by The Law Office of Frank Ciardi | May 31, 2022 | Criminal Defense
Most criminal lawyers in Rochester NY deal with many illegal weapons possession cases due to New York’s strict laws in this area. However, only a handful of lawyers have what it takes to resolve these cases successfully. Basically, a lawyer must be a good negotiator and have the litigation skills to back it up. Most criminal defense attorneys and public defenders only have one of these skill sets.
The right to keep (own) and bear (carry) firearms are guaranteed in the Second Amendment.1 However, lawmakers have great power to regulate these things. For the most part, New York law doesn’t restrict gun ownership. But it does greatly restrict the ability to carry a weapon.
For example, New York is a may-issue state. Even if an applicant meets the minimum qualifications for an NYPL (New York Pistol License), local law enforcement may refuse to issue a permit. Additionally, for the most part, New York gun permits aren’t valid in nearby states, and vice versa. So, it’s little surprise that New York has one of the fewest numbers of gun permits per capita in the country.
Procedural Defenses that a Criminal Lawyer in Rochester NY May Argue
Possession cases, including illegal weapon possession cases, usually involve procedural defenses. Specifically, officers typically need search warrants before they can seize contraband. Search warrants must be based on probable cause. Generally, police officers collect evidence in lengthy investigations until they have enough proof to convince a judge to issue a search warrant.
Most gun possession cases don’t involve lengthy investigations. Typically, police officers stop people on unrelated grounds and find an illegal weapon during the course of a very brief investigation. Therefore, the seized property is inadmissible in court unless a narrow search warrant exception applies. Some examples include:
This exception often applies to automobile stops. Most criminal cases begin when an officer pulls over a motorist for speeding or another traffic violation. As the officer peers inside the vehicle, the officer may seize any contraband in plain view. This exception only applies if the stop itself was legal.
For many years, police officers claimed they smelled marijuana and then searched vehicles under the automobile exception. This assertion, which was almost impossible to prove or disprove, served as the probable cause that evidence of a crime was in the car. Now that marijuana is legal in New York, at least for most purposes, this exception doesn’t come up much.
Property owners, or apparent owners, may give officers verbal consent to search their belongings. This consent must be affirmative and voluntary. “I guess I can’t say no” is not affirmative consent. Additionally, if officers threaten to get warrants if owners don’t consent, the agreement is arguably coerced.
On a related note, what should you say if an officer asks if you’re carrying anything illegal? There’s a healthy debate among criminal lawyers in Rochester as to the proper answer.
Usually, the best response is an honest response. Most likely, the officer will find the illegal item anyway. Furthermore, there’s an old saying that if you dig yourself into a hole and you want to get out, you must first stop digging.
Illegal gun possession criminal charges are difficult to prove in court. Prosecutors must prove all three elements of possession, which are proximity, knowledge, and control.
The aforementioned automobile cases are a good example. Proximity is normally straightforward. According to New York criminal justice laws, if an item is in the passenger area, it satisfies this requirement, even if the item isn’t within arm’s reach.
Knowledge and control are different. If Tom is in the front passenger seat and a gun is under the back driver’s side seat, Tom arguably didn’t control the gun. That’s especially true if someone was sitting in that seat. Knowledge could be an issue under these facts as well. If Tom was a passenger, he may not have known the other occupants very well, which means he may not have known about the hidden gun.
These arguments may seem far-fetched to some. But a criminal lawyer in Rochester NY doesn’t have to “prove” anything. Criminal defendants must only poke enough holes in the state’s case to create reasonable doubt.
Get Help from a Qualified Criminal Lawyer in Rochester NY
Illegal weapons possession charges often don’t hold up in court. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
by The Law Office of Frank Ciardi | May 18, 2022 | Criminal Defense
About Drug Charges in Rochester, NY For College Students
Students at any of the nine colleges in Rochester, NY should be aware of the risks of drug charges for possession. A few college-age drug arrests are large drug trafficking matters. Sometimes a college student is near the top of the pyramid, and sometimes, a student is a mule.
On the other end of the scale, a few college-age drug arrests are PODP (possession of drug paraphernalia) matters. Police usually press these charges when they suspect drug use but cannot prove anything more serious. Drug possession arrests, which account for almost 90 percent of the drug crimes in New York, are in the middle. So, we’ll focus on drug possession arrests in this post for the most part.
Drug possession crimes are notorious for their harsh direct and indirect consequences. Even a misdemeanor drug possession conviction usually means a high fine and extended court supervision. These indirect consequences could include loss of financial aid, academic probation, or even expulsion for college students. A Rochester criminal defense attorney is well-positioned to reduce or eliminate these harsh negative consequences.
Academic Disciplinary Proceedings
Colleges and universities often launch disciplinary proceedings following a drug possession arrest or, more frequently, after a drug possession conviction. The possible sanctions usually include loss of financial aid, academic probation, removal of privileges, like dismissal from a fraternity or sorority, or even dismissal from the institution.
Before the college or university takes such action, the institution usually must give the student notice of the proceedings and an opportunity to be heard. That’s especially true at public colleges and universities. Private universities are not technically subject to the Fourteenth Amendment’s due process of law clause.
These disciplinary hearings are usually a lot like sentencing hearings. Judges typically don’t want to hear about extenuating circumstances at a criminal court sentencing hearing. Instead, they want to hear defendants are sorry for the way they acted, they have made some life changes, and they won’t make the same mistake twice.
Some disciplinary matters are a bit different. For example, some federal financial aid programs disqualify applicants with criminal convictions. As outlined below, a Rochester criminal defense lawyer can take care of the conviction record even if the defendant pleads guilty. So, when students are asked if they have prior criminal convictions, they can honestly answer “no.”
Frequently, the best defense is a good offense. That aphorism is true in this context. An aggressive defense in criminal court is usually the best way to deal with academic disciplinary proceedings. Drug possession cases have three basic requirements:
- Produce the Substance: Police officers rarely have search warrants when they make drug possession arrests. Therefore, a narrow search warrant exception, such as contraband in plain view or owner’s consent to search, must apply. The state must prove the exception was legit.
- Prove it was Illegal: You cannot judge a book by its cover. Substances that look like drugs aren’t always drugs. In 2019, a Georgia college student was arrested for cocaine possession. A laboratory test proved the “cocaine” was actually bird poop.
- Establish Possession: Proximity by itself doesn’t establish possession in a New York criminal court. The state must also prove knowledge and control. These additional elements are very difficult to prove, especially in automobile drug possession cases. It’s not easy to connect a defendant in the back seat with drugs under the front seat.
Prosecutors must establish all three points beyond any reasonable doubt. That’s the highest burden of proof in New York law. Circumstantial evidence alone usually isn’t enough, especially regarding the last two bullet points.
New York has a very limited record expungement and sealing law that doesn’t apply to most drug possession cases. But defendants still have legal options in this area.
We talked about one such option above. Judges have almost unlimited discretion to grant deferred disposition probation instead of regular probation. If the defendant successfully completes deferred disposition probation, the judge dismisses the case, so there’s no conviction record.
Probation is easier to complete if the judge cuts probation short successfully. Once again, judges have a lot of discretion in this area.
According to the New York Code of Criminal Procedure, a judge could sentence a defendant to probation one day and discharge probation the next day.
Many college students and other defendants don’t think an executive pardon is a legitimate option. But the facts suggest otherwise.
Former President Barack Obama pardoned thousands of former drug possession defendants. Suppose a New York governor feels that drugs are a health and safety issue instead of a criminal law issue, and many people feel this way. In that case, an executive pardon is a real possibility.
Concerned About Drug Charges in Rochester NY? Consult An Experienced Attorney
Drug charges need not derail your college career. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. Virtual, after-hours, and jail visits are available.
by The Law Office of Frank Ciardi | May 3, 2022 | Criminal Defense
A Rochester Criminal Attorney Explains Social Media as Evidence
We all know social media is a big part of our lives. The average American spends over two hours a day on platforms like Facebook and Instagram. Social media can be a great way to stay in touch with people, but it can also be dangerously addictive. Social media use in criminal court is also a double-edged sword. Either a prosecutor or a Rochester criminal attorney could effectively use posts, likes, photographs, and anything else on social media.
However, the purpose of the social media evidence is different depending on who is using it. Prosecutors must use evidence to prove doubt beyond any reasonable doubt. Defense attorneys must only create a reasonable doubt in the mind of a single juror.
Applicable Laws for Social Media as Evidence
Various laws protect internet privacy and regulate social media content. However, most of these laws protect personal information, like date of birth, Social Security number, financial information, and IP addresses. Other laws address objectionable or illegal content. But for the most part, especially in terms of social media, pretty much anything goes.
Online reviews are an excellent example of the internet free-for-all. Anyone can post a positive or negative restaurant review. Frequently, highly positive reviews are paid reviews, and extremely negative reviewers didn’t eat at the restaurant.
As a result, authenticating social media posts for use in criminal court is far from straightforward. More on that below.
How Prosecutors Use Social Media Evidence
The state could use social media posts for almost any purpose. Commonly, prosecutors use it to establish intent.
Domestic assault is a good example. Defendants often argue that they didn’t intentionally injure an alleged victim. Sometimes, people really do trip and fall down the stairs. Savvy prosecutors often use prior social media posts to undermine that defense. If Eddie posted negative remarks about his wife before “she accidentally fell,” that defense isn’t nearly as compelling, especially in jurors’ eyes.
New York’s hate crime enhancement is another example. Prosecutors often use this law to charge offenses that are typically misdemeanors, such as ordinary assault, as felonies. Prior posts and likes that indicate hatred toward a protected class could be relevant in this area. Protected classes in New York include gender, national origin, ethnicity, disability, and sexual orientation.
Prosecutors cannot use social media posts to show prior bad acts, like the classic guns, money, and drug selfies. Furthermore, the information they use is subject to authentication requirements. We’ll discuss this point further in a minute.
How a Rochester Criminal Attorney Uses Social Media Evidence
Prosecutors cannot use incriminating photos or posts as evidence of guilt, but a Rochester defense attorney can use such posts to establish an alibi. Social media photos are always time and date-stamped. An obscure detail, like part of a sign in the background, frequently makes a big difference. Once again, a defendant doesn’t have to “prove” anything. A defendant only must create reasonable doubt. So, the social media picture or other post doesn’t need to prove the defendant’s innocence. The standard of evidence is much lower.
Defense attorneys can also use social media pictures, likes, and posts to undermine witness credibility. As mentioned previously, these posts cannot serve as evidence that a witness is a bad person. Technically, a Rochester defense attorney uses this evidence to prove what the witness said, not to prove what the witness said was true.
Now, for the authentication question. Even though platforms like Twitter and Facebook have been around for a decade or more, New York’s rules of evidence haven’t been updated to include social media authentication rules. So, courts usually make their own rules.
Some judges liberally allow prosecution or defense to use social media posts. However, other Monroe County judges are very suspicious of electronic evidence in general and social media evidence in particular.
Usually, social media posts are presumptively authentic. In other words, the judge assumes that the account owner posted the content.
The other side may refute the presumption with evidence the defendant shared their password or evidence the account was hacked.
The type of use could be important. Prosecutors who try to admit social media evidence as proof of intent often have a more challenging time authenticating evidence than defense attorneys using it to create reasonable doubt.
Consult An Experienced Rochester Defense Attorney
Social media posts can be evidence in court. For a free consultation with an experienced Rochester defense attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.