The Second Amendment gives people the right to keep (own) and bear (carry) firearms. However, the Constitution also gives the federal government, and the states, the power to restrict this right in the interest of public safety. Since New York is one of the bluest of blue states, the Empire State’s gun laws significantly restrict firearm possession. Carrying a gun is generally illegal, even if you do not intend to use it.
Even though the laws are broad, prosecutors must still establish every element of every offense beyond a reasonable doubt. Given that high burden of proof, a Rochester gun charges lawyer is often able to engineer a favorable plea bargain or even get such cases thrown out of court.
Elements of the Offense
Section 265.01, which is fourth-degree possession, is the most commonly charged gun possession offense in New York. Possessing an “imitation pistol” is also illegal if the defendant intends to use it menacingly.
Enhancements apply if a defendant possesses a more dangerous firearm, or if the defendant possesses the gun in a prohibited place, such as a school.
Procedural defenses often apply in gun possession prosecutions. Officers cannot charge a person with carrying a gun unless they find it first. Such encounters often give rise to issues such as:
Failure to Give Miranda Warnings: Before police officers begin custodial interrogation, they must inform defendants of the Constitutional rights, such as the right to remain silent and the right to counsel. This obligation applies when custodial interrogation begins. The law is vague on this point, but generally, custodial interrogation begins when an officer asks a question, and the defendant is not free to leave.
Improper Search Warrant Exception: Officers hardly ever have search warrants in gun, drug, or other possession cases. So, prosecutors must rely on search warrant exceptions, such as plain view. However, these exceptions are very narrow. For example, if the initial law enforcement contact was illegal, the plain view exception does not apply.
If these initial procedural defenses are unavailable or ineffective, a Rochester gun charges lawyer usually turns to substantive arguments, such as the legal definition of “possession.” Proximity alone is not enough to establish possession in criminal court. The additional elements are:
Knowledge: A person might be sitting on a gun and not legally possess it. The defendant must know that there is a gun under the seat. General knowledge about an illegal object, or a suspicion that a gun may exist, is probably insufficient.
Control: If the firearm is much more than an arm’s length away from the defendant, it is challenging to establish control in court. It’s even harder to prove this point if someone else was holding the gun or the firearm was locked away.
The additional elements of possession often come into play in automobile possession cases. Generally, if an officer finds a gun in a car, the officer arrests everyone in the care for a 265.01 infraction. These arrests do not typically hold up in court.
The criminal gun possession law does not apply to an antique firearm. If the gun has no commercially available ammunition, it is an antique firearm under New York law.
Rochester Gun Charges Lawyers and Criminal Case Resolutions
Possession without intent is usually nonviolent, especially if the gun was not loaded. So, pretrial diversion may be available. If the defendant completes all program requirements, the prosecutor dismisses the case.
Deferred disposition may also be available, especially if the case involves any of the defenses outlined above. If the evidence is hopelessly defective, as it often is on an issue like legal possession, a judge may throw the case out of court after a pretrial hearing.
Connect with an Aggressive Attorney
Criminal possession cases have several possible defenses. For a free consultation with an experienced Rochester gun charges lawyer, contact the Law Office of Frank Ciardi. Home and jail visits are available.
Many people ask this question since plea bargains resolve over 95 percent of criminal cases. However, there is a big difference between an attorney-negotiated plea bargain and the prosecutor’s first offer. Whether you are buying a car or settling felony criminal charges, the other party’s first offer is hardly ever the best. Since there is a lot more at stake in criminal cases, you need a Rochester criminal defense lawyer whether you are pleading guilty or going to trial.
When the Founding Fathers drafted the Sixth Amendment’s right to counsel, plea bargains were almost unheard of. These arrangements became more common around the turn of the 20th century. As the country’s population expanded rapidly, there were not enough courts and judges to handle the increased caseload. By the 1960s, plea bargains were more common than trials.
Features of a Favorable Plea Bargain
The best plea agreements feature deferred disposition options which result in no criminal conviction. These arrangements are especially important in New York. It is difficult to expunge or seal criminal records in the Empire State.
At a minimum, a plea bargain should include a reduced sentence or a reduced charge. A trial may be a better option if that’s not the case.
Pretrial diversion is usually available in misdemeanor cases if the defendant has no criminal record. Program requirements vary in different courts. But most Monroe County pretrial diversion plans require defendants to complete community service requirements, pay restitution (if any), and attend a victim impact panel or another similar class. Then, prosecutors dismiss the case.
Deferred disposition is a lot like probation. But, if the defendant successfully completes all probation requirements, the judge dismisses the case. Often, a Rochester criminal defense attorney can file a motion for early release from probation, so these requirements are not as onerous.
These options have some significant pros and cons, as outlined below.
A reduced or probated jail sentence is obviously a good thing. Reduced charges may be an even better thing. For example, prosecutors sometimes reduce some sex crime charges to reckless conduct. This offense does not have nearly as many collateral consequences.
How Rochester Criminal Defense Lawyers Get the Best Deals
Usually, prosecutors do not hand out good deals like the ones described above. They are only available if the defendant has a solid defense or the state’s evidence is weak. Many criminal cases have procedural defenses. Some common ones include:
Defective search or arrest warrant,
Inapplicable search warrant exception, such as plain view or consent, and
Failure to properly Mirandize the defendant.
A lack of evidence is also a good defense. Prosecutors must prove every element of the offense beyond a reasonable doubt. Many times, circumstantial evidence alone is not sufficient.
DUIs are an excellent illustration. Circumstantial evidence of intoxication, like bloodshot eyes and an odor of alcohol, often does not hold up in court.
Should I Accept the Negotiated Plea Arrangement?
When people buy cars, it is relatively easy to determine if the sale price is good or bad. But in criminal cases, only a Rochester criminal defense lawyer has enough experience to make this determination. So, if your lawyer recommends acceptance, that’s probably what you should do.
Additionally, guilty pleas usually have significant consequences. Prosecutors have no legal duty to explain these consequences to defendants, so they do not do so.
The aforementioned deferred disposition options are a good example. If a defendant does not successfully complete pretrial diversion, the prosecution simply starts over. But if a defendant does not successfully complete deferred adjudication probation, the judge could sentence the defendant to the maximum legal sentence.
Contact a Diligent Attorney
A negotiated settlement is usually a good way to resolve criminal charges. 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.
Even though the Sixth Amendment guarantees the right to an attorney, one way or another, defendants usually pay for these legal services. But are you owed a Rochester criminal defense lawyer?
In some venues, such as small claims court, self-representation is usually a good idea. But in criminal court, self-representation is typically unfavorable. Even though there is no instruction manual or warning label, defendants must know all the procedural rules and all the consequences of a conviction. That handicap is impossible to overcome, especially in cases like DWIs, which have so many procedural rules and so many direct and indirect consequences.
Your Criminal Defense Representation Options in Monroe County
With this in mind, an effective Rochester criminal defense lawyer is necessary when you go to court. What kind of lawyer is available in these situations?
Public assistance may be an option. Monroe County has a very good public defender’s office. Additionally, many criminal judges appoint attorneys in certain cases.
Generally, these lawyers are always available if the defendant is in jail. People who are behind bars usually have no way to hire a lawyer. So, the county fulfills the Sixth Amendment’s requirement.
Public assistance may be unavailable if the defendant is out on bond. Many judges rightly or wrongly assume that if a defendant can afford bail, the defendant can also afford a lawyer. If a judge does assign a court-appointed lawyer or public defender and the court finds the defendant guilty, the judge assesses legal fees as court costs.
In other words, you have a choice if you are not in jail. As mentioned, the public assistance attorneys in Monroe County are often just as experienced as private Rochester criminal defense lawyers. However, the myth of the overworked public defender is partially true. For example, the American Bar Association recommends that public assistance lawyers handle a maximum of one hundred and fifty felonies annually. The average public defender handles almost twice that number.
What to Look for in a Rochester Criminal Defense Lawyer
So, in most cases, a private lawyer is a better option. Some important things to look for while searching for a reputable Rochester criminal defense lawyer are:
Experience:
There really is no substitute for experience. But years of practice only tells part of the story. Your attorney should also have substantial criminal trial experience. Even though most criminal cases settle out of court, the threat of a trial must be credible to get a good pretrial deal.
Dedication:
Criminal defense requires a unique touch and a special commitment. Divorce lawyers, corporate lawyers, and others do not always have what it takes. That being said, diversity is often a good thing. So, your Rochester criminal defense lawyer should probably devote at least 50 percent of his or her practice to criminal defense.
Location:
Driving across town to meet with your lawyer will get really old, really fast. So, your attorney should have an office near your home or work. Alternatively, your lawyer should be willing to meet you someplace convenient.
Accessibility:
In this area, choosing a lawyer is a little like choosing a restaurant. If no cars are in the parking lot, that’s a bad sign. If the hostess says you must wait an hour for a table, that’s a bad sign too. Likewise, your lawyer should be busy, but not to the point where they cannot assist you.
Note that the cost did not make the list. Most lawyers charge about the same amount for roughly the same services, depending on the lawyer’s experience. Furthermore, choosing a lawyer is a very important decision. Since your freedom and your future are at stake, you should be prepared to spend some money.
Contact an Assertive Lawyer
If you face any criminal charges, you need a good lawyer. For a free consultation with an experienced Rochester criminal defense lawyer, contact the Law Office of Frank Ciardi. After-hours visits are available.
There is an old lawyer joke which says, “An attorney is someone who helps you get what’s coming to you.” In other words, a Rochester, NY criminal lawyer cannot alter the outcome of a criminal case.
Alas, many times that is true. For various reasons, many attorneys take the prosecutor’s first offer, no matter how good or bad it is.
Many people have heard of, or maybe even remember, Senator Robert F. Kennedy. After he won the 1968 California primary, President John F. Kennedy’s brother was assassinated at the Ambassador Hotel in Los Angeles. Police quickly arrested 24-year-old Sirhan Sirhan and charged him with the crime.
Noted attorney Grant Cooper defended Sirhan. For some reason, Cooper, who died in the 1990s, did not aggressively attack the state’s evidence against Sirhan, even though there were some holes in the case. If he had been more assertive, Sirhan may not be sitting in a California prison today serving a life sentence.
So, a diligent Rochester, NY criminal lawyer can make a significant difference, in at least three areas of your criminal case.
Pretrial Release
This first phase of a criminal case is also one of the most important ones. Unless an attorney secures pretrial release, the presumption of innocence essentially becomes a presumption of guilt. It’s extremely hard to defend cases under these conditions. Additionally, if they find out the defendant is in jail, many Monroe County jurors assume the defendant did something wrong. Finally, many incarcerated defendants agree to unfavorable plea bargains just to “get it over with.”
In serious criminal cases, such as extremely violent crimes or high-dollar fraud cases, bail is so high that the defendant cannot possibly afford it. Furthermore, to most Rochester families, two or three thousand dollars might as well be two or three million. They simply do not have that kind of cash.
In these cases, a Rochester, NY criminal lawyer usually demands a bail reduction hearing. At this hearing, the judge often reduces bail based upon factors like:
Amount the defendant can pay,
Severity of the offense,
Defendant’s ability to travel, or more commonly, the defendant’s inability to travel,
Lack of threats to witnesses or alleged victims, and
Defendant’s contact with the community.
Often, the defense and prosecutor come to an agreement that involves some give-and-take. For example, the prosecutor might agree to OR (Own Recognizance) release if the defendant submits to electronic monitoring.
Constructing a Defense
Just like no one goes to war with an unloaded gun, no attorney defends a client without a clear vision of a defensive strategy.
Many times, a procedural defense is available. Drug cases are a good illustration. Most of these cases involve either search warrants or exceptions to the search warrant requirement. If the warrant is defective in any way, or the claimed exception does not apply, most Monroe County judges will throw the case out of court.
Substantive defenses may be available as well, and once again, drug cases are excellent examples. Officers always testify that a substance “field tested” positive for an illegal drug. But these tests don’t always hold up in court. In December 2018, Florida police charged a man with heroin possession. The heroin turned out to be Tide laundry detergent. Cases like this one are extreme, but they happen more often than people think.
Resolving the Case
It all comes down to this. About 97 percent of the time, a negotiated plea bargain resolves a criminal case. This pretrial settlement usually involves one or both of the following:
Lesser sentence and/or
Reduced charges.
For example, some Monroe County prosecutors reduce DUI charges to reckless driving. This offense is a serious misdemeanor, but it does not have the same collateral consequences as DUI. If your Rochester, NY criminal lawyer secured the prompt pretrial release and diligently prepared a defense, there’s a very good chance that the case could end with a favorable resolution.
Count on an Experienced Rochester NY Criminal Attorney
The right legal defense makes a big difference for you and your family. For a free consultation with an experienced Rochester, NY criminal lawyer, contact the Law Office of Frank Ciardi. Home and jail visits are available.
After they are arrested, many individuals do not reach out to a criminal attorney until after the state has filed formal charges. Some of these individuals think the entire thing will blow over while others do not think there’s anything a defense attorney in Rochester, NY can do until the case goes to court.
But that’s usually a mistake. The sooner you contact a defense attorney, the more prepared your lawyer will be, and the sooner the case will be over, at least in many cases.
Other people receive notice that a grand jury is investigating them, perhaps for financial fraud. Some of these individuals wait until after an indictment is filed to connect with a lawyer. For the reasons outlined below, contacting a defense attorney immediately is best.
Contacting a Defense Attorney in Rochester, NY After Arrest
An experienced Rochester, NY defense attorney will be able to apply their strategies when planning ahead instead of trying to play catch up. Prompt jail release is often the key to a successful outcome. If the defendant remains in jail, an attorney must play from behind.
Even if you cannot afford the amount of bail the judge sets, or even if the judge denies bail altogether, a Rochester, NY defense attorney can help. A lawyer can reduce bail amount at a bail reduction hearing and set up compromises, like supervised release with electronic monitoring, in no-bail cases.
When the attorney and client actively work together, your defense is much better. Your lawyer has a better understanding of the facts, so they are able to research the law better. As a result, you have a much stronger defense.
Contacting a Defense Attorney When You Receive a Target Letter
When people receive grand jury subpoenas, a shocking percentage of them agree to testify without consulting a lawyer. They reason that this body will not indict them if they can just “explain things” to the grand jury.
However, guilty or not, the grand jury will probably indict you. In 2010, federal grand juries reviewed over 162,000 federal cases. They did not indict in eleven of them.
Quickly getting a Rochester, NY defense attorney on your side will most likely not keep the grand jury from indicting you. But, for the reasons outlined above, early partnerships greatly increase the chances of a successful outcome.
That outcome could be a favorable pretrial agreement involving lesser charges, a reduced sentence, and perhaps no final criminal conviction. If the case goes to trial, a defense attorney in Rochester, NY only needs to create reasonable doubt in one juror’s mind. If that happens, the jury must find the defendant not guilty.
Reach Out to a Dedicated Attorney
The sooner you contact an attorney, the better your case will end. For a free consultation with an experienced Rochester, NY drug charges lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.
Drug possession cases make up the vast majority of drug prosecutions in Monroe County. In fact, they even constitute about 85 percent of the drug arrests in Monroe County. Many of these arrests are for marijuana possession alone. Although marijuana possession is usually a misdemeanor, most other drug possession offenses are felonies. Even if the defendant only had a couple of prescription pills or a barely measurable amount of an illegal street drug, like crack cocaine, they may need to seek help with drug charges in Rochester, NY.
There are a number of defenses to drug possession charges. An experienced drug charges lawyer in Rochester, NY can leverage these defenses into a favorable pretrial resolution or a not-guilty verdict at trial.
Pretrial settlement options like pretrial diversion or deferred adjudication are often available in drug possession cases. Pretrial diversion is an alternative to prosecution where the defendant can undergo alternative sentencing typically through community service, counseling or fines. Deferred adjudication is a form of a plea deal where the defendant agrees to certain requirements laid out by the court ahead of time. These kinds of resolutions are important since New York essentially has no expungement law.
No Miranda Warnings
Most people are at least somewhat familiar with the Miranda warnings (you have the right to remain silent, you have the right to an attorney, etc.). In movies and TV shows, the defendant often goes free if officers do not immediately read suspects their rights.
But the real world works a bit differently. Officers must only inform suspects of their Constitutional rights after custodial interrogation begins. Additionally, the Supreme Court sharply limited the scope of the Miranda decision in 2010’s Berghuis v. Thompson.
Nevertheless, the rule remains in place. “Custodial interrogation” is a very ambiguous term. Basically, this phase begins when officers ask questions and defendants do not feel free to leave at any time. This point usually begins before officers say, “You’re under arrest,” but there’s no bright line.
If defendants give statements to officers during custodial interrogation and the officers have not read the Miranda rights, those statements might be excluded in court.
Drug Charges in Rochester, NY, and Inapplicable Search Warrant Exceptions
Most drug possession prosecutions begin with chance encounters. First, an officer pulls over a motorist for a traffic violation or sees a suspicious character on a street corner. After officers approach these defendants, they find drugs. A search warrant is nowhere in the picture. However, the seized drugs may still be admissible in court if a Monroe County prosecutor convinces a judge that a recognized search warrant exception applies. Some common ones include:
Plain View: If officers see drugs or other contraband items in a car or anywhere else, they may confiscate them. That’s assuming the traffic stop or other detention was lawful. That’s also assuming the officers did not use binoculars, fancy surveillance equipment, or any other such devices.
Consent: Owners may give officers consent to search their vehicles, dwellings, and other property. The person giving consent does not have to be the official record owner. But the consenting party must at least have apparent authority to give permission to search.
Pat-Down Searches: If they have reasonable suspicion, officers may pat suspects down for weapons and seize any contraband they find. The problem is that, in drug possession cases, it’s hard to tell the difference between a baggie of drugs and a baggie of anything else just by touching it.
Other drug charges in Rochester, NY involve the automobile exception or the exigent circumstances exception.
No “Possession” of the Controlled Substance
Finally, simply being close to drugs is not enough. In addition to proximity, Monroe County prosecutors must also establish:
Knowledge and
Control.
So, in the aforementioned vehicle cases, it’s hard for prosecutors to connect a back-seat passenger with front-seat drugs. That’s especially true if the defendant did not know the other people in the car very well (possible lack of knowledge) and/or the drugs were in another person’s coat pocket (lack of control).
Count on a Tough Attorney
Drug possession cases are not easy to prove in court. For a free consultation with an experienced Rochester, NY drug charges lawyer, contact the Law Office of Frank Ciardi. Convenient payment plans are available.
