by The Law Office of Frank Ciardi | Jun 29, 2020 | Criminal Defense
In New York, disorderly conduct or public intoxication infractions are not technically criminal cases. Instead, they are violations. Many people mistakenly believe that a violation is the equivalent of a traffic ticket. But you cannot go to jail for a traffic ticket, and you can go to jail for a violation. A fundamental rule of criminal defense is that if jail time is a possibility, you need a defense lawyer Rochester.
Truthfully, very few people receive jail sentences in these cases. However, depending on the facts, probation is a real possibility. Court supervision usually includes restrictive conditions, such as paying a fine and attending self-improvement classes. If you plead guilty or no contest, these conditions are almost inevitable. If you partner with a defense lawyer Rochester, there is a good chance you will face no consequences at all.
Elements of the Offenses
Both these violations are in Article 240 of the New York Penal Law. Disorderly conduct (DOC) is usually a fallback offense. If officers cannot think of any other charges, they usually arrest people for such misbehaviors as:
- Engaging in any “violent, tumultuous or threatening behavior,”
- Making an obscene gesture or using obscene language in a public place,
- Refusing to obey a lawful order to disperse, and
- Creating “a hazardous or physically offensive condition by any act which serves no legitimate purpose.”
Defense lawyers in Rochester typically deal with that fourth bullet point. This point is quite vague and could include almost any activity which anyone finds offensive.
The act alone is not enough. Additionally, the defendant must intentionally or recklessly cause alarm, annoyance, or public inconvenience.
Public intoxication (PI) charges could hold up in court if the defendant is a danger to himself/herself or others while under the influence of alcohol or a “narcotic.” Legal drugs, such as Sominex and prescription pain pills, usually do not count.
Once again, this charge is quite broad. If Jim opens a door or walks across the street, he could be a danger to himself or others. This offense is a regulatory offense with no mental element.
How Does Defense Lawyer Rochester Successfully Resolve These Cases?
A plea to time served might be the best way to resolve these charges. Legally, if the defendant served one minute in jail, that’s the equivalent of a day. Additionally, in most jurisdictions, each day served is equivalent to three days’ credit. Therefore, even if the defendant immediately bonded out, the defendant usually has three days’ credit.
A brief jail sentence means no fine, no probation, and no other strings attached. The defendant walks out of the courtroom.
Some judges are sympathetic enough to offer time served pleas to defendants. Others are not so inclined. A defense lawyer Rochester, like Frank Ciardi, can help ensure that this offer is on the table. Prosecutors are usually willing to offer this deal. Typically, the state must call a non-officer witness who saw the allegedly dangerous or offensive behavior. In disorderly conduct cases, this witness must have been offended. Theoretical offense is insufficient.
A brief word about the fallout of a violation. It’s possible to seal these records, but frequently, this procedure is more trouble than it’s worth. Most job applications, school applications, and other forms ask about “criminal convictions.” PI and DOC are not criminal convictions.
Contact a Dedicated Defense Lawyer Rochester
Even though Article 240 cases are violations instead of crimes, it’s not a good idea to face them alone. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
by The Law Office of Frank Ciardi | Jun 15, 2020 | Criminal Defense
If you are being charged for a crime, you are probably wondering “what is a plea bargain?” Plea bargains, the term for an out-of-court settlement in a criminal case, resolve about 95 percent of the criminal matters in Monroe County. However, the nature of a plea bargain varies greatly, mostly depending on an attorney’s skill and experience.
The plea bargain system is not perfect. The Constitution says little about such arrangements because at the time it was written, plea bargains were almost unheard of. So, a defendant’s rights during plea bargains are uncertain. That’s especially true since, for the most part, the process occurs behind closed doors.
If done properly, a plea bargain is almost as good as a complete dismissal of charges or a not-guilty verdict at trial. A Rochester criminal defense attorney can reduce or eliminate both the direct and indirect consequences of most criminal cases, and that’s what it’s all about.
What Is a Plea Bargain and How to Prepare For It
Some counties are open-file jurisdictions. Prosecutors freely share the non-privileged information they have with criminal defense lawyers. That includes items like the police report, witness statements, and any physical evidence.
Other jurisdictions, however, are closed-file jurisdictions. Prosecutors only share the information federal law requires them to share, such as exculpatory evidence. And, prosecutors hang onto this information as long as possible, so a criminal defense attorney has little or no time to prepare.
So, in closed-file jurisdictions, a criminal defense attorney must conduct their own discovery. That means interviewing witnesses, filing motions to inspect physical evidence, and deposing police officers. If an attorney takes shortcuts in this area, it’s impossible to determine if the prosecutor’s offer is favorable or unfavorable.
The closed file/open file distinction is usually up to the elected District Attorney. The DA sets such policies for all assistant District Attorneys. Additionally, some DAs have limited open-file policies. Prosecutors share some information, such as the police report and charging instruments, like the indictment. If a defense attorney wants to see anything else, the attorney must make a motion in court.
Common Plea Bargain Arrangements
A “plea bargain” is actually an umbrella term for two basic kinds of out-of-court settlements. Many plea bargains contain elements of both.
Sometimes, largely based on the evidence, prosecutors agree to reduce the charges. Examples include reducing aggravated assault charges to simple assault or reducing murder charges to manslaughter. Charge bargaining is not always available. It’s illegal for New York prosecutors to reduce DUI to a lesser-included offense, such as reckless driving.
Changing prison time to probation is the classic example of a sentence bargaining plea agreement. Prosecutors often consider a number of mitigating factors, such as the defendant’s age and criminal history, when they offer a sentence bargain.
When defendants plead guilty, they can usually either plead guilty or no contest. Legally, both these pleas have the same effect. Morally, there is a difference between admitting guilt and deciding not to contest the charges.
Many plea bargains in New York, especially felonies, require an allocution. Defendants must briefly summarize what they did or at least clearly state that they are pleading guilty because they are guilty and for no other reason.
Should I Accept a Plea Bargain?
There is no definitive “yes” or “no” answer to this question. The response largely depends on the strength of the state’s evidence, the availability of any defenses, and the defendant’s wishes. Some people like to plead guilty and put the matter behind them, and others prefer to let a judge decide.
If your attorney believes the plea bargain is a favorable deal, it’s usually best to accept it, even though there is a chance a judge or jury could completely exonerate you.
Count on Your Attorney
A favorable plea bargain is usually a good way to resolve a criminal case. For a free consultation with an experienced Rochester, NY drug charges lawyer, contact the Law Office of Frank Ciardi.