Going back a few centuries, self-defense is a legal defense found in the Book of Exodus. However, the modern self-defense legal principle is built on the ancient Roman concept of dominium, the Roman legal principle that any attack on the members of a family or on the family’s property was the legal equivalent of a personal attack on the family patriarch or pater familias. In England, the Statute of Gloucester in 1278 allowed defendants who killed in self-defense to apply to the king for a pardon. Early modern English political theorists and philosophers such as Thomas Hobbes and John Locke poetically described the right to defend oneself as the “first law of nature.”

It is important to understand that self-defense is offered as a justification for an action rather than as an excuse for the action. In other words, by offering self-defense as a legal defense, you are not making an excuse for a crime, but rather you are asserting that no crime was in fact committed. Today in the United States, the general rule is that a person may use such force as reasonably appears necessary to defend himself or herself against an apparent threat of unlawful and immediate violence from another person or persons. In cases involving force that is not deadly, the person must reasonably believe that their use of force was required to prevent immediate, illegal physical harm. When deadly force is involved, the person must also reasonably believe that deadly force was imperative to prevent great bodily harm or death. To employ the legal defense of self-defense, you must be able to prove that someone else was about to kill, injure, rape, or unlawfully touch you imminently – that is, immediately. If you acted only because of a threat of future harm, no matter how believable the threat or how substantial the harm, you may not argue that you acted in self-defense.

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DOES THE LAW REQUIRE YOU TO RETREAT?

Many states – although not New York – no longer require you to “retreat” or to try and escape from an aggressor prior to the use of deadly force. And even in the states like New York that do require you to retreat, there is no legal obligation to retreat when retreat is unsafe or when you are inside your own home. The question of retreat in such circumstances was shoved into the media spotlight again several years ago by the controversial George Zimmerman/Trayvon Martin case out of Florida. Primarily because the state of Florida does not, like New York, require you to retreat and allows you, unlike New York, to “stand your ground,” Zimmerman was acquitted of all charges in the death of Trayvon Martin.

So what exactly does the law say about self-defense and “standing your ground” in the state of New York? It’s difficult to give a precise answer that would apply to an actual case, because every case is different and is judged individually. In the state of New York, the legal doctrine of “justification” is about proportionality and reasonableness. Your response to an attack must be proportional to that attack. If someone punches you in the nose, you are probably – in most cases – justified in punching him or her back in the nose to defend yourself. However, in that same hypothetical circumstance, you would not be justified in shooting your attacker – unless your attacker responded to your self-defensive punch in the nose by pulling out a knife or a gun. In other words, it all depends.

For a self-defense legal defense to succeed in a courtroom, the threat of attack must have been immediate. Here’s an example: if a local organized crime “enforcer” comes to your place of business and says that he wants weekly payments or he will bust your kneecaps, and you respond with force, you can’t use justification as a defense. You cannot use self-defense as a defense if you are the initial aggressor, and you cannot act justifiably in self-defense against a promised future attack. The primary legal issue in the state of New York is whether you genuinely believed that you had to use physical force to defend yourself and whether that belief was reasonable. In other words, you need to actually have believed that physical force was necessary, and it must have been a situation where an average person would come to the same conclusion. It is this second condition – the theoretical “average person’s” perception – that frequently helps prosecutors defeat a claim of justified self-defense.

Justified self-defense gets even more complicated as a legal defense when the charge is homicide and you claim that you used what the law calls “deadly force” in your self-defense. You are allowed to respond proportionally to an assailant so long as you use only “physical” force. However, if “deadly” force is used, the law is different. You may only use deadly physical force when you believe – and when your belief would be reasonable to an average person – that deadly physical force is being used against you. Secondly, you may not use deadly physical force if you have some way to retreat to safety. However, if the incident happens in your own home, you are under no obligation to retreat. This is the “castle doctrine,” the legal concept that you are allowed to defend your home if necessary without having to retreat.

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WHAT ARE THE RISKS OF A “SELF-DEFENSE” DEFENSE?

You should understand that if you are prosecuted for a crime and you choose to employ self-defense as your legal defense, you are essentially waiving your right to offer any other type of defense. By claiming self-defense, you are in fact admitting that you committed the act that you are accused of committing and that you acted with conscious intent rather than accidentally. Thus, there can be genuine risks associated with a self-defense strategy. A good criminal defense lawyer will be able to look at the specific details of your own case and advise you regarding the pros and cons of claiming that you acted in self-defense. In some cases, your attorney may recommend an entirely different defense strategy.

The reality – whether we like it or not – is that self-defense is more likely to be a successful criminal defense when it is offered by someone who is “respectable in the community” with no significant criminal record, and when the “victim” is a known criminal or a person of questionable character. Anyone with a history of violence or with prior criminal convictions will typically have a much harder time persuading a jury that their use of force was reasonable, defensive, or justifiable. If there is any question about who was the criminal and who was the victim, self-defense may quickly become difficult or impossible to prove, and when such doubts emerge, self-defense probably will not succeed as a defense strategy

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IF YOU ARE ARRESTED, WHERE CAN YOU TURN?

If you are arrested and charged with a crime in the New York City or Long Island area or anywhere else, before even considering self-defense or any other defense strategy, you must retain the legal representation you need at once and contact an experienced criminal defense attorney. Do not attempt to act as your own lawyer. Answer no questions from the police. Instead, insist – politely – on your constitutional right to remain silent and on your right to have an attorney present during any interrogation by the police. Do not plead guilty to any criminal charge or agree to any plea bargain prior to consulting with a good criminal defense lawyer.

In New York City or on Long Island, if you are charged with a crime, contact an experienced Long Island criminal defense attorney as quickly as possible. In a nutshell, self-defense can be an effective legal defense, but only in specific kinds of criminal cases. Your defense attorney will consider a number of factors, including the level of threat that you faced, the level of force that you used, your personal background, and a number of other items before recommending self-defense as your defense strategy.

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Five Ways To Protect Yourself In A White Collar Criminal Investigation

White collar criminal investigations and prosecutions are increasing in the state of New York and across the United States. Especially if you work for a corporation or a financial institution, it is imperative to avoid the behaviors that can, even inadvertently, trigger a federal white collar criminal investigation. While every white collar criminal case is unique, the signs that you are being investigated are more or less similar in almost every white collar crime investigation. If you are suspected of a white collar crime in New York, immediately contact an experienced Long Island criminal defense attorney. In no particular order, here are five more ways to protect yourself if you become a target of a white collar criminal investigation:

1. UNDERSTAND WHAT A “CORPORATE” MIRANDA WARNING MEANS

When you receive a corporate Miranda warning from your own corporation’s attorney, it’s time to retain your own personal lawyer. Most corporate employees assume that their communications with corporate counsel about a legal problem are privileged and that they are free to talk with corporate attorneys about problems at the company. They are not. A corporate attorney represents only the company itself, not the employees as individuals, and without exception, that attorney has no confidentiality obligation to employees.

In the groundbreaking case Upjohn Co. v. United States (1981), the United States Supreme Court held that in communications with corporate counsel, the confidentiality privilege is enjoyed only by the company and not by the employee. While the Supreme Court justices writing the Upjohn decision did not explicitly mention giving a warning to employees, the case has given rise to a practice called the “Upjohn warning,” in which a company’s lawyer explains that he or she represents only the company and not the individual employee with whom the lawyer is dealing. This warning is intended to ensure that the employee understands that the company can waive the attorney-client privilege at any time and may disclose the contents of the conversation between the lawyer and the employee even if the employee objects.

What does that mean for you if you are a corporate employee? If a federal prosecutor comes knocking, the company alone will determine whether your conversations with corporate counsel are considered privileged. And while you may presume that your company wants to remain loyal to you, the fact is that corporations in that situation face substantial pressure to waive attorney-client privilege. For many companies, the decision is easy. They will tell the government whatever it wants to know and hope that the company will be spared from prosecution in return for its cooperation.

As a result, in recent years there has been an increasing focus on so-called Upjohn warnings (otherwise known as “corporate” Miranda warnings). However, many corporate executives dismiss this warning as standard legal talk and assume that their company will treat their conversations with corporate counsel as confidential and privileged. Do not make that assumption or disregard a corporate Miranda warning. The hard reality is that when you receive a corporate Miranda warning, you need to retain your own attorney who will watch out strictly for your personal interests. A corporate attorney will never advise you to retain your own lawyer because his or her job is to elicit information on behalf of the corporation and not to provide legal advice or confidentiality to its individual employees. The bottom is line is that if you are given a corporate Miranda warning, you very much need to retain your own attorney as quickly as possible.

Corporate Miranda warning

2. USE CAUTION WHEN YOU WRITE AND SEND EMAILS

Another rule about everyday activities that will help you steer clear of white collar prosecutions is to be careful about what you say in your emails. Everything you say in an email can and will be used against you by the government in a white collar criminal prosecution. Every email you send is recorded somewhere and will remain available to the government for years to come. Never assume that the person receiving your email will be the only person reading it.

Absolutely avoid aggressive or “loose” language in any emails you send. Emails with phrases such as “killing” the competition, checking with “inside” sources, and, worse of all, “we shouldn’t be talking about this,” can, even years later, be twisted to look surreptitious and criminal regardless of your original intention or meaning. In almost every white collar criminal investigation, the government targets a few colorful emails that make the person look guilty. The bottom line is that sensitive topics must be dealt with only in face-to-face or telephone conversations. Always assume that every email you compose and send will be read later – by a party you that did not intend it for – and interpreted in the worst possible light.

3. AVOID ANYTHING THAT COULD LOOK LIKE ACCOUNTING FRAUD

Another risk factor is the degree to which your company’s profitability depends on accounting. Accounting can work for you, and it can also work against you. Anything that seems like a clever accounting maneuver will later, in the harsh light of a business failure, look like accounting fraud. If there is a great deal of attention given to how your corporation accounts for revenue, there is a tendency for prosecutors to charge that management either pressured or deceived the accountants into using accounting practices designed to mislead shareholders and the public as to how well the company was doing. Accounting fraud is a basic tool used by many white collar criminals, and more often than not, it is the non-accountants who find themselves accused of accounting fraud. Just because you are not an accountant or responsible for accounting doesn’t mean that you won’t be accused of accounting fraud. If accounting decisions are crucial to your business, make sure that you have clear guidance about what information needs to be disclosed to the accountants and auditors.

4. GO WITH YOUR INSTINCTS

If something doesn’t feel right in any business situation, it probably isn’t. Many white collar criminal defendants can point to an exact moment when they realized that something was not right in their business dealings. A person’s reticence to speak up or take action at that moment can swiftly lead to serious legal trouble. Federal prosecutors don’t limit their investigations to the architect of a particular crime; rather, they look to investigate every person who was directly or even indirectly complicit in the criminal activity.

Federal and state laws governing white collar crimes typically do not recognize any concept of “relative” responsibility, so in most white collar cases, the least culpable member of a criminal conspiracy will be punished as harshly upon conviction as the central figure or “mastermind.” Corporate executives are presumed to know everything that happens at their companies, and it is genuinely difficult for an executive to argue that he or she didn’t have enough information to know that something fraudulent was happening. The bottom line here is that if something feels suspect or seems too good to be true, it most likely is. Always go with your instincts and proactively remove yourself from a questionable situation as quickly as possible.

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5. DO NOT ATTEMPT A COVER-UP

Attempted cover-ups are usually worse – for those conducting the cover-ups – than the original crimes they are attempting to conceal. For example, in the cases of Barry Bonds and Martha Stewart, both celebrities were convicted not for the crimes that initially led investigators to them but for their efforts to cover up those crimes. Because it is often easier to prove than the original crime, a botched cover-up can quickly become the focus of a prosecutor’s investigative efforts. An attempted cover-up may become “smoking gun” evidence that an “original” crime was committed by those conducting the cover-up. A prosecutor can reasonably argue that a defendant knew what he or she did was illegal because the defendant tried to cover it up by lying, deleting emails, contacting others to coordinate their stories, and similar actions. Ordinary people – the kind who sit on juries – fully understand that these are the actions of someone with a guilty conscience. If your defense to a white collar criminal charge is “I didn’t think that I was doing anything illegal,” any effort to cover up the alleged crime will cast substantial doubt on the veracity of your defense.

If you become the target of a white collar criminal investigation, do not try to wrangle or manipulate your way out of it. It’s best to hire your own lawyer and say nothing, even if it means taking a temporary public relations hit. The problem with trying to clear your name at the front end of the investigation is that you don’t know what evidence the prosecutors possess, and you can make statements that you think are harmless but that later come back to haunt you during the investigation or prosecution.

The best way to protect yourself during a white collar criminal investigation is to consult with and adhere to the advice of a reliable and experienced criminal defense attorney. If you need to learn more about white collar crimes and white collar criminal investigations in the state of New York, let us answer your questions and address your concerns. If you need legal advice or representation regarding a criminal matter in the state of New York, contact an experienced Long Island criminal defense attorney as quickly as possible.

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Weapons Crimes And Charges On Long Island

Guns laws in New York have been changing and evolving – and getting harsher – for decades. Anyone selling firearms in New York must obtain special licensing and comply thoroughly with state and federal gun laws. Any failure to comply with any aspect of New York’s gun laws is a serious crime in this state. If you are charged in the New York City area with illegally selling guns or with any violation of New York gun laws, speak at once with an experienced Long Island criminal defense attorney.

One of the most serious crimes in the state of New York is the criminal possession of a weapon. Although the law allows for varying “degrees” and punishments, criminally possessing a weapon in New York is generally considered a violent offense requiring a minimum term of incarceration.

Criminal possession of a weapon in the second degree is a class C felony punishable by up to 15 years in prison. A possession in the third degree is a class D felony and punishable by up to 7 years in prison. Finally, a criminal possession of a weapon in the fourth degree is a class A misdemeanor and punishable by a maximum of one year in jail. Any of these charges could also lead to deportation for any defendant that is not a citizen of the United States.

The possession of an unlicensed firearm is illegal in New York with no exceptions. If you possess a loaded firearm away from your home or business without a permit, you can be charged with criminal possession of a weapon in the second degree. Even if you have no criminal history, a conviction for criminal possession of a weapon in the second degree carries a minimum sentence of three-and-a-half years in state prison.

Taking part in any way in the illegal distribution of firearms is a crime even if you are not in physical possession of a weapon. Whether you are importing, exporting, transporting, packaging, or simply seeking buyers and arranging transactions, you can be convicted of gun trafficking. Specific charges may be more or less severe depending on the type and amount of weapons involved. If modified firearms or automatic weapons are involved, the charges and punishments will be increased. Charges and punishments are also stiffer if the firearms are stolen. In some cases those convicted of trafficking in firearms can face up to 25 years in prison.

Misconceptions About Weapons Charges

Anyone who watches cop shows or detective movies might be familiar with stories of bad guys opting for fake guns in the hopes of avoiding more serious criminal charges if caught committing a crime.  Unfortunately, this idea is largely a legal superstition that has no bearing on New York law.  In New York, the fact that a weapon used in an offense was fake or imaginary is no defense against serious criminal charges.  In most jurisdictions, it is not the legitimacy of the weapon that is important, but the level of fear or apprehension that the supposed weapon creates in the mind of the victim.

Even though most victims of criminal offenses involving weapons will report a feeling of fear, the actual emotion is not required to successfully prosecute a charge for a crime like armed robbery or assault.  “Anticipation” is a better word.  If a person anticipates the threat of death or serious bodily harm, whether or not the source of the anticipation is real or fake, the creator of that anticipation may be criminally liable for assaulting or otherwise committing an armed offense against the victim, just as if the weapon used had been real.

The state of New York punishes crimes that involve weapons, real or fake, with stiff penalties.  If found guilty of a weapons related offense, a suspect could face several years in prison.  This is in addition to the stigma that will be attached by society to anyone accused of a weapons related offense.  Even without evidence or a conviction, simply being accused of a serious crime involving a weapon can have dire consequences on a person’s ability to live a normal life.  It is not uncommon for those accused of serious crimes to feel as if everyone in the whole world, even their friends and family, have turned their backs on them.

Exercise Your Rights

Under the American criminal justice system, suspects have the right to be considered innocent until found guilty.  This means that no matter how serious the charges against a person, the accused has the right to tell his or her side of the story in an unbiased court of law, as well as the right to pose questions to accusers under oath.

Another right which every citizen enjoys, whether accused of a crime or not, is the right to remain silent.  This means that police, investigators or agents can’t force a person to make a statement if the person doesn’t want to.  When a person is accused of a weapons related offense, attorneys recommend that the accused remain silent except to ask for legal counsel, and to find experienced legal counsel as quickly as possible.

Hire A Long Island Weapons Charges Attorney

If you are arrested and charged for any weapons crime in New York, don’t try to act as your own lawyer, exercise politely your right to remain silent, and insist on your right to have an attorney present during any questioning. Then as quickly as possible, retain the counsel of a skilled Long Island criminal defense attorney who can dismantle the prosecution’s case, ensure that any searches were conducted legally, punch holes in the police officers’ stories, determine whether the weapon was operable, and provide evidence and testimony on your behalf.

Being charged with a gun crime does not mean that you will be convicted – a prosecutor must prove your guilt beyond a reasonable doubt. If you’re accused of violating any New York gun law in Mineola, Nassau County, Suffolk County, or anywhere in New York City, fight the charge and put your case immediately in the hands of an experienced Long Island criminal defense attorney.

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What You Must Know When You Get Stopped By The Police

At some point in every driver’s life, they will likely be stopped by the police. The overwhelming majority of those stops are for genuinely minor reasons: reasons like failing to use your turn signal, a burnt-out brake light, or an expired license plate. However, if the police have any reason to suspect that you might be guilty of something more than a traffic infraction, that simple traffic stop can rapidly escalate into something much more serious. If you are suspected of a crime under these circumstances, it’s imperative to know and exercise your legal rights. And if you’re arrested for any reason after being pulled over by the police, contact our experienced Long Island criminal defense lawyers as quickly as possible.

When Can the Police Search You?

When are the police legally allowed to search your car? Police searches of automobiles are always a controversial legal issue. Driving is regulated by law and takes place in public, so a car has less legal protection from police searches than a home does. Constitutionally and legally, precisely where is the line? In most cases, police officers really don’t need the warrant to search your vehicle. If you are charged with a crime in New York City or near the area, after a search of your car, truck, or van, get immediate help and call a knowledgeable Long Island criminal defense attorney. 

Vehicle searches by the police are strictly governed. If the police stop you and believe that you are armed, you can be asked to step from the vehicle and you can be searched. The courts allow police officers to ensure their own safety. If illegal drugs or other contraband are discovered during this kind of a pat-down, the items can be confiscated, you can be charged, and your rights have not been violated.

Your vehicle itself can be searched if the police believe that they are in danger. If they have “reasonable cause” to believe that your vehicle contains evidence relating to a crime, they may also search your vehicle without a warrant. A “hunch” isn’t enough, but your answers to an officer’s questions could (plausibly) provide probable cause, so it’s wise to exercise your right to remain silent. Probable cause can also come from 911 calls, informants, or police observations of the vehicle. A decision by the U.S. Supreme Court now allows the police to stop anyone solely on the basis of an anonymous, unconfirmed tip.

The police also have the right to search impounded vehicles.

If you are arrested and then charged with a specific crime on the basis of a traffic stop and vehicle search, one possible defense is that the “reasonable cause” was not at all reasonable. You’ll need an attorney who routinely handles criminal cases involving traffic stops.

If you are asked to consent to a search of your vehicle, politely refuse. Always be as friendly and cooperative as possible with the police while vigilantly guarding and exercising your rights. If you give your permission, the results of the search will be admissible in court, even if there’s no initial probable cause for a search. Of course, if you are stopped for a routine traffic offense and an officer sees evidence (such as firearms, drugs, or open alcohol containers) in plain sight, you and your car can be legally, thoroughly searched on the spot.

If you are arrested on the basis of a vehicle search and seizure, discuss your case with an expert criminal defense lawyer so you can get sound legal advice. A good defense attorney can provide an aggressive defense and fight vigorously for justice on your behalf. If you are arrested in New York City or Long Island after a vehicle search and seizure, retain the counsel of a well-known Long Island criminal defense lawyer immediately.

Exercise Your Right to Remain Silent

The criminal justice system isn’t what you see on television. Not all cops are virtuous, not all lawyers are glamorous, and certainly, most suspects are neither evil nor insane. In fact, if you’ve been arrested for a crime in New York City or Long Island, you’re probably a very normal and regular person who has been either falsely accused, or else you just made a bad decision. Either way, the police can arrest you in New York if they have probable cause to believe that you are committing or have recently committed a crime, and they can also take you into custody with a properly executed arrest warrant. After you have been arrested, the police must read your Miranda rights to you if they plan to interrogate you. If you’re unsure, your Miranda rights must be stated as follows:

  • You have the right to remain silent.
  • Anything you say will be used against you in a court of law.
  • You have the right to consult with an attorney and to have that attorney present during questioning.
  • If you cannot afford an attorney, one will be appointed for you if you desire.

Most defense attorneys will strongly discourage you from answering questions. Be polite and courteous; however, just say “I choose to exercise my right to stay silent” or you could say “I rather not answer questions until my attorney is present.”

If you are being interrogated without being arrested first, the police don’t have to read your Miranda rights; however, you can still say you want to wait for an attorney.

Hire A Long Island Criminal Defense Attorney

Obviously, every case is different. When you’re pulled over by the police, be cooperative and friendly, but stay polite and persistent with your right to remain silent when being asked questions. If the police ask for permission to search your vehicle, politely decline. If you’re being charged with a crime in New York City or Long Island on the basis of evidence discovered during a traffic stop, discuss your case, your rights, and your options as quickly as possible with a knowledgeable Long Island criminal defense lawyer.

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There’s Probably A Law About That

If you grew up in the United States, you probably heard that “ignorance of the law is no excuse” a thousand times or more. It’s an old legal principle that has worked well for centuries. Since ancient times, every adult of sound mind has known that murder, assault, rape, and robbery are crimes, and until the modern era, those were very nearly the only crimes. What a different world the 21st century is. Almost anyone can accidentally break the law without even being aware of it. Hundreds of tax laws, traffic laws, financial laws, environmental laws, computer laws, and housing and employment discrimination laws – laws that didn’t exist a century ago – govern large parts of our lives. The truth today is that in some cases, ignorance of the law may actually be a legitimate excuse.

Some legal thinkers, pointing to thousands of obscure laws and regulations that impact every area of life, are rightly saying that no one can be realistically expected to know so many laws – not even lawyers, who are becoming increasingly specialized. However, ignorance of the law isn’t an accepted legal defense just yet, so if you’re charged with a crime in Mineola, Nassau County, Suffolk County, or anywhere in the state of New York, you’ll need to obtain high-quality legal representation immediately. Speak right away with an experienced Queens criminal defense lawyer. When you face criminal charges, obtaining the counsel of a trustworthy, experienced defense attorney is always the smartest decision.

Society stills expects everyone to know that murder, assault, rape, and robbery are serious crimes. But the hundreds of other newer laws and regulations aren’t merely trivial rules. They exist for a reason, and violating those laws will usually result in criminal charges.

The court does not accept that you did not know you were violating a law as a defense. It also does not care whether you committed the crime while you were under the influence of alcohol. In the state of New York, intoxication is not allowed as a defense to any sort of criminal charge. However, since a jury must determine if you acted with criminal intent, jurors may consider whether alcohol (or some other intoxicant) impaired your ability to form a criminal intent. You can not win by claiming, “I did it because I was drunk,” and the fact that you may not remember the incident is, legally speaking, largely immaterial. What your defense attorney must prove is that you had no ability to form a criminal intention. Every case is different, and every juror is different. What you need is a defense lawyer who will examine every detail of the alleged crime, present the most effective defense, and bring your criminal case to its best possible conclusion.

If you’re accused of a crime on Long Island or in New York City – whether or not you are guilty or knew it was a crime – get the legal help you’re going to need and immediately contact an experienced Queens criminal defense lawyer.

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To Testify Or Not To Testify?

If you face a charge involving a felony or a misdemeanor in Long Island or New York City, get the legal help you need at once by contacting a reputable and knowledgeable Long Island criminal defense attorney. Every criminal case is different, so don’t make any decisions without first having advice from a good defense lawyer. In fact, when you’re arrested, ensure you use your right to remain silent. Additionally, make sure you exercise your right to keep an attorney by your side during any questioning.

Most criminal cases are never tried by a jury because they are settled by plea bargaining, but if your case makes it to trial, your right to remain silent extends right into the trial court. You are never required to testify if you are a defendant, and you have the right to avoid self-incrimination. One of the general instructions jurors receive is that they are not to interpret a suspect’s silence as a sign of guilt. Still, most jurors are curious; they’d like to hear the defendant tell his or her side of the story. When you’re on trial, if you can render a calm, articulate, and comprehensive account of what happened, you can genuinely help yourself with a jury. However, if you are perceived as tense, edgy, or defensive, your testimony could hurt you.

A cross-examination can be devastating, especially in serious felony cases such as homicide or sex crime trials. Prosecutors are trained to be clever, aggressive, and relentless; their pointed questions can defeat even a thoroughly prepared suspect. If you have a prior conviction, it may also prejudice jurors against you, no matter what you say or how you say it.

So, if you’re on trial, should you testify? Again, every case is different, so you’ll need to discuss it with your attorney and seriously consider your attorney’s advice. If you’re facing criminal charges in Long Island or New York City – now or in the future – place your case in the hands of a trustworthy Long Island criminal defense attorney.

If They Had A Case, They Wouldn’t Need Your Testimony

Many people think that when the police start asking questions, that somebody is going to jail. In New York, as in every other legal jurisdiction, people are not required to answer questions from police or investigators. In many cases, the police start asking questions in order to gather evidence of a crime, often relying on the suspect to incriminate him or herself by making a statement or answering a question. Under our system of law, individuals have a right not to incriminate themselves, and also obtain the right to keep an attorney present during questioning by police to ensure that any answers or comments are not self-incriminating. 

A big part of an investigator’s job is to fish for information. Many times, individuals answering questions may not even realize that they are offering information that can later be used against them. This is why it is important for people to understand why they should not answer any questions from investigators regarding lawsuits. Attorney Jeffrey Nadrich, who specializes in hernia repair mesh complications recalls the Johnson & Johnson lawsuit where one of the company’s baby powders was accused of causing cancer in it’s users. Many Johnson & Johnson employees were asked to comment however company policy did not allow employees to speak to the media about the ongoing lawsuit. This by default worked in favor of Johnson & Johnson because it prevented any leaking of information or opinions on the topic that were not first approved by the company. Thus, Johnson & Johnson prevented self-incrimination by it’s employees.

If the police actually had any evidence of a crime, then they could move forward with a prosecution without the suspect / defendant saying a single word. In other words, if the police and state want to prosecute, suspects of criminal offenses in New York should not be afraid to make the police and the state do their jobs and prove the suspect’s guilt beyond a reasonable doubt.

The Role of Attorneys in Criminal Cases

New York criminal defense attorneys are trial advocates whose only job is to ensure that a person’s rights are maintained through the legal process and to make sure that the state proves its case against a suspect beyond a reasonable doubt. If the state fails to prove its case beyond a reasonable doubt, then the defense attorney will argue for the suspect’s freedom on the grounds that the state has failed to present the evidence necessary for a conviction.

Before going up against a New York prosecutor, suspects of crimes are encouraged to contact a New York criminal defense attorney for guidance and representation. Getting an attorney early on will ensure that the suspect’s rights are not infringed and that the suspect is treated as fairly by the system as possible.

Before Contact with an Attorney is Made

Generally, attorneys are hired after a person has been accused of and arrested for a crime. During the period between an arrest and getting legal counsel, suspects of crimes in New York are advised to never speak to police regarding the charges or accusations. With the majority of cases, a person’s own statement can end up hurting them the most.  While statements can seem innocent, police are only trained to follow a checklist and base their decision to decide if they should make an arrest due to the certain words being said (some cases are not full sentences), that are reported to them. To avoid any confusion as to the role that a suspect played in a crime, the suspect should instead only answer questions or make comments through experienced and competent legal counsel.

If you face a criminal investigation, the choices you make with your initial contact with police can often distinguish the difference between acquittal and conviction. In the New York City area, if you are charged with a crime, you protect yourself and your rights by speaking to a reputable criminal defense lawyer.

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In Real Life, Entrapment Rarely Happens

According to the New York Times, the federal government has significantly expanded undercover operations in recent years, with officers from at least forty agencies posing as business people, welfare recipients, political protesters, and even doctors or ministers. At the Supreme Court, small teams of undercover officers dress as students at large demonstrations outside the courthouse to look for suspicious activity. At the Internal Revenue Service, dozens of agents chase alleged tax evaders by posing as tax preparers, accountants, drug dealers, or even as yacht buyers. And at the Agriculture Department, more than 100 undercover agents pose as food stamp recipients in thousands of neighborhood stores to spot suspicious activity and fraud. If you’re charged with a crime in the New York City area on the basis of an undercover investigation, get legal representation immediately and consult an experienced Queens criminal defense lawyer.

Everyone has heard of entrapment, and we know that the police aren’t allowed to “entrap” suspects. The popular conception is that entrapment happens if a police officer sells you illegal drugs and then busts you for possessing them, or if a police officer poises as a prostitute, suggests a transaction, and then arrests you for agreeing to the transaction. The truth is, these examples may or may not be entrapment – we would have to know more details. If you are charged with a crime in Queens or in New York City, and if you believe that you’ve been a target of entrapment, contact an experienced Long Island criminal defense attorney at once.

Entrapment legally depends on a number of complicated factors. If you offer entrapment as your defense, unlike with most other defenses, you’ll have to prove that you were entrapped. This means admitting that you committed the crime you are charged with but explaining that the only reason you did it is because you were tricked by the police. Entrapment is not easy to prove, and if you’re charged with a crime in New York, your defense attorney may suggest a different defense strategy. If entrapment is your defense, New York requires you to prove that:

  • you were “induced or encouraged” to commit the crime by a public servant (or someone working with a public servant) who was seeking to obtain evidence against you for a criminal prosecution
  • the methods used to obtain that evidence caused you to commit a crime that you were not otherwise disposed to commit

The key phrase in the law is “a crime that you were not otherwise disposed to commit.” This is why it is so difficult to win an acquittal by using the entrapment defense. The people targeted by the police are the people who are probably going to break the law anyway. The police understand the rules of entrapment and are trained not to cross the line. You may “feel” that you’ve been entrapped, but to use entrapment as a defense, you must prove that you were entrapped according to the precise legal definition of entrapment in New York. If you’re charged with a crime in the five boroughs or anywhere on Long Island, you should obtain legal help immediately by contacting an experienced Queens criminal defense attorney.

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Mirsky Law Firm

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114 Old Country Rd, Mineola, NY 11501

Phone: 516-774-1811

David M. Mirsky Law Office
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