by The Law Office of Frank Ciardi | Mar 16, 2023 | Criminal Defense
In New York, criminal intent usually doesn’t matter in sexual assault, rape, or sexual battery prosecutions. All these infractions are basically the same offense. The intent is a requirement in forcible touching, which is a misdemeanor. The defendant must sexually touch the alleged victim “for the purpose of degrading or abusing such person or for the purpose of gratifying the actor’s sexual desire.”[1] This provision separates forcible touching from ABC, or assault by contact, which is basically a harmful or offensive touch.
Criminal intent usually does not matter in felony sex crime cases. These cases weren’t always so straightforward. In fact, until the mid-1970s, prosecutors generally had to prove a sexual assault defendant used physical force and the alleged victim strongly resisted the defendant. Additionally, a credible witness had to corroborate all parts of the alleged victim’s testimony.[2]
Even back in the old days, sexual assault never had an intent requirement. Sexual assault, prostitution, and almost all other sex crimes, except indecent exposure cases, usually have no intent requirement. This intentional omission, which is probably a good thing for society, makes sexual assault cases harder to defend. Therefore, only the most experienced Rochester criminal defense lawyer should handle these matters.
Elements of the Offense
Third-degree rape is the most common sexual assault charge in New York. Penal Law Section 130.25 is the “date rape” statute. As many as 90 percent of sexual assault cases are acquaintance rape cases.[3] These cases have several defenses, which are outlined below. Lack of intent isn’t one of them because third-degree rape has no mental element.
Other third-degree rape scenarios include intercourse with a person who cannot consent as a matter of law, usually because the person is under seventeen.
Second-degree rape is intercourse with someone under fifteen or someone who cannot consent because of a mental deficiency. First-degree rape is sexual intercourse with “forcible compulsion.” So, this offense is much like the pre-1980s rape laws, except the alleged victim’s testimony is presumptively credible. Section 130.35 charges could also apply if the alleged victim was “physically helpless” or was younger than eleven or thirteen, depending on the defendant’s age.
Three similar criminal sexual act statutes apply to non-intercourse cases, which in New York is “oral sexual conduct or anal sexual conduct.”
Substantive Defenses
Since almost all the rape cases a Rochester criminal defense lawyer handles are acquaintance rape cases, this section will focus on Section 130.25 matters.
The alleged victim’s credibility is often an issue. Frequently, the defendant and the alleged victim were both drinking. Alcohol impairs memory.
While we’re on this point, we should touch on the issues regarding alcohol, drugs, physical restraint, and “physically helpless.”
Physical helplessness implies involuntariness. Alleged victims who are tied up or physically incapacitated are physically helpless. Involuntary alcohol or drug use could also constitute physical helplessness, although it’s harder for prosecutors to make that case.
Consent is a defense to rape and most other sex crimes. Basically, consent is a current, affirmative, and voluntary agreement to engage in sexual activity. Kissing and flirting are not consent to sexual contact. It’s certainly not consenting to sexual intercourse.
However, kissing and flirting are circumstantial evidence of consent. Is this evidence strong enough to create reasonable doubt? That’s for a jury to decide.
Note that a Rochester criminal defense lawyer need not “prove” consent or anything else. An attorney must create reasonable doubt about the defendant’s guilt.
Lack of physical evidence is a third possible rape defense. Even if a rape kit is available, this evidence only proves the two people had sex, not that they had unconsented sex. Usually, defendants must choose between a lack of evidence defense and a consent defense. Lack of consent is an affirmative defense, which basically means the actor admits to the act and argues that s/he didn’t commit a criminal act.
Procedural Defenses
This section applies to all sex crime cases, whether they are misdemeanors or felonies. Fifth Amendment violations are extremely common in sex crimes cases.
If Tim and Sarah were drinking heavily or using drugs on their date, Tim might remember having sex with Sarah, but he might not remember the details. So, when investigators arrive at his door, he may not know why they are there. Generally, investigators are very vague at this stage. They typically say something like, “we believe you may have witnessed a crime last week, we cannot go into the details here, but we can cover this ground at the station.” In most cases, Tim readily agrees to what, unbeknownst to him, is a rape interrogation.
Legally, officers don’t have to tell defendants why they’re being detained or arrested. But they do have to inform defendants of their Fifth Amendment rights. They must provide this information when they start asking questions, even if they are unrelated to the alleged rape if Tim doesn’t feel free to leave. If police officers were at my front door, I wouldn’t feel free to run out the back. Would you?
If investigators violate the Fifth Amendment, the judge typically excludes the defendant’s confession and any evidence obtained from that contact, like a DNA sample.
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. We routinely handle matters in Monroe County and nearby jurisdictions.
Sources:
[1] https://apps.rainn.org/policy/policy-crime-definitions-export.cfm?state=New%20York&group=3
[2] https://open.lib.umn.edu/criminallaw/chapter/10-1-sex-offenses/
[3] https://www.bbc.com/news/uk-scotland-43128350
by The Law Office of Frank Ciardi | Mar 1, 2023 | Criminal Defense
Going with a court-appointed defense lawyer is usually a mistake, but it’s not terrible. Tales of overworked court-appointed lawyers occasionally appear in media stories. This overwork is more common in the post-coronavirus era.[1] More than two years after lockdowns ended in New York, the criminal justice system still struggles with case backlog.
However, it’s important to remember that the attorneys featured in these articles are poster boys (or poster girls) for a point the author wants to make about criminal justice, equality, or another broad topic. Additionally, overworked lawyers are typically good lawyers. It’s usually the underworked lawyers that criminal defendants should avoid. There’s generally a reason an attorney has few clients, and it’s usually not a good reason.
The choice is the biggest reason to partner with a Rochester criminal defense lawyer instead of a court-appointed defense lawyer. Defendants who work with private lawyers decide which lawyer to use. Furthermore, if things don’t work out, defendants usually have a right to fire their lawyers, even if the case is about to go to trial. In contrast, judges or bureaucrats randomly assign court-appointed lawyers to defendants. It’s impossible to “fire” this lawyer and get another one, at least in most cases, regardless of the circumstances.
Direct and Indirect Consequences
This random assignment means a court-appointed lawyer might have several decades of experience or several weeks of experience. Inexperienced lawyers often aren’t fully aware of the indirect consequences of a criminal conviction. As a result, the defendant might be blindsided by a punishment s/he had no idea might be coming.
Immigration consequences are a good example. Assume Raul is charged with aggravated assault in Rochester, NY. His court-appointed lawyer reduces the charges to misdemeanor assault, Raul pleads guilty, and the judge gives him deferred disposition probation.
Regarding direct consequences, Raul’s court-appointed lawyer did a great job. Raul doesn’t have a felony conviction on his record. In fact, if he successfully completed deferred disposition probation, he won’t have a misdemeanor conviction on his record either.
But as for indirect consequences, Raul’s court-appointed lawyer did a terrible job. Under current law, assault is a crime of moral turpitude (CMT). The dictionary definition of a CMT is an offense that involves fraud, violence, dishonesty, or misrepresentation. That vague definition could apply to almost all criminal offenses.
In this context, a CMT is basically anything the Department of State says it is. The State Department’s CMT list changes frequently. But assault is almost always on the list. Additionally, for immigration purposes, Raul has an assault conviction on his record. Deferred disposition is generally a conviction.[2]
These rules are very complex. The petty offense exception generally, but does not always, apply to CMTs. A “petty offense” is basically a misdemeanor. Furthermore, if a Rochester criminal defense lawyer successfully argues that the judge gave the defendant deferred because of a lack of evidence or a procedural flaw, the matter might not be a conviction for immigration purposes.
Lawyers often don’t know all these details because they aren’t legally required to inform defendants about collateral consequences. As far as many Rochester criminal defense lawyers are concerned, their jobs end when the judge’s gavel falls.
How to Hire a Rochester Criminal Defense Lawyer
In the 1970s game show Let’s Make a Deal, contestants often chose between a mystery prize, which could be something valuable or something worthless, and an actual prize. If you are accused of a crime, would you rather take your chances with a mystery prize or partner with an attorney with:
- Experience: Law school professors don’t teach courses about the collateral effects of criminal convictions. Only experienced lawyers are fully aware of these adverse effects.
- Accessibility: In all our years of criminal law, we’ve never met a court-appointed lawyer who makes house calls or changes his/her schedule to fit a defendant’s schedule. Private lawyers often make such accommodations.
- Dedication: Many attorneys take a few appointed cases to see if they’d like to do criminal law or to tide them over until something better comes along. That’s not the kind of advocate you want.
Only the right lawyer reduces or eliminates the collateral consequences of a criminal conviction in Monroe County.
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. Convenient payment plans are available.
Sources:
[1] https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2022/06/21/public-defenders-were-scarce-before-covid-its-much-worse-now
[2] https://www.justice.gov/eoir/page/file/1213201/download
by The Law Office of Frank Ciardi | Feb 15, 2023 | Criminal Defense
The burden of proof is the biggest difference between criminal and civil law. Plaintiffs must prove personal injury and other civil cases by a preponderance of the evidence, or more likely than not.1 Prosecutors must prove assault, murder, and other criminal cases beyond any reasonable doubt. That’s the primary reason disgraced football star O.J. Simpson was acquitted of murder charges and found liable for the deaths of two people. There simple wasn’t enough credible evidence for prosecutors to convict him in criminal court. More on that below.
Furthermore, the purpose of these two court systems is different, especially in the aforementioned murder, assault, and other violent criminal cases. Although there might be some overlap, for the most part, criminal courts punish offenders and civil courts compensate victims.
Finally, people can technically represent themselves in criminal or civil court. But without a Rochester criminal defense lawyer, it’s almost impossible to successfully resolve a criminal case. These individuals almost always receive the maximum punishment. The same thing is true in civil court, especially if the adverse party has an attorney. Most civil court proceedings are nothing like Judge Judy. They are much more complex.
Finding the Right Lawyer
Because attorneys are so important in court, finding the right one is job one. New York has more attorneys per capita than almost any other state. Nevertheless, good attorneys do not grow on trees. As you shop for lawyers, look for the following qualities:
- Dedication: If your foot hurts, you should see a podiatrist. Likewise, if you have a family law issue, you should see a family law attorney, and if you have a criminal law issue, you should see a Rochester criminal defense attorney.
- Experience: In law school, aspiring criminal and civil lawyers learn to think like lawyers. Only practical experience teaches them how to act like lawyers. Additionally, although most claims settle out of court, your attorney should have trial experience as well.
- Accessibility: There are a lot of lawyers in the Empire State, but that doesn’t mean they are accessible to their clients. Your lawyer, and not a legal assistant, should do most of the work on your case and be available to answer your questions.
When a client partners with the right lawyer, the remainder of the case is often downhill, although challenges remain. If a client partners with the wrong lawyer, the case will be a nightmare that keeps getting worse.
Rules of Evidence
We mentioned the different burdens of proof in civil lawsuits and criminal prosecutions. On a related note, the rules of evidence are different as well.
Illegally-obtained evidence is inadmissible in criminal court. Common violations include Fourth Amendment search and seizure issues and Fifth Amendment illegal interrogation issues.
Searches and seizure are only legal if officers have search warrants based on probable cause affidavits or the search and seizure was reasonable. Courts have narrowly defined “reasonable” searches to situations like owner consent, which is basically a waiver of a Fourth Amendment right.
Speaking of waivers, the Supreme Court recently ruled that if defendants don’t affirmatively asserts their Fifth Amendment rights (e.g. “I have a Constitutional right not to talk to you”), they waive these rights.
These provisions only apply to criminal proceedings. So, illegally obtained evidence is often admissible in civil court. However, the method could affect the evidence.
If Tina rifles through Ben’s desk drawer and finds incriminating evidence, like a receipt, that evidence is admissible in a civil case. However, although Tina has not committed a crime or done anything illegal, she looks very bad. So, the receipt or other evidence could do more harm than good. Only a Rochester criminal defense lawyer can make difficult decisions like this one.
Resolving Civil and Criminal Cases
Criminal and civil cases are different in many ways. However, they’re the same in other areas, most notably how these matters are resolved. Over 90 percent of civil and criminal claims settle out of court.2 These resolutions avoid the risk of a trial, reduce legal fees, save time, and give the litigants more control over the outcome.
Settlement negotiations in civil cases are usually quite formal. Generally, both sides meet with a mediator. This mediator, who is usually an unaffiliated lawyer, knows how to bring two sides together, even when they seem far apart.
Plea bargain negotiations in criminal court are usually more informal. A Rochester criminal defense lawyer leverages defenses in the case, like the aforementioned procedural issues, to reduce the charges, arrange for a plea to a lesser-included offense, or reduce the defendant’s punishment.
To many clients, an out-of-court settlement feels like a defeat. But a favorable settlement is a win. A bird in the hand is always worth two in the bush.
There’s a big difference between a criminal arrest and a criminal conviction. For a free consultation with an experienced Rochester, NY criminal attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
Sources:
[1] https://www.law.cornell.edu/wex/preponderance_of_the_evidence
[2] https://thelawdictionary.org/article/what-percentage-of-lawsuits-settle-before-trial-what-are-some-statistics-on-personal-injury-settlements/
by The Law Office of Frank Ciardi | Jan 30, 2023 | Criminal Defense
About a half-dozen co-conspirators assisted John Wilkes Booth when he assassinated President Abraham Lincoln in April 1865.1 Many probably didn’t know all the details of Booth’s plans, but they were still punished harshly for aiding and abetting.
Mary Surratt ran the boarding house where Booth and his gang met. Although she wasn’t directly involved in their activities, she became the first woman to be hanged by the United States government in July 1865. Dr. Samuel Mudd set the leg Booth broke during his escape from Ford’s Theater. Once again, he probably knew little or nothing about Booth or his crime. Nevertheless, a jury sentenced Dr. Mudd to life in prison. President Andrew Johnson pardoned the doctor in 1869, but to this day, his name is still “mud(d).”
The takeaway should be obvious. Criminal cases are not limited to “bad” people. Almost anyone could get caught up in an investigation simply because they associate with people who seem friendly but have committed illegal acts. As outlined below, aiding and abetting cases in New York has many moving parts. As a result, a Rochester criminal defense lawyer can often successfully resolve a&a charges.
Elements of the Offense
Surratt, and probably Mudd, may have been guilty of aiding and abetting under New York Penal Code Article 20.2 This provision applies if a person:
- Solicits, commands, importunes, requests, or intentionally aids another person, and
- The defendant has the required “mental culpability” to commit the underlying offense.
Booth and his ilk met at Surrat’s boarding house multiple times over several months. Furthermore, Booth and his co-conspirators were up to no good. There’s enough circumstantial evidence to prove Surrat intentionally aided the gang.
Likewise, there may have been enough circumstantial evidence to convict Mudd. Most likely, Booth lied to Mudd about his broken leg. If Mudd knew about Lincoln’s assassination, he probably should have put two and two together, especially if Booth was a lousy liar.
In most states, aiding and abetting is a lesser offense. For example, since Booth was charged with capital murder, prosecutors could charge Mudd and Surratt with second-degree murder.
Possible Defenses
Generally, prosecutors use conduct to prove intent. But this technique is unavailable in aiding and abetting cases. So, prosecutors must generally rely on weaker circumstantial evidence, like proximity to the crime, statements the defendant made, and the prior relationship between the aiding and abetting defendant and the primary actor. All these things are the seed of a possible defense.
The evidence is different in an aiding and abetting case, but the burden of proof is the same. It’s challenging to meet this burden of proof beyond a reasonable doubt with circumstantial evidence.
DUIs are a good example. The conviction rate is much higher in direct evidence test cases than in circumstantial evidence field sobriety test cases.3 Defendants could do poorly on these tests because they are intoxicated, disabled, tired, or for numerous other reasons.
Statements defendants make are generally inadmissible under the Fifth Amendment. Officers must read suspects’ rights before they begin custodial interrogation. This phrase means asking any questions when the defendant doesn’t reasonably feel free to leave.
The Fifth Amendment also applies to indirect evidence. For example, if Sam tells officers about incriminating text messages that prove Sam was part of a criminal conspiracy, these text messages are inadmissible unless officers read Sam his rights first.
Speaking of inadmissible evidence, statements about prior associations between two people may be inadmissible under New York’s rules of evidence. That’s especially true if the two people associated with each other before the crime. Such evidence is arguably irrelevant.
On a related note, many defendants roll over on their co-conspirators, hoping for more lenient treatment. This testimony may not be inadmissible, but it often is unreliable. Most people say almost anything for love, usually a reduced sentence or money.
Resolving Aiding and Abetting Charges
Public shock and grief over Lincoln’s assassination most likely prompted jurors to sentence Surratt and Mudd so harshly. Typically, this dynamic is absent, which is why many favorable resolutions are often available.
Deferred disposition is a good example. The defendant pleads guilty and serves a period of probation. If the defendant completes probation, the judge dismisses the case.
Many prosecutors are willing to offer deferred disposition in these situations because, as far as they are concerned, aiding and abetting is a lesser-included offense. Additionally, these prosecutions usually have proof problems, as outlined above, so the state is motivated to make a deal.
Deferred disposition has some significant pros and cons. No conviction record is a huge pro. However, if the defendant violates probation for any reason, the judge could sentence the defendant to the maximum under the law. Therefore, defendants shouldn’t accept these plea bargains without talking seriously with their attorneys, especially if the charge is a felony.
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester, NY, criminal attorney. Virtual, home and after-hours visits are available.
Sources:
[1] https://www.pbs.org/wgbh/americanexperience/features/assassination-co-conspirators/
[2] https://www.nysenate.gov/legislation/laws/PEN/20.00
[3] https://one.nhtsa.gov/people/injury/research/dwiconviction/dwiconvictions.htm
by The Law Office of Frank Ciardi | Jan 15, 2023 | Criminal Defense
Statistically, there’s no effective defense in any criminal law case. Prosecutors have about a 95 percent conviction rate.[1] However, this number is deceptive. Nearly all of these convictions are plea bargains. If a criminal case goes to trial, the conviction rate is much lower, perhaps as low as 50 percent. In both pleas and trials, at least one procedural, substantive, and or/affirmative defense is usually available.
During plea negotiations, a Rochester criminal defense attorney leverages these defenses and obtains more favorable plea bargain terms. These favorable terms usually include reduced charges and/or a reduced sentence. If prosecutors charge Tom with aggravated assault (a felony) and he pleads guilty to simple assault (a misdemeanor), that counts as a conviction. However, in practical terms, that plea bargain is a clear win for Tom. Attorneys also use these defenses during trials. If just one juror buys the defense, the defendant is not guilty as a matter of law.
Procedural
Over the last several years, the violent crime rate has increased in almost every state. Many lawmakers, especially those who love to pass the buck, have pressured law enforcement agencies to “do something” about this increase. To take this pressure off, many field officers take illegal shortcuts, and many of their supervisors look the other way.
Technicalities, or procedural defenses, are very effective. Once officers make a mistake, they cannot undo it. Furthermore, a technicality allows a Rochester criminal defense lawyer to obtain a favorable result, either at trial or during plea negotiations, without addressing the case’s merits.
The Fourth Amendment protects people from unreasonable searches and seizures. Unless officers had a warrant based on probable cause or a narrow search warrant exception applied, the search was unreasonable, and the evidence is inadmissible in court.
Fourth Amendment issues are often huge in possession cases, like drug and weapons cases. The prosecution crumbles if prosecutors cannot produce the illegal item at trial. Fourth Amendment issues also apply in other cases, most notably DUIs.
The Fifth Amendment gives people the right to remain silent. Most people have watched enough cops-and-robbers TV shows to know this. However, most people don’t know how early this right applies and how broad it is.
Legally, before officers detain and question suspects, they must inform them of their Fifth Amendment rights. “Detention” means the suspect doesn’t feel free to leave. In other words, detention begins long before officers handcuff defendants. Moreover, the Fifth Amendment not only covers the right to not say anything. It gives suspects the right not to do anything. They don’t have to pose for pictures or appear in lineups.
Substantive
In the aforementioned aggressive enforcement environment, many officers avoid procedural errors. However, they jump the gun and arrest suspects before they have enough evidence to convict them. As a result, a lack of evidence may be the most effective defense in criminal cases.
A lack of evidence is based on the presumption of innocence as well as the burden of proof in criminal cases, which is beyond any reasonable doubt.
At trial, most jurors assume that the defendants did something wrong. So, a Rochester criminal defense attorney must drive home the presumption of innocence. Usually, lawyers stress that when the trial begins, the defendant is falsely accused, as far as the law is concerned. Additionally, after the prosecutor makes an opening argument, no matter how convincing it is, the defendant is still falsely accused. The state hasn’t introduced any evidence at that point.
The presumption of innocence is so powerful that even if a Rochester criminal defense attorney says nothing during a trial, the jury could still acquit the defendant. Therefore, many criminal defense lawyers act somewhat uninterested during trial. This attitude often convinces jurors that the state doesn’t have much evidence.
Beyond a reasonable doubt is a very unclear concept in criminal law. New York courts use the unhelpful definition: “It is a doubt that a reasonable person, acting in a matter of this importance, would be likely to entertain because of the evidence that was presented or because of the lack of convincing evidence.”[2] That’s a lot of Legalese which, quite frankly, even we don’t understand.
Sometimes, an example works better. We mentioned DUIs above. Assume Becky is charged with causing a collision while DUI. The “driving” element in a DUI collision is often hard to prove in these cases. If Becky was in the car alone, a space alien could have driven the car and disappeared before the cops arrived, but that’s not a reasonable scenario.
If Becky was in the car with Eddie, jurors could reasonably believe that Eddie was the driver instead of Becky. Indeed, according to the presumption of innocence, that’s the conclusion they must reach unless prosecutors convince them otherwise.
A quick word about circumstantial evidence. This evidence could be enough to convict a defendant. If no one saw Sam break into Mike’s house, yet Sam threatened Mike on social media, and officers recovered Sam’s hair at the crime scene, Sam could be guilty of burglary. That’s assuming the evidence was admissible under the procedural defense rules, and the hair was scientifically reliable. Scientific reliability is a can of worms that we’ll address in another post.
Affirmative
Usually, an affirmative defense is the last line of defense. Defendants must admit that they committed the crime and argue their conduct was justified under the law. Self-defense in an assault or other similar cases and consent in a sexual battery or other similar cases are the two most common examples.
Proportionality is the key element in a self-defense argument. Usually, the response must be proportionate to the threat. However, that’s not always the case. If The Rock threatened me, I might reasonably believe I need a gun to stop him, even if The Rock was unarmed.
Usually, consent is a current, voluntary agreement to engage in a certain sexual act. This defense is quite complicated because many of these cases are “he said, she said.” The burden of proof comes into play as well. A “he said, she said” case might be enough to prove liability in civil court, where the burden of proof is lower. But it’s not enough to prove guilt in a criminal case, where the burden of proof is higher.
There’s a big difference between a criminal arrest and a criminal conviction. For a free consultation with an experienced Rochester, NY criminal attorney, contact the Law Office of Frank Ciardi. Virtual, home, and jail visits are available.
Sources:
[1] https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/PleaBargainingResearchSummary.pdf
[2] https://www.nycourts.gov/judges/cji/1-General/CJI2d.Presumption.Burden.Reasonable_Doubt.pdf
by The Law Office of Frank Ciardi | Dec 30, 2022 | Criminal Defense
The maximum range of punishment is the most obvious difference between a felony and a misdemeanor. People who commit felonies go to state prisons for more than a year. People who commit misdemeanors go to county jails for less than one year. Statistically, there are almost twice as many state prison inmates as county jail inmates.[1] Moreover, probation for a felony is much longer and has many more conditions than misdemeanor probation.
Misdemeanors and felonies are also different procedurally. Usually, prosecutors must obtain grand jury indictments in felonies. That’s largely a formality, as the grand jury indictment rate is over 99 percent. Pleas may be different as well. Some courts require allocutions, or detailed admissions of guilt, in felonies. The three major differences between misdemeanors and felonies are outlined below.
Felonies and misdemeanors also have some things in common. They’re both serious criminal cases. Furthermore, a defendant in either a felony or a misdemeanor needs a Rochester criminal defense lawyer. An attorney evaluates your case and determines your legal options. More importantly, a lawyer works hard to obtain a positive result. This result could be a not guilty verdict at trial, a plea to a lesser included offense, or a pretrial dismissal of charges.
Jail Release
When they set presumptive bail amounts, county sheriffs usually consider the defendant’s criminal record and the severity of the offense. Statistically, people who have been through the system before and who face serious charges are more likely to appear at trial. They aren’t as scared and are more anxious to resolve the matters. However, most sheriffs take the opposite approach. They raise bail in felony cases.
Bail for a low-grade felony usually exceeds $2,000. Bail for a serious felony may be ten times that amount or more. Quite simply, most people cannot afford to pay that much.
A bail reduction hearing is usually appropriate in these cases. At this hearing, a Rochester criminal defense lawyer uses the criminal record/severity of the offense arguments mentioned above to reduce bail. Furthermore, a judge considers additional factors at a bail reduction hearing, such as the defendant’s ability to flee the jurisdiction and the defendant’s contacts with the community.
The Constitution’s Eighth Amendment guarantees reasonable bail for a reason. Incarcerated defendants nearly always stay behind bars.
Perception Matters
To many jurors, people who face misdemeanor charges were in the wrong place at the wrong time, or they made an error in judgment. We’ve all done these things at one time or another. Frequently, people who live in glass houses don’t throw stones. In other words, jurors are more willing to go easy on misdemeanor defendants.
Felony defendants, especially violent felony defendants, are different. Jurors typically think these defendants are bad people who deserve punishment.
Perception may not be everything in a jury trial, but it is important. The nerd defense is a good example. When defendants wear eyeglasses, jurors are less likely to convict them, especially if the defendant is charged with a violent crime.[2]
Additionally, a positive perception goes hand-in-hand with a legal defense. If jurors are sympathetic toward the defendant and the defendant has a decent legal defense, jurors are more likely to acquit the defendant.
Collateral Consequences
Perhaps most importantly, the collateral consequences of a felony are much worse than those of a misdemeanor.
The aforementioned perception issues continue. Many employers, landlords, and other individuals also believe that felons are dangerous people who cannot be trusted. Most police officers feel the same way. For example, when detectives launch criminal investigations, they usually start with prior felons in the area. Detectives assume one of these felons either committed the crime or knows who did commit it. The law contains similar provisions. Felons lose many civil rights, such as voting or owning a handgun.
Additionally, very few misdemeanors have immigration consequences. Occasionally, a serious misdemeanor, like a DUI, may trigger deportation or other proceedings. Almost all felonies, on the other hand, have immigration consequences. That’s especially true in violent felony cases. Immigration matters are very difficult to resolve. It’s hard to obtain jail release in these cases. As a result, it’s hard to beat these cases in court, especially since the burden of proof is usually lower in immigration cases.
There’s a big difference between a criminal arrest and a criminal conviction. For a free consultation with an experienced Rochester, NY criminal attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
Sources:
[1] https://www.prisonpolicy.org/reports/pie2022.html
[2] https://brooklynworks.brooklaw.edu/cgi/viewcontent.cgi?article=1058&context=jlp
