The range of punishment is the most significant difference between a misdemeanor and a felony. Misdemeanors are punishable by a maximum of one year behind bars. Felonies are punishable by one year of incarceration or longer. The distinction between misdemeanors and felonies became more critical in the late 1880s when plea bargaining became more common in American courts. Regardless of its classification, the essential elements of a crime are the same.
The approach of a Rochester criminal defense lawyer is usually the same for either a misdemeanor or a felony. Although the range of punishment is different, both types of offenses are pretty severe. The burden of proof is the same in both kinds of crimes as well. Prosecutors must prove guilt beyond any reasonable doubt. So, lack of evidence is usually the best defense against either a misdemeanor or a felony.
Basic Components of a Criminal Offense
As previously mentioned, the burden of proof is most important to the actus rea, or criminal act. Technically, both direct and circumstantial evidence is admissible. But circumstantial cases are hard to prove in criminal court. Say a witness sees Tim running away from Sally’s dead body, that could mean he killed Sally, or it could mean he was scared. If a witness saw Tim kill Sally, the state’s case is much stronger. If investigators also recovered the murder weapon, Tim is in real trouble.
There’s a difference between an act and a condition. In ye olden days, laws prohibited things like homosexuality and drug addiction. A similar issue still comes up today in some assault cases and other violent crimes. It’s not illegal to have a bad temper or to be violently angry at someone. It’s only illegal to hit someone intentionally.
This point leads us to the mens rea, or criminal state of mind, the other fundamental element of most criminal offenses. Most New York criminal laws apply to “intentional” conduct. The I-word usually means non-accidental. In some cases, “knowingly” doing something illegal is also a crime. For example, it’s unlawful to knowingly remove some items from state or national parks, even if the defendant didn’t mean to do anything wrong.
Jurors may infer intent from conduct. If Tim hit Sally with a baseball bat, he probably intended to hurt her, even if he says otherwise on the stand. However, if Tim pushed Sally and she fell down the stairs, the intent is harder to prove, at least beyond a reasonable doubt.
Regulatory offenses, such as DWI and traffic tickets, have no mens rea requirement. Prosecutors need not prove that defendants intentionally or knowingly ran stop signs or drove drunk.
Types of Criminal Offenses and Rochester Criminal Defense Lawyers
Attacking the mens rea evidence in a criminal case is often an effective defense. Let’s see how this defense plays out in the three major types of criminal offenses.
Personal
This category includes offenses like assault, murder, and sexual assault. In addition to the direct evidence mentioned above, these cases often rely on a confession.
Strict rules, such as the Miranda rule, apply in this area. Officers must advise defendants of their Miranda rights, such as the right to remain silent, very early in the process. Any evidence they subsequently obtain, including a confession, could be inadmissible in court if they fail to do so. The fewer arrows of evidence the state has in its quiver, the harder it is to hit the target.
Possession
Drug possession is by far the leading offense in this category. Others include possession of an illegal firearm and possession of illegal pornography. In these cases, prosecutors must establish the following elements:
Proximity
Knowledge
Control
Assume Mary is at home when her new roommate is selling drugs. Prosecutors can probably establish proximity. Depending on the facts, they might have difficulty establishing control and knowledge, especially since the burden of proof is so high.
Property
These offenses involve reducing the value of property, usually by taking it without permission or by defacing it.
Much like personal offenses, property crimes usually require a non-officer witness. This requirement is hard to meet in many cases. Some civilian witnesses are uncooperative. The state could force these people to testify against their will, but prosecutors rarely use this power. Other times, by the time the case goes to trial, the primary complaining witness has moved and is unavailable.
Consult an Experienced Attorney About a Misdemeanor or Felony
Other than the different ranges of punishment, felonies and misdemeanors are the same. For a free consultation with an experienced Rochester criminal defense lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
Does a repeat offense impact the decision of jurors on a criminal case? Most people assume that where there is smoke, there’s fire. So, if jurors learn that the defendant has a criminal record, that knowledge is usually the kiss of death.
Rule 4.11 Limits the Effect of a Repeat Offense
Fortunately, evidence of a repeat offense is generally inadmissible to the current case. The New York Rules of Evidence state in Rule 4.11 that prior bad acts are inadmissible in a criminal or civil proceeding “to prove that the person acted in conformity therewith on a particular occasion or had a propensity to engage in a wrongful act or acts.”1However, there are a couple of trial admissibility loopholes, which are examined below.
There are also some practical ways that a criminal record from a repeat offense affects a criminal case. People who have been through the system before have some idea of what to expect. For first-timers, the criminal justice process is intimidating, to say the least, and usually downright scary.
These two issues underscore the need for a good Rochester criminal defense lawyer. A lawyer is an attorney and counselor at law, and legal advocacy is a big part of the job. Even if the state’s case seems airtight, some defenses are usually available. Furthermore, and perhaps more importantly, a Rochester criminal defense lawyer guides defendants through this time so that they can make the best possible decisions.
Trial Loopholes That Could Reveal a Repeat Offense
Rule 4.11 exists to defeat the smoke/fire presumption mentioned above. On a similar note, jurors should never know if the defendant is in jail. Most people assume that incarcerated people did something wrong. So, jurors should never see the defendant in jail clothes or handcuffs. However, Rule 4.11 also includes the dreaded and feared word “except.”
There are four exceptions to the inadmissibility rule:
Essential Element: If the defendant’s character is a crucial element of the offense, prior bad acts are admissible on this point. Offenses that involve fraud or dishonesty, including most property crimes, fall into this category. Sometimes, judges only allow prosecutors to use prior crimes which involved moral turpitude.2
Rebuttal Evidence: If a Rochester criminal defense lawyer introduces evidence about the defendant’s good character, the prosecutor can rebut this evidence with the defendant’s criminal record, which indicates their bad character. To avoid opening this door, it’s usually essential for an attorney to stick to the facts. However, there may be a fine line because jury sympathy is often critical.
Self-Defense: Sometimes, prosecutors can use a criminal record to disprove this affirmative defense and show that the defendant was, in fact, the aggressor. This exception is somewhat technical.
Impeachment: This exception is the most used one. When prosecutors use criminal records for impeachment purposes, they aren’t technically using these records to prove character conformity. Instead, they use this evidence to show the defendant is untruthful. Many judges tell jurors they may only consider the criminal record for limited purposes. But no one is sure how much effect these limiting instructions really have.
Because these loopholes are rather broad, especially the impeachment loophole, a trial might not be the best idea if the defendant has a criminal record. So, a negotiated settlement could be a better alternative.
Plea Negotiations and Rochester Criminal Defense Lawyers
The rules of evidence only apply in trials and other such proceedings. They don’t apply during plea negotiations. In fact, prosecutors have almost unlimited discretion to consider pretty much anything they consider relevant. In most jurisdictions, judges don’t supervise plea negotiations, or they do not pay much attention to them.
Furthermore, criminal convictions never fall off criminal records. Usually, after about ten years, they are mainly inadmissible in court. But prosecutors routinely tailor their offers according to the defendant’s criminal history, no matter how old that history is.
The before-and-after approach often reduces the effect of a criminal record during plea negotiations. For example, some people commit offenses because they were in harmful environments or had substance abuse problems. So, if the defendant has made some significant life changes, prosecutors often see these changes as mitigating circumstances.
Connect with a Hard-Working Attorney
One way or another, old criminal records usually affect new criminal cases. For a free consultation with an experienced Monroe County criminal defense lawyer, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
We have received several calls about drivers’ license suspension, mainly because the law changed in June 2021.1New York no longer suspends drivers’ licenses for failure to appear in traffic court or failure to pay fines. Instead, courts will send notices to these drivers. About two dozen states have passed similar reforms. The Empire State’s changes are among the broadest ones in the country.
Traffic court FTA (Failure to Appear) and FTC (Failure to Comply) is one of the leading causes of drivers’ license suspension in New York. But it’s certainly not the only cause. Authorities can unilaterally suspend or even revoke your drivers’ license for reasons that have little or nothing to do with driver safety.
Like many other problems in life, a drivers’ license suspension is usually only serious if you ignore the problem. A Monroe County criminal defense attorney can often get the suspension or revocation overturned. If nothing else, a lawyer can usually reduce the suspension period or obtain a hardship license.
Types of Drivers’ License Suspension
When the state suspends your license, bureaucrats send a notice to the address listed on the drivers’ license. Frequently, this address is old and invalid. Therefore, many New Yorkers are driving with suspended licenses and may not know it.
We use the S-word broadly in this context. There are three types of drivers’ license suspension in New York:
Definite Suspensions
If you do not have insurance, refuse or fail a DWI chemical test, are convicted of a drug or alcohol-related offense, get too many points on your license, or violate certain drivers’ license restrictions, the state suspends your license for a certain period, usually six months or a year. Your license doesn’t automatically become valid when the suspension period ends. Instead, you must file paperwork, pay a fee, and possibly jump through some other hoops.
Indefinite Suspension
Common indefinite suspension reasons include failure to pay a fine, file an accident report, pay state taxes, or pay child support. The state may also indefinitely suspend your license if you have epilepsy or certain other medical conditions. Your license is suspended until the state lifts the suspension. That period could be an hour or a decade.
Definite Revocation
If you were an at-fault driver in a fatal accident, you are convicted of a severe drug or alcohol-related offense, and in a few other cases, the state revokes your license. You must petition for reinstatement and retake the test. The DMV routinely denies these petitions, especially if the driver does not have a Monroe County criminal defense lawyer.
Out-of-court settlements are typical in many cases. For example, if Mike’s license is suspended due to child support nonpayment, the state might reinstate it if he pays part of the amount due and agrees to a payment plan for the balance. There could be some legal defenses as well. For example, before the state suspends Marilyn’s license for failure to provide a chemical sample in a DWI, the state must prove officers had probable cause to make this demand.
After License Suspension: Hardship Driver’s License
Usually, conditional and restricted drivers’ licenses are available in New York. There are some subtle differences between these two forms of relief.
Judges usually issue conditional licenses in alcohol-related suspension cases. Defendants may drive as long as they meet certain conditions, such as installing an Ignition Interlock Device. An IID is essentially a portable Breathalyzer that’s connected to the ignition. Restricted use licenses are often available in all other cases. These restrictions usually limit defendants to driving for work, school, and certain other limited purposes, such as going to court or to the doctor’s office.
The defendant bears all the costs involved. That includes IID installation, monitoring, and maintenance fees. The state normally assesses a fee as well.
Count on a Dedicated Attorney
Options are available to people with suspended or revoked licenses. For a free consultation with an experienced Monroe County criminal defense lawyer, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
We often get asked, “can a defense lawyer get a bench warrant lifted?” Here’s our in-depth exploration of this question, and our answer, depending on the type of warrant.
Need to Get a Bench Warrant Lifted?
You may have heard the saying that time heals all wounds. In criminal law, this is sometimes true.
The statute of limitations for a misdemeanor is usually one year, and the statute of limitations for a felony is usually five years. But there is no statute of limitations regarding criminal records, at least in most cases. Typically, a conviction stays on your permanent record forever.
An Attorney Can Get A Bench Warrant Lifted
Warrants are a mixed bag in this area. Search warrants are usually only valid for a few hours or days at most. But there is no statute of limitations on arrest and bench warrants.1 In most cases that Rochester defense lawyers handle, an officer pulls over a defendant for rolling through a stop sign or another minor offense. The warrant pops up on the computer, even if the warrant is several decades old. At that point, department policy usually mandates an arrest.
From a certain point of view, every warrant is a bench warrant. Only judges may issue warrants. But search and arrest warrants are based on probable cause affidavits. A judge issues a bench warrant upon their initiative, usually for failure to follow a court order.
A Rochester defense lawyer can get a bench warrant lifted and put the case back on the docket in many situations. Generally, there’s no court appearance required. Once the case is on the docket, several defenses are usually available. For example, most traffic court FTA bench warrants are so old that the arresting officers are long gone, as are any material witnesses.
Traffic Ticket Warrants
FTA (Failure to Appear) and FTC (Failure to Comply) are the two most common traffic ticket bench warrants in New York. Failure to appear is usually, wait for it, a failure to appear in court. Frequently, defendants forget about the court date. Failure to comply is usually a missed payment or another deadline. Sometimes, courts send reminder letters in these cases. But generally, the judge issues a warrant.
Sometimes, bail bonds companies can lift these warrants. Then, the defendant must appear in court to defend the traffic ticket or show cause (explain) why s/he missed the deadline. If a Rochester defense lawyer lifts the warrant, the judge usually does not require defendants to appear, at least initially. Lawyers and prosecutors are generally able to work out deals in these situations.
Criminal Warrants
Most felony and misdemeanor bench warrants have special provisions, so bonding companies cannot work with them, at least in most cases. Usually, criminal bench warrants are for contempt of court. Examples include failing to:
Obey court order
Show up for jury duty (yes, a judge can issue a warrant for such behavior)
Pay a fine
Allow court-ordered visitation
Pay spousal or child support
Obey a subpoena
Fulfill all terms and conditions of probation
Let’s expand on that final bullet point. By far, the two most common probation violations are committing another infraction against the state of New York and failing to report. Failure to pay fees or restitution is a somewhat distant third, not because these violations are uncommon, but because there are some Constitutional issues.
At a show-cause hearing in traffic court, judges are usually willing to accept semi-legitimate excuses, such as the inability to afford defensive driving. But at a misdemeanor or felony show cause hearing, there’s usually no such thing as a valid excuse.
In ye olden days, Rochester defense lawyers often got these cases thrown out on a technicality. Section 30.30 (4)(c) once required the state to prove due diligence in serving the warrant. In other words, the state had to try hard to serve the warrant. Letting it sit in the computer wasn’t good enough. But that law changed in 1996.2
So, the best option in a criminal court bench warrant case is usually to surrender at a county jail and work out a plea agreement with the state. This agreement usually includes an extension of time to comply or similar light punishment.
Consult An Experienced Attorney
If the judge issues a bench warrant, you must do something about it straight away. For a free consultation with an experienced Rochester defense lawyer about how to get a bench warrant lifted, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
If you are considering whether to plead guilty in NY state, the best place to start is by consulting an experienced defense attorney in western NY to learn all of your legal options. These alternatives include pretrial diversion, procedural and substantive defenses, or probation, which may reduce your sentencing time, leave your criminal record clean or get the case dismissed entirely.
Read Before You Plead Guilty in NY
It’s commonly said that a defense attorney is simply a person who helps you get what is coming to you. In other words, since plea bargains resolve almost all criminal cases and the terms are pretty much set, at least in most cases, there is little need for a top attorney. This mindset is not entirely off base.
Yes, plea bargains resolve most criminal matters, especially federal cases, and often the terms of these agreements – including the length of probation – are set in stone. Under the Federal Sentencing Act, prosecutors usually offer the same deals on the same cases to all defendants. The only variable, which is fixed, is the defendant’s criminal record.
So, if you are willing to take the first offer, no matter how good or bad it is, you probably do not need legal representation. But just like any other negotiation, there is usually a better plea deal available, especially if the defendant has a strong advocate and a possible defense. Only a Rochester defense attorney can secure better terms.
Better Alternatives to Pleading Guilty in NY From a Trusted Defense Attorney in Western NY
Learn about your other legal options and the advantages they offer compared to pleading guilty in New York, covered in the list below:
Pretrial Diversion
Before we talk about possible criminal defenses, let’s talk about pretrial diversion. Prosecutors usually offer such alternatives if the defendant has no criminal history and gets charged with a nonviolent crime. This option is generally available in other cases if a criminal defense attorney in western NY asks for it. Prosecutors do not hand out pretrial diversion like candy on Halloween.
Diversion programs vary in different courts. Usually, the defendant must pay restitution, if applicable, and complete some other requirements, like community service hours, a self-improvement class, or a substance abuse evaluation. If the defendant jumps through all these hoops, prosecutors dismiss the case.
Pretrial diversion has several advantages. These arrangements usually involve limited or no court supervision. The case ends earlier, so defendants can get on with their lives. Perhaps most importantly, if prosecutors dismiss the case, the defendant has no criminal conviction record.
Possible Defenses
A criminal defense attorney in Western NY doesn’t only use procedural and substantive defenses at trial. Attorneys use these defenses as negotiating leverage. As the chances of a not-guilty verdict rise, the prosecutor’s offer gets better.
Procedural defenses usually involve a violation of the Bill of Rights. Searches and seizures are an excellent illustration. Police officers typically need a warrant or probable cause to do these things. Without one or the other, the seized evidence could be inadmissible in court. If the defense is strong enough, prosecutors will make a deal rather than risk it all on a hearing.
A substantive defense usually means a lack of evidence. Frequently, defendants are morally guilty, but prosecutors cannot prove it in court. Assume Sam sneaks up behind Jim in a parking lot and clubs him on the head with a baseball bat. If there were no other witnesses, the state would have a hard time proving Sam was guilty, at least beyond a reasonable doubt.
Sentencing Options
We mentioned court supervision (probation) earlier. Primarily for financial reasons, pretty much everyone receives probation. Incarceration costs money, but probationers pay supervision and other fees.
Especially if a defense is present, either regular probation or deferred adjudication might be available. Regular probation is, well, regular. If defendants obey all conditions of probation, they stay out of jail. For practical purposes, deferred adjudication is the same. But if the defendant completes deferred adjudication probation, the judge dismisses the case, and the defendant has no criminal record.
The defendant need not complete probation perfectly. A Rochester defense lawyer can usually still get the case dismissed if a few issues along the way. This form of probation is prevalent in New York. The Empire State has minimal expungement laws. So, once a conviction is on your record, it usually stays there forever.
Work with a Dedicated Defense Attorney in Western NY
Plea bargains resolve most criminal matters, and there are usually multiple options available. Before you decide to plead guilty in NY, get a free consultation with an experienced Rochester defense lawyer by contacting the Law Office of Frank Ciardi. The sooner you reach out to us, the sooner we start fighting for you.
The value of court-ordered rehab is being questioned these days due to a growing trend to see drug and other offenses as health and safety problems rather than criminal law issues.[1] For many years, the law took a lock-them-up-and-throw-away-the-key approach to drug offenders.
Those times are changing. Former President Barack Obama pardoned almost 2,000 people during his eight years in office. Many of these individuals received harsh drug sentences for relatively minor offenses. In contrast, Obama’s predecessor, also a two-term President, granted less than two hundred pardons.[2]
Despite these ongoing social shifts, court-ordered rehab is still an integral part of pretty much every drug-related sentence in Monroe County. The same thing applies to alcohol evaluations in a DWI.
Clinical settings, like substance abuse rehab, often seem out of place in judicial settings. But fundamentally, these programs have different objectives. Therefore, a Rochester defense lawyer must anticipate some issues and be ready to deal with them. Otherwise, the defendant’s probation could be at risk.
Some Nuts and Bolts of Court-Ordered Rehab
Statistically, drug and alcohol rehabilitation programs are usually effective, at least in the short term.[3] This effectiveness usually fades after people go back to their old habits and old friends. However, in many cases, recovery is permanent, or at least long-lasting.
Typically, judges let defendants choose their own drug rehab facilities. Usually, the judge only sets general parameters, like program length. Many people select a facility that accepts their health insurance plans.
DWI alcohol evaluations work a little differently. Generally, the judge orders the defendant to complete a specific program. The state or county usually subsidizes the costs of such programs. These rules vary in different counties and even among different courts in the same county.
Possible Issues in Court-Ordered Rehab Programs
No matter what program the defendant must complete, here are three common pitfalls to avoid:
1. Don’t Miss Any Appointments
Most people see the doctor on their own time. Usually, the doctor is in a familiar location. Furthermore, they schedule appointments at their convenience and usually cancel at the last minute with little or no penalty.
Court-ordered rehab programs or substance abuse evaluations are different. In most cases, the office tells defendants when and where to show up. If the assigned appointment is on the other side of town in the middle of the day, so be it.
It’s imperative to keep all appointments, even if they only involve follow-up or completing paperwork. Failure to appear usually causes clinics to add the dreaded “uncooperative” label to a file. At that point, many court-ordered rehab facilities dismiss program participants. Additionally, most judges are not very happy that defendants seemingly blew their second chances in these situations.
2. Don’t Deny the Problem
Denial, which is not just a river in Egypt, is the second major issue, especially for first-time offenders. Many facilities follow the 12-step recovery model, at least to an extent. The first step in this process is admitting that you have a problem. Unfortunately, if participants deny they have a problem, some facilities dismiss these individuals.
For example, let’s assume Brenda bought a few crack rocks for the first time from Kick. Unbeknownst to Brenda, Kick was an undercover officer. Kick immediately arrests Brenda for possession. The judge orders Brenda to attend court-ordered rehab, and the counselor asks her to admit she has a drug problem. When Brenda says she doesn’t have a crack addiction, the counselor might conclude that she’s in denial and therefore cannot be helped.
3. Choose the Right Rehab Facility
These issues are relatively easy to avoid. As mentioned, most defendants may choose their rehab facilities. A Rochester defense lawyer can help a first-time offender select a facility that specializes in such cases.
If worst comes to worst and the facility dismisses the defendant, a lawyer can quickly find another. Judges usually don’t particularly care about the location or effectiveness of court-ordered rehab, as long as the defendant is in a facility somewhere.
Work with a Dedicated Attorney
Court-ordered rehab could be life-changing, or it could be very aggravating. For a free consultation with an experienced Rochester defense lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
