In New York, disorderly conduct or public intoxication infractions are not technically criminal cases. Instead, they are violations.[1] Many people mistakenly believe that a violation is the equivalent of a traffic ticket. But you cannot go to jail for a traffic ticket, and you can go to jail for a violation. A fundamental rule of criminal defense is that if jail time is a possibility, you need a defense lawyer Rochester.
Truthfully, very few people receive jail sentences in these cases. However, depending on the facts, probation is a real possibility. Court supervision usually includes restrictive conditions, such as paying a fine and attending self-improvement classes. If you plead guilty or no contest, these conditions are almost inevitable. If you partner with a defense lawyer Rochester, there is a good chance you will face no consequences at all.
Elements of the Offenses
Both these violations are in Article 240 of the New York Penal Law.[2] Disorderly conduct (DOC) is usually a fallback offense. If officers cannot think of any other charges, they usually arrest people for such misbehaviors as:
Engaging in any “violent, tumultuous or threatening behavior,”
Making an obscene gesture or using obscene language in a public place,
Refusing to obey a lawful order to disperse, and
Creating “a hazardous or physically offensive condition by any act which serves no legitimate purpose.”
Defense lawyers in Rochester typically deal with that fourth bullet point. This point is quite vague and could include almost any activity which anyone finds offensive.
The act alone is not enough. Additionally, the defendant must intentionally or recklessly cause alarm, annoyance, or public inconvenience.
Public intoxication (PI) charges could hold up in court if the defendant is a danger to himself/herself or others while under the influence of alcohol or a “narcotic.” Legal drugs, such as Sominex and prescription pain pills, usually do not count.
Once again, this charge is quite broad. If Jim opens a door or walks across the street, he could be a danger to himself or others. This offense is a regulatory offense with no mental element.
How Does Defense Lawyer Rochester Successfully Resolve These Cases?
A plea to time served might be the best way to resolve these charges. Legally, if the defendant served one minute in jail, that’s the equivalent of a day. Additionally, in most jurisdictions, each day served is equivalent to three days’ credit. Therefore, even if the defendant immediately bonded out, the defendant usually has three days’ credit.
A brief jail sentence means no fine, no probation, and no other strings attached. The defendant walks out of the courtroom.
Some judges are sympathetic enough to offer time served pleas to defendants. Others are not so inclined. A defense lawyer Rochester, like Frank Ciardi, can help ensure that this offer is on the table. Prosecutors are usually willing to offer this deal. Typically, the state must call a non-officer witness who saw the allegedly dangerous or offensive behavior. In disorderly conduct cases, this witness must have been offended. Theoretical offense is insufficient.
A brief word about the fallout of a violation. It’s possible to seal these records, but frequently, this procedure is more trouble than it’s worth. Most job applications, school applications, and other forms ask about “criminal convictions.” PI and DOC are not criminal convictions.
Contact a Dedicated Defense Lawyer Rochester
Even though Article 240 cases are violations instead of crimes, it’s not a good idea to face them alone. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
If you are being charged for a crime, you are probably wondering “what is a plea bargain?” Plea bargains, the term for an out-of-court settlement in a criminal case, resolve about 95 percent of the criminal matters in Monroe County.[1] However, the nature of a plea bargain varies greatly, mostly depending on an attorney’s skill and experience.
The plea bargain system is not perfect. The Constitution says little about such arrangements because at the time it was written, plea bargains were almost unheard of. So, a defendant’s rights during plea bargains are uncertain. That’s especially true since, for the most part, the process occurs behind closed doors.
If done properly, a plea bargain is almost as good as a complete dismissal of charges or a not-guilty verdict at trial. A Rochester criminal defense attorney can reduce or eliminate both the direct and indirect consequences of most criminal cases, and that’s what it’s all about.
What Is a Plea Bargain and How to Prepare For It
Some counties are open-file jurisdictions.[2] Prosecutors freely share the non-privileged information they have with criminal defense lawyers. That includes items like the police report, witness statements, and any physical evidence.
Other jurisdictions, however, are closed-file jurisdictions. Prosecutors only share the information federal law requires them to share, such as exculpatory evidence. And, prosecutors hang onto this information as long as possible, so a criminal defense attorney has little or no time to prepare.
So, in closed-file jurisdictions, a criminal defense attorney must conduct their own discovery. That means interviewing witnesses, filing motions to inspect physical evidence, and deposing police officers. If an attorney takes shortcuts in this area, it’s impossible to determine if the prosecutor’s offer is favorable or unfavorable.
The closed file/open file distinction is usually up to the elected District Attorney. The DA sets such policies for all assistant District Attorneys. Additionally, some DAs have limited open-file policies. Prosecutors share some information, such as the police report and charging instruments, like the indictment. If a defense attorney wants to see anything else, the attorney must make a motion in court.
Common Plea Bargain Arrangements
A “plea bargain” is actually an umbrella term for two basic kinds of out-of-court settlements. Many plea bargains contain elements of both.
Charge Bargaining
Sometimes, largely based on the evidence, prosecutors agree to reduce the charges. Examples include reducing aggravated assault charges to simple assault or reducing murder charges to manslaughter. Charge bargaining is not always available. It’s illegal for New York prosecutors to reduce DUI to a lesser-included offense, such as reckless driving.
Sentence Bargaining
Changing prison time to probation is the classic example of a sentence bargaining plea agreement. Prosecutors often consider a number of mitigating factors, such as the defendant’s age and criminal history, when they offer a sentence bargain.
When defendants plead guilty, they can usually either plead guilty or no contest. Legally, both these pleas have the same effect. Morally, there is a difference between admitting guilt and deciding not to contest the charges.
Many plea bargains in New York, especially felonies, require an allocution. Defendants must briefly summarize what they did or at least clearly state that they are pleading guilty because they are guilty and for no other reason.
Should I Accept a Plea Bargain?
There is no definitive “yes” or “no” answer to this question. The response largely depends on the strength of the state’s evidence, the availability of any defenses, and the defendant’s wishes. Some people like to plead guilty and put the matter behind them, and others prefer to let a judge decide.
If your attorney believes the plea bargain is a favorable deal, it’s usually best to accept it, even though there is a chance a judge or jury could completely exonerate you.
Count on Your Attorney
A favorable plea bargain is usually a good way to resolve a criminal case. For a free consultation with an experienced Rochester, NY drug charges lawyer, contact the Law Office of Frank Ciardi.
Most property offenses in New York have severe direct and indirect penalties. A Rochester criminal defense attorney can reduce or eliminate these penalties. That’s because there are a number of defenses to most property crimes.
The idea that private property is a fundamental right probably goes back to John Locke’s Second Treatise of Government, which he published in 1690.[1] Thomas Jefferson incorporated much of Locke’s writings into the Declaration of Independence. These ideas found their way into the Constitution as well.
So, as far as the Founding Fathers were concerned, offenses like burglary and arson were every bit as serious as offenses like assault and murder. The right to life and the right to property are both inalienable human rights.
What Are Some Basic Property Crimes?
Typically, property crimes are nonviolent crimes. But “nonviolent” is not synonymous with “nonserious.” All of the offenses below could mean substantial jail or prison time.
Fraud Charges
Most fraud crimes involve not only an unlawful taking of property but also a breach of personal or business trust. Examples include mortgage fraud, credit or debit card fraud, and lending fraud.
Burglary Charges
This offense is one of the most complex property crimes in New York. The traditional “breaking and entering” elements are very broad. Walking through an open door could be considered breaking, and reaching into an open box could be considered entering.
Arson Charges
The actus rea (criminal act) is usually rather straightforward in these cases. Any fire damage to any structure is normally arson. The mens rea (criminal state of mind) element is much more difficult to prove in court.
In court, the state must prove every element of every offense beyond a reasonable doubt. New York defines this phrase as “an honest doubt of the defendant’s guilt for which a reason exists based upon the nature and quality of the evidence.”[2]
What are Some Property Crime Defenses?
Like most other crimes, property crimes could involve procedural and substantive defenses. Some common defenses are outlined below.
Commonly, police officers question suspects before they arrest them for property crime. Officers must inform these suspects of their Miranda rights (you have the right to remain silent, etc.) before custodial interrogation begins. “Custody” means the defendant does not feel free to leave; “interrogation” means asking any question at all. So, in most cases, custodial interrogation begins very early in the process, perhaps as soon as an officer approaches a stopped car.
Since the burden of proof is so high, the property owner’s testimony is usually critical. Therefore, delay might be critical as well. Over time, witness’ memories fade. Additionally, over time, many witnesses relocate beyond a Monroe County judge’s subpoena power. If that happens the prosecutor might not be able to call the witness at all.
How Does a Criminal Defense Attorney Resolve These Cases?
Most judges hold pretrial hearings to determine what evidence is admissible at trial. That’s especially true if a criminal defense attorney raises an issue like failure to Mirandize the defendant or an illegal search warrant. The less evidence the prosecutor has, the easier it is to obtain a favorable resolution.
Pretrial diversion is normally an option in property crime cases. Program requirements vary, but generally, if the defendant pays restitution and completes some other program requirements, prosecutors dismiss the case.
Deferred adjudication is similar. The defendant pleads guilty and the judge places the defendant on probation. If the defendant successfully completes probation, the judge dismisses the case. Unlike pretrial diversion, however, deferred adjudication has some significant pros and cons.
The bottom line is that, in many cases, a criminal defense attorney can obtain a favorable result without risking a trial.
Contact a Dedicated Criminal Defense Attorney
Property crimes are quite serious, but there are a number of possible defenses. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. Home and jail visits are available.
Even though only a fraction of criminal cases go to trial, the presumption of innocence is still the cornerstone of a successful criminal defense.[1] The state must prove guilt beyond any reasonable doubt. In other words, there must be overwhelming evidence and no plausible defenses. So, a Rochester criminal defense attorney must only poke holes in the state’s case or introduce a defense that has some rational basis.
Homicide Charges
In criminal court, homicide is usually the intentional or reckless killing of another person. “Intentional” usually means non-accidental. The defendant must intend to kill or seriously injure the alleged victim. “Reckless” usually means a conscious disregard of a known risk, such as pointing a gun at someone and not checking to see if it’s loaded. In the State of New York there are four levels of homicide:
First Degree Murder
Some people, mostly government workers, are in a protected class. As such, murder charges are usually elevated from second to first degree. Additionally, people waiting for an alleged victim might be guilty of first-degree murder.
Second Degree Murder
The most common homicide charge is an intentional, malicious killing. Frequently, arguments get out of control and someone grabs something which could be used as a weapon.
First Degree Manslaughter
The aforementioned empty-or-loaded-gun pointing is the best example of first-degree manslaughter. Pushing a person off a cliff without knowing its height is another example.
Second Degree Manslaughter
These offenses are usually crimes of passion. For example, Ben and Jerry might get into a fight. But instead of reaching for a golf club, Ben pushes Jerry and he falls down the stairs.
Procedural problems plague many homicide investigations. A Rochester criminal defense attorney may use these issues to exclude evidence. Lineup identifications are a good illustration. Usually, only double-blind lineups are reliable. Neither the administering officer nor the witness must know the suspect’s identity. Most lineups are only blind. The witness does not know who the suspect is, but the administering officer does. So, the administering officer usually gives the witness subtle clues, which may be involuntary, to point the witness toward a certain person. That lineup may not be admissible in a trial if something like this happens.
Sexual Battery Charges
This category covers a number of offenses, but most of them involve unconsented sexual contact. In terms of direct punishment, these offenses are not as severe as a homicide. But in terms of indirect consequences, they might be worse.
Much like first-degree murder is based on status or action, the consent defense could involve the alleged victim’s status or the alleged victim’s actions. Some people, such as underage or “helpless” people, cannot consent as a matter of law. In this context, excessive drug or alcohol use could render a person helpless.
In New York, lack of consent usually means “the victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actor’s situation would have understood such person’s words and acts as an expression of lack of consent to such act under all the circumstances.”[2] That’s a rather vague definition.
Speaking of alcohol, this substance could affect the evidence in the case. Frequently, the defendant and alleged victim were both drinking. So, the alleged victim’s memory is often fuzzy. That could be a problem for the state since prosecutors have the burden of proof.
Assault Charges
These offenses are probably the most commonly charged crimes against persons in the Empire State. In New York, there are basically three levels of assault:
Assault by Contact
ABC is basically common-law battery. The state must only prove the defendant intentionally touched the alleged victim in a harmful or offensive manner. Injury is not an element of ABC. Maliciousness is not an element either. The touch must only be intentional (e. not accidental).
Simple Assault
If the alleged victim required first aid, prosecutors normally file assault charges. These cases are usually quite complex, especially if there was a domestic relationship between the defendant and the alleged victim.
Aggravated Assault
Continuing a familiar theme, AA can be a status or conduct crime. Emergency responders and other individuals are in a protected class. Also, prosecutors will file AA charges if the defendant uses a weapon and/or puts the alleged victim in the hospital. A “weapon” could be any object, such as a gun, knife, golf club, or even a coffee decanter.
To answer assault charges, Rochester criminal defense lawyers typically rely on a lack of evidence or an affirmative defense. The alleged victim’s testimony is usually critical in assault cases. And, over time, memories fade and witnesses lose interest in the case. Affirmative defenses include self-defense. The crime is usually excusable if defendants reasonably believed force was necessary to defend themselves or others.
Contact a Relentless Lawyer
Crimes against persons are serious, but defenses are available. For a free consultation with an experienced Rochester criminal defense attorney, contact the Law Office of Frank Ciardi. The sooner you call us, the sooner we start working for you.
Many people think the War on Drugs is over. But every year, Monroe County police officers still make hundreds of drug arrests.[1] Most of them are for simple drug possession.
Officers respond to disturbance calls at parties or pull over a carful of people in many situations. They find drugs during a warrantless search and arrest everyone in the room or everyone in the car. Cases like these have several defenses, and a skilled drug possession attorney Rochester will know how to present these defenses in court.
Drug possession convictions are crippling for anyone. But they are especially bad for students at the University of Rochester, the Rochester Institute of Technology, and other area schools.
Elements of a Drug Possession Case
Many people think possession is synonymous with ownership. In the everyday world, that’s usually true. I usually possess my living room television set even if I am in the bedroom. But in Monroe County court, prosecutors must establish three elements in possession cases, as follows:
Proximity
Control
Knowledge
These same basic elements apply in other possession cases, such as illegal weapons.
The state must establish all three prongs beyond a reasonable doubt. That’s the highest standard of proof in New York law. This showing is not easy to make, especially in the aforementioned situations.
Assume Rick is in the back seat (driver’s side) when a police officer pulls over the vehicle for speeding. The driver, Benjamin, acts suspiciously. Officers ask him for permission to search the car, and Benjamin agrees. They find a few OxyContin pills under the front passenger seat during the search. Officers then arrest everyone in the car, including Rick, for drug possession.
The charges against Rick would probably not hold up in court. Legally, the state could probably establish proximity, since both the drugs and Rick were in the passenger area. It would be very hard to establish control since there were other people between Rick and the drugs. And, unless Rick knew everyone in the car very well, knowledge might also be an issue.
Consequences for College Students
Drug cases have harsh indirect consequences for everyone. These consequences are especially acute for college students. Some of them include:
Immigration Issues:
Possession of marijuana is not a deportable offense, but possession of a controlled substance is normally deportable. The government could revoke a student or visitor visa after only a brief hearing.
Grad School Denial:
Until recently, many grad schools denied admission to anyone with a criminal record as a matter of course. Then the Department of Education adopted a rule which discouraged such actions. Now, grad schools might still consider applicants with criminal records. But a black mark on your record could put you behind other students in the competitive admission process.
Student Aid Revocation:
The federal government will not only deny future assistance. It might also demand students to pay back previous aid.[2] Many scholarships also have morality clauses, which are similar.
Academic Suspension:
When the state files drug charges, colleges usually begin parallel disciplinary actions. The results vary significantly in different cases. But most people can expect some academic penalties, such as probation.
Other than academic suspension, convictions trigger these adverse actions. So, avoiding a drug conviction is paramount.
Drug Possession Attorney Rochester and Case Resolutions
Most college students have clean criminal records. As such, they are usually eligible for pretrial diversion. Prosecutors often offer diversion programs in both misdemeanors and felonies, especially if the evidence is weak.
Program requirements vary. Typically, however, defendants must perform community service, complete some self-improvement classes, and jump through a few other hoops. Afterward, prosecutors dismiss the charges.
Deferred disposition might be available as well. The defendant pleads guilty, but the judge does not find the defendant guilty. Instead, the judge simply placed the defendant on probation. If the defendant successfully completes community supervision, the judge dismisses the case.
Immigration matters work a bit differently. Deferred disposition often counts as a conviction in these situations.
Contact an Aggressive Lawyer
Don’t let a drug possession conviction derail your educational career. For a free consultation with an experienced Rochester, NY criminal attorney, contact the Law Office of Frank Ciardi.
Once upon a time, the state rarely pursued money laundering charges. Prosecutors did not have the resources or know-how to investigate money laundering schemes properly, and the cases were difficult to prove in court. Now, things are different. Most prosecutorial agencies include a financial crimes division. And, due to changes in forfeiture laws, there is a presumption that any property connected to a crime is subject to seizure.
An assertive Rochester defense attorney evens the odds. Rochester defense attorneys understand business and financial operations laws and procedures. Additionally, they understand the way the law works. So, a reliable defense attorney can often successfully resolve money laundering charges, so you can move on with your life. Here are some common money laundering charges that require the help of a competent attorney.
Structuring/Smurfing
A person breaks proceeds from a major drug sale or other crime into small amounts. Then, the person makes deposits into multiple accounts to bury the money and avoid reporting requirements. Almost all U.S. and foreign banks have reporting requirements. And, the IRS aggressively enforces these requirements. So, prosecutors almost always telltale signs of smurfing schemes.
Grand juries often subpoena bank and other financial records to nail the coffin shut. Then, since Rochester defense attorneys cannot appear before grand juries, the jurors only hear the prosecutor’s interpretation of that circumstantial evidence.
Frequently, it’s best to voluntarily disclose these transactions, as long as a Rochester defense attorney is at your side to protect your rights.
Investment in Cash Businesses
It looks like New York lawmakers might legalize recreational marijuana in 2020. Since marijuana is illegal under federal law, most banks won’t touch marijuana dispensaries. So, for the most part, these businesses are cash-only. It’s very easy to hide money in such businesses. Other mostly-cash businesses include strip clubs, parking structures, and casinos.
Prosecutors often look for relationships with such businesses to help them establish money laundering charges. However, these transactions are difficult to trace, so these allegations often do not hold up in court.
Gambling and Rochester Defense Attorneys
If prosecutors connect illicit funds to gambling casinos, they can often claim title to all the winnings and sue the defendant for the difference. Commonly, a person pays cash for casino chips and plays for a short time. As long as the amount is not more than a few thousand dollars, most casinos do not ask questions about the money’s source. Then, the person cashes out. The casino usually gives the person a check or at least a receipt, so the person can claim the money as a gambling loss.
So, if the defendant visited a casino shortly after committing the crime, aggressive prosecutors almost always try to seize the gambling winnings. Rochester defense attorneys often use this over-aggressiveness against prosecutors. Frequently, they seize funds but there is little hard evidence of wrongdoing.
Black Salaries
Construction companies are notorious for employing off-the-books workers and paying them in cash. Sometimes, the cash is dirty cash.
Black salary money laundering cases are quite complex because the people who were paid in dirty money usually lose that money. That means state agencies that enforce payday laws get involved. As a result, owners could lose their business licenses.
In these cases, the ripple effects are often worse than the direct effects. Your Rochester defense attorney must deal with both direct and indirect effects.
Property Purchases
This money laundering scam is a lot like the gambling money laundering scam. People buy property, often from Craigslist or other cash-only online platforms, with dirty money.
Grand juries can usually subpoena emails and other records related to these allegations. Buying a prepaid debit card with dirty money is much the same. In these cases, the state can usually seize everything the person bought with that card.
Frequently, Rochester defense attorneys negotiate buybacks in these situations. Prosecutors drop forfeiture cases if defendants pay a portion of the estimated value.
Contact The Law Office of Frank Ciardi, Rochester Defense Attorneys
Prosecutors commonly file money laundering charges to supplement drug trafficking and other such crimes. For a free consultation with an experienced Rochester defense attorney, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
