Many people believed that karma finally caught up to notorious ex-athlete O.J. Simpson, when, in 2008, he was convicted of burglary in Nevada. [1] Simpson and his compadres allegedly burst into a Las Vegas hotel room to seize sports memorabilia which Simpson said belonged to him. If this event had happened in New York, Simpson would probably have been guilty of something, but as outlined below, burglary charges would probably have not held up in court.
Burglary is a serious charge in The Empire State with serious direct and collateral consequences. Lengthy prison terms are the norm, even if the defendant has no criminal record. Furthermore, when most landlords, employers, and others see “burglary,” they have visions of extremely violent Simpsonesque intrusions and home invasions.
A Rochester criminal attorney has the professional tools to reduce or eliminate these negative consequences. Even if the defendant is morally guilty, there is often a legal defense to these charges. An attorney can leverage that defense and obtain a positive result, like a complete dismissal of charges, a not-guilty verdict at trial, or a plea to a lesser included offense.
Elements of the Offense
According to Article 140 of the New York Penal Law, burglary is essentially unlawfully entering into or remaining on the property with the intent to commit a crime. [2]
There are three levels of burglary:
First Degree: This offense is often related to violating a restraining order. These orders usually prohibit people from being in certain places, such as a person’s office.
Second Degree: These charges are appropriate if the structure was a dwelling or used as a dwelling, even if no one was home then. Additionally, the defendant injured someone or displayed a firearm or another dangerous weapon immediately before, during, or immediately after the burglary.
Third Degree: This offense is exactly like second-degree burglary, except that two aggravating circumstances are present (firearm, dangerous weapon, or injury).
Aggressive New York prosecutors normally press the most serious charges that the facts could possibly support. Sometimes, this zeal works in favor of Rochester criminal attorneys, especially when it comes to defending these charges in court.
Possible Defenses and Rochester Criminal Attorneys
Frequently, burglary is a spur-of-the-moment crime that often involves alcohol. The defendant, who is drinking, makes a poor choice, often at the behest of “friends.” Normally, voluntary intoxication is not a defense to criminal activity. But burglary is a specific intent crime. The defendant must intend both the conduct (illegal entry) and the result (a separate crime). Scientifically and legally, intoxicated individuals do not have the capacity to formulate such a complex thought process.
If the separate crime was theft, property ownership could also be a defense. That’s why Simpson might not have been guilty of burglary in New York. The defendant must have legitimate, outright ownership instead of a claim to ownership or a superior right of possession.
Finally, proving a weapon enhancement is often a problem for prosecutors. If the defendant used a firearm, the gun must have been loaded and in firing condition. If the defendant used a baseball bat, golf club, or another object which could be a weapon, the defendant must brandish this object and probably threaten to use it. Merely displaying it is insufficient.
Count on a Thorough Attorney
Serious burglary charges do not always hold up in court. For a free consultation with an experienced Rochester criminal attorney, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
If you are confronted by the police, you should remember that you do not have to say anything to the officers. You should always be polite and respectful but you don’t have to wonder “Should I talk to police if I’m stopped for questioning?”
As outlined below, most people have a legal right to refuse to speak with officers. However, there is an old saying that if you want to get out of a hole, the first thing to do is stop digging. Refusing to speak to an officer makes a bad situation worse.
One thing is certain. If you are charged with a crime, regardless of the circumstances, you need legal representation. All criminal offenses in New York, both misdemeanors and felonies, have substantial direct and indirect consequences. Only an experienced attorney knows how to reduce or eliminate these consequences.
Your Rights
Most people know that the Fifth Amendment allows them to remain silent. Most people do not know that this right kicks in when custodial interrogation begins. 1
“Custody” means the suspect does not feel free to leave. Many motorists do not feel free to leave when they see flashing lights in the rearview mirror. They certainly do not feel free to leave when an officer arrives at the driver’s side window. “Interrogation” means asking questions that might or might not be related to the suspected offense.
The Fifth Amendment also contains a physical element. It includes the right to refuse to do things like perform field sobriety tests, pose for pictures, or appear in a lineup.
That being said, the Fifth Amendment is not absolute. Everyone must identify themselves to police officers, at least verbally, if officers have reasonable suspicion of criminal activity. Reasonable suspicion is basically an evidence-based hunch. Additionally, everyone must comply with basic commands like “step out of the car” or “stay in the car.” Failure to do so could result in an obstruction charge.
How Should I Talk to Police?
Especially in traffic stops, comply now and complain later is a good rule of thumb. News reports are full of police encounters that end very badly for suspects. Yes, these officers are accountable for their actions, but we should not escalate the situation with unnecessary pushback.
Comply by pulling over at the first opportunity, turning off the engine, turning on your dome light, and placing your hands on the steering wheel at 10 o’clock and 2 o’clock. Also comply by clearly answering direct questions.
The compliance rule is obviously not absolute. Never do anything that makes you uncomfortable. And never answer questions that are obviously investigatory (e.g. “have you been drinking?” or “do you know this individual?”).
Complain through your attorney. Most people have no problem remembering details of traumatic events like detentions and arrests. Convey all these details to your attorney, even if they seem insignificant.
DUI roadside checkpoints are a good example. Always pull over if officers direct you to do so. Also, remember items like the approximate number of traffic cones and the precise wording on a sign. Minor details like these could legally invalidate the checkpoint. DUI roadblock signs must convey certain information and the checkpoint must meet certain special specifications.
Reach Out to a Dedicated Attorney
You should talk to police when you’re stopped, but you should also know when to stop talking. For a free consultation with an experienced criminal defense lawyer in Rochester, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
There is no doubt that stalking, usually one ex-spouse or paramour preference, is extremely unsettling. 1 However, as outlined below, it is only illegal in some situations. Furthermore, some effective defenses are available. The decision on whether to get a criminal defense attorney for stalking is an important one to consider.
Most of these defenses are rooted in the nature of a criminal stalking charge. In family court, alleged victims must only establish the elements of stalking by a preponderance of the evidence, or more likely than not. But in criminal court, prosecutors must establish guilt beyond a reasonable doubt. That’s the highest burden of proof in the law.
Stalking has serious direct and indirect consequences. Criminal convictions never fall off your record. If you go to civil or criminal court fifteen or twenty years after the case ends, the conviction could be relevant. Additionally, if you are ever in another domestic dispute, responding officers will automatically assume you were the offender.
All these things make it very important to work with an effective defense attorney for stalking. A lawyer knows how to minimize or eliminate these consequences. Furthermore, an attorney guides you through the confusing legal process, so you do not feel alone.
Elements of the Offense
Second-degree harassment, which is the primary anti-stalking law in New York, is extremely broad. 2 There are basically two kinds of stalking/harassment, as follows.
Following a Person
There is no such thing as coincidental stalking. If two people live in the same neighborhood, or even in the same ZIP code, they will occasionally, or even regularly, be in the same place at the same time. Generally, unless prosecutors convince jurors the defendant went out of his/her way to be in a certain place, charges usually do not hold up in court.
Additionally, the following must be in a public place. If the alleged victim works in the same large office as the defendant, the defendant does not “follow” the victim every time s/he visits the water cooler.
Repetitive Acts
This form of stalking/harassment is much more complex. This offense has a number of moving parts, and the state has the burden of proof on each one.
First, stalking is not a one-time event. The law requires “a course of conduct” or the commission of multiple acts. The law is a bit unclear as to whether the acts must be different specific acts. If the defendant follows the alleged victim home three times in one month, that could be a single act.
Second, there must be actual harm. The generally unsettling nature of stalking is insufficient. Instead, the defendant must “alarm or seriously annoy such other person.”
Third, these repeated acts must serve no legitimate purpose. Giving unsolicited gifts is a good example. Some people consider such behavior harassing. But the defendant might see things differently.
How a Stalking Defense Attorney Leverages Defenses
Lack of evidence is usually the best defense in these cases. A stalking prosecution usually hinges on the alleged victim’s testimony. These individuals sometimes have credibility issues. For example, no one is sure how many alleged victims fabricate or exaggerate stories to gain an advantage in a current or future civil case. But these situations do happen.
Additionally, stalking cases usually involve law enforcement investigations. Typically, the alleged victim files a complaint, and officers follow up on that complaint. Procedural defects, like the improper questioning of a suspect or the lack of a search warrant, are rather common in these situations.
A defense attorney for stalking uses defenses like these to either have the charges dismissed, obtain a not-guilty verdict, or, most commonly, work out a favorable plea bargain agreement. These agreements often include pretrial diversion or other alternatives that result in no criminal conviction.
In the court of public opinion, the marijuana climate is changing. A majority of states have now either entirely legalized pot, or they have partially decriminalized recreational use and have liberal medical marijuana laws. But this culture change has not affected law enforcement. In 2018, almost half of all drug arrests involved marijuana. A staggering 92 percent of these busts were for simple possession. [1]
Nevertheless, the changing climate has affected these cases. Many jurors now see marijuana use as a health and safety issue as opposed to a criminal law issue. After all, opioid painkiller overdoses have killed tens of thousands of Americans in this century. Marijuana overdoses have made lots of people sick, but they have never killed anyone. Additionally, some of the legal changes have created proof problems that are difficult or impossible for prosecutors to overcome.
The changing climate has made it much easier for a drug possession defense lawyer to resolve these charges successfully. That resolution could be a complete dismissal of charges, normally due to a lack of evidence or legal insufficiency, or a favorable out-of-court settlement which involves pretrial diversion or a similar program.
Marijuana Drug Possession Charges in New York
Frequently, we equate possession with ownership (e.g. the “possessions” in my house). But the criminal court is different. Possession has a much more specific meaning. The state must prove the following three elements:
Produce the Substance in Court: Guns, drugs, and other physical evidence are only admissible in court if officers had a valid warrant or a search warrant exception applied. Some common exceptions, which usually apply in traffic stops and other incidental contact arrests, include plain view and consent to search.
Prove the Substance was Illegal: In many drug cases, this prong is essentially a formality. But in marijuana cases, this element is often a game-changer. Hemp and marijuana are almost identical in almost every way. They look alike, smell alike, and so on. But since hemp is legal, the state must prove, beyond a reasonable doubt, that the substance was marijuana.
Establish Proximity: We mentioned traffic stops above. This final element is often controversial in traffic stops as well. If the police pull over a car and one person has some grass, officers often charge everyone in the car with possession. Frequently, a person in the back seat is not close enough to marijuana in the front seat to legally possess it.
Marijuana possession drug charges in NY are usually misdemeanors. The law recently changed in this area. If the defendant has no criminal record and is charged with a nonviolent misdemeanor, prosecutors almost always offer pretrial diversion, which is a bit like informal probation. If the defendant stays out of trouble for a few months and completes other program requirements, prosecutors dismiss the case.
Distribution/Trafficking
Roughly these same evidence dynamics apply in trafficking and distribution cases. But the problems are amplified.
Producing the substance in court is a good example. Frequently, marijuana trafficking and distribution arrests involve large, multi-agency investigations. To obtain warrants, investigators often rely, at least in part, on confidential informers. The information these people provide is presumptively unreliable. Most informers receive leniency or cash. And, many people will say almost anything for love or money.
Additionally, trafficking and distribution cases are often almost entirely circumstantial. Prosecutors rely on additional evidence like guns or cash. At a post-arrest press conference, all the seized items are laid out in a neat row for everyone to see. But frequently, the drugs were in one part of the house and the guns or money were in another part of the house. It is difficult to convince skeptical jurors the two were connected, at least beyond a reasonable doubt.
These evidence problems make it easier for a drug possession defense lawyer to obtain pretrial diversion or reduce the charges to simple possession.
Contact a Dedicated Drug Possession Defense Lawyer
Marijuana charges do not always hold up in court. For a free consultation with an experienced drug possession defense lawyer, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
Alleged victims and alleged abusers often use judges as pawns in their disputes with their spouses. [1] Being falsely accused of assault is, unfortunately, more common than you may realize. For example, abusers often insist on child visitation rights to control the victim’s life. And, alleged victims sometimes fabricate criminal charges to obtain leverage in a current or future custody case. No one is sure how often these things occur. But they definitely happen.
For the purposes of this blog, we will focus on the second item. A Rochester assault defense attorney does more than stand up for defendants who were falsely accused of assault. An attorney also gives defendants solid advice, so they can make good choices based on the law, not their emotions.
Take the Charges Seriously
Do not assume the judge will automatically see things your way. Some defendants mistakenly believe that if the parties go through a divorce or other family law case, the judge will summarily throw the case out of court.
That’s not the way it works. Domestic battery charges are rather easy to prove in New York. Any harmful or offensive touch could be a domestic battery even if it did not cause an injury. A parallel proceeding in civil court has little or nothing to do with the way the defendant acted on a particular occasion.
Furthermore, do not relax if the judge is a man. Gender has little to do with the way most judges view most cases, including domestic battery. Furthermore, unless there is a bench trial, the judge has the final word but has little to do with the process.
Obey Court Orders
In most jurisdictions, when officers respond to domestic battery calls, they are legally required to tell alleged victims about their right to request a restraining order. So, these orders are usually part of the process.
These orders commonly include no-contact orders and other such provisions. Even if the orders seem unreasonable, obey them. Ignoring them only makes it easier for the state to obtain a conviction.
Usually, there is a hearing about two weeks after the judge issues an ex parte protective order. At that hearing, a Rochester assault defense attorney can effectively present your side of the story. As a result of that presentation, the judge usually either relaxes the terms of the order or throws it out of court altogether.
Partner with a Rochester Assault Defense Attorney
The motives leading up to the charges are generally irrelevant in criminal cases. For example, if police target an individual for drug-running, follow him everywhere, and eventually catch him speeding 1mph over the limit, those charges will hold up in court. [2] So, if an alleged victim was looking for an excise to take you to court, domestic battery is still domestic battery.
Nevertheless, some defenses are usually available. For example, if two people were arguing, self-defense might be an option, if the defendant used a reasonably necessary amount of force. Also, as mentioned, physical injury is not an element of domestic battery. But if there was no physical injury or only a de minimis injury, it’s harder for the state to prove intent.
Rely on an Experienced Assault Defense Attorney in Rochester
For a free consultation with an experienced Rochester assault defense attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
In 1993, the domestic assault rate was 5.3 victims per 1,000 people. By 2002, that rate had fallen to 2.1 victims per 1,000 people. And the rate is still falling. [1] Nevertheless, more than one in ten assault cases involve domestic violence. Moreover, domestic battery convictions have severe direct and collateral consequences. It’s imperative when you face domestic violence charges that you look for a reputable criminal defense attorney.
There is a big difference between an arrest and a conviction, especially in this context. Most Rochester-area law enforcement agencies have mandatory arrest policies. If officers respond to a disturbance call, someone goes to jail. In almost 80 percent of these cases, that “someone” is a man. But there is no mandatory conviction policy. Instead, Monroe County prosecutors must prove guilt beyond a reasonable doubt.
So, although domestic battery charges are serious, some effective defenses are available. As a result, a domestic violence criminal defense lawyer can often successfully resolve these charges. That resolution could be a complete dismissal of charges, a plea to a lesser included offense, like reckless conduct, or a not-guilty verdict at trial.
Lack of Evidence
Contrary to the popular myth, physical injury is not an element of ordinary battery or domestic battery. Instead, prosecutors must only show an intentional, as in not accidental, touch. That could be grabbing someone’s arm or poking someone’s shoulder.
That being said, it is much easier to prove an intentional touch if the alleged victim at least required first aid. If that’s not the case, it is easier for a domestic violence criminal defense lawyer to argue that the touch was accidental successfully.
Additionally, police officers rarely witness domestic violence first hand. So, prosecutors typically rely on civilian witnesses, mostly alleged victims, to make their cases in court. Unlike police officers, alleged victims are not professional witnesses. Therefore, a domestic violence criminal defense lawyer can often shake the alleged victim’s testimony enough to create reasonable doubt.
On a related note, alleged victims cannot “drop” criminal cases. Only prosecutors have that power. If alleged victims refuse to cooperate, prosecutors can subpoena them and force them to testify.
Domestic Violence Criminal Defense Lawyers and Self-Defense
Because of the high burden of proof, a lack of evidence is often the best defense in a criminal case. Frequently, affirmative defenses, like self-defense, are available as well.
Essentially, the defendant must prove that the use of force was reasonably necessary. Additionally, the use of force must be proportional. Let’s look at these elements individually.
A reasonable belief means that most jurors would have done the same thing if they were in the defendant’s shoes. If Bill lunges at Ted, it’s reasonable for Ted to raise his arms and defend himself. Even if Bill is seriously injured, that does not change the fact that Ted’s reaction was reasonable.
Proportionality sometimes comes into play as well. If the alleged victim was yelling at the defendant, the use of physical force is not proportionate to the threat, no matter what the alleged victim was saying.
