The time for fighting traffic tickets has never been more pertinent. During coronavirus lockdowns, traffic enforcement plummeted by over 80 percent.[1] Since motorists could almost literally get away with anything unless they caused a fatal accident, they speed excessively, drove recklessly, and otherwise ignored traffic laws. Now, police officers in Monroe County are determined to end these bad driver habits. So, in many places, traffic enforcement is now more aggressive than ever.
The sudden, drastic uptick in traffic enforcement caught many drivers off guard. Almost overnight, officers began writing citations for offenses they’d let slide for about a year. Municipal prosecutors are aggressive as well. They vigorously prosecute cases they largely ignored during the pandemic. The direct costs are just the beginning. A single speeding ticket in New York causes insurance rates to increase by 15 percent.[2] These citations have other indirect costs as well.
Once upon a time, paying for the ticket and forgetting about it was a wise strategy in this area. Today, the costs are simply too high. Additionally, New York now has a driver’s license points system. Even a minor violation could mean license suspension. Only a Rochester traffic violation lawyer can reduce or eliminate these high costs. Fighting traffic tickets is as important as ever.
Fighting Traffic Tickets: Procrastination
Normally, it’s a terrible idea to put something off. Typically, if you attack a problem head-on, the negative consequences are nonexistent or at least not as bad. However, in some situations, procrastination could be a good traffic violation defense strategy.
If a driver fails to appear in court, the judge generally issues an arrest warrant. But officers generally make no attempt to serve these warrants. Instead, they enter them into the computer. Then, when the defendant commits another traffic violation or otherwise runs afoul of a law enforcement officer, the warrant pops up.
Arrest warrants don’t have statutes of limitations. They’re valid until they’re served. Additionally, most Monroe County law enforcement agencies have mandatory arrest policies in this area. If a warrant pops up, they must serve it.
So, the procrastination strategy is risky. However, these risks are lower if the defendant moves to another county. Most counties don’t extradite prisoners to other counties for traffic violations, generally for liability reasons.
Here’s the payoff. The police officer turnover rate has increased by 40 percent since 2022.[3] An eight or nine-month delay almost guarantees that the arresting officer won’t be available to testify. No witnesses means no case.
Fighting Traffic Tickets: Traffic School
Procrastination is risky. Traffic school, on the other hand, is a sure thing. Or at least it seems to be a sure thing.
Commercial drivers, especially truck drivers, should be wary of traffic school. This option erases the judicial record. But it doesn’t erase the ticket. So, the infraction might still show up on a Safety Maintenance System report. SMS reports use point systems, much like the aforementioned driver’s license suspension points system. Too many SMS points could mean commercial license suspension or, more likely, higher commercial insurance rates. Increased overhead makes it much harder to make money as an owner-operator.
For non-commercial drivers, traffic school is usually a good alternative, assuming the judge allows the driver to take this class. These strict qualifications include:
Non-serious charges (no DUIs or reckless driving),
Valid auto insurance and driver’s license at the time of the offense, not at the court date,
Maximum four points drivers’ license points,
No traffic diversion program in any jurisdiction within the past 12 months,
No DUI conviction within the past 18 months in any jurisdiction,
Non-accident traffic offense, and
Not speeding 30mph or more over the limit.
These are the minimum qualifications. The judge may still deny a traffic diversion program request and usually does deny it if the applicant had any prior traffic tickets in the last ten years.
These denials are especially common if the driver doesn’t have a Rochester traffic violation lawyer. A lawyer advocates for drivers. This advocacy increases the chances of approval, especially in borderline cases.
Fighting Traffic Tickets: Legal Defense
If traffic school is unavailable or inappropriate, delay and appeal might work. A legal defense may be available as well.
We mentioned the delay strategy above. Long delays are very common in higher criminal courts. Additionally, many judges hand out continuances like candy on Halloween. Delays are shorter in traffic courts. Furthermore, these judges only grant continuances in limited cases.
An appeal is an effective strategy if the motorist got a ticket in a small town, like Churchville, Hamlin, or Scottsville. These towns often cannot afford officer overtime. So, they at least subtly discourage officers from traveling to Rochester for appeal hearings. Once again, no witness means no case.
Several taking-the-bull-by-the-horns legal defenses may be available as well. A Rochester traffic violation lawyer looks for these defenses during initial case evaluations.
Typos on the Ticket
Some people believe that any typographical error invalidates a traffic ticket. That would be nice, but it’s not true because of a legal doctrine called idem sonans. This phrase is Latin for “sounds alike” and Legalese for “close enough.”
Smith/Smythe and Thomas/Thompson are good examples. If two words sound alike, the judge basically overlooks the error.
Some errors cannot be overlooked if they create a variance between the pleadings and the proof. If a traffic ticket states Michelle was driving a Nissan and she was driving a Honda, the proof and pleadings don’t match.
Enforcement Issues
Speeding tickets are the most common traffic tickets in Monroe County. These citations have enforcement issues, as follows:
Pacing: Many officers use their own speed to estimate another vehicle’s speed. Some cars, mostly muscle cars, sound fast even if they aren’t moving fast. Furthermore, it’s almost impossible to pace another vehicle if the officer is standing still.
RADAR: This device projects a cone of light at moving vehicles. So, RADAR guns are very accurate at close range. At medium range, and especially long range, the cone of light widens. Therefore, the RADAR gun proves a vehicle was speeding, but it doesn’t prove which one was speeding.
LIDAR: Laser enforcement is very precise. But laser guns also require lots of maintenance and calibration. So, a Rochester traffic violation lawyer can often successfully challenge LIDAR results.
The enforcement issue doesn’t have to be strong enough to “beat” the charge. It only must be strong enough to create reasonable doubt.
Mistake of Fact
Most of us know that ignorance of the law is no excuse. People must abide by speeding laws even if they don’t know speeding is illegal. A mistake of fact, however, could be a defense. A motorist cannot stop at a stop sign if a tree branch obscures it.
There’s a big difference between a criminal arrest and a criminal conviction. For a free consultation with an experienced Rochester traffic violation attorney, contact the Law Office of Frank Ciardi. Virtual, home, and jail visits are available.
Underage drinking has leveled off recently. But it still directly or indirectly contributes to about 4,300 deaths annually in the United States.[1] Children’s still-developing bodies and low weight make it hard to process alcohol. One or two drinks to a 16-year-old is like four or five drinks to a 36-year-old. Additionally, underage drinking often causes early-onset alcohol use disorder (AUD). To put it bluntly, high alcohol consumption ravages the brain and body, causing many emotional and physical problems.
New York law targets caregivers, and not children, in this area. Minor in Possession (MIP) is a traffic ticket in New York. Providing alcohol to a minor, except in some situations, is usually a misdemeanor or felony. In many cases, these laws apply even if the parent didn’t give the child a drop of alcohol. A Rochester underage drinking lawyer attacks the state’s evidence and reduces or eliminates the direct and collateral consequences of an underage drinking-related offense.
Social Host Liability
Like MIP, “knowingly allowing a party, gathering, or event where minors are present and alcoholic beverages are consumed by one or more minors” is a violation. Since the offense is not severe, many people don’t need a Rochester underage drinking lawyer to represent them, especially if it’s a first offense. But, as outlined below, the collateral consequences could be severe. So, a lawyer must act quickly to get the charge thrown out of court.
The ”knowingly” element is usually the most challenging part to prove in court. Frequently, Mom and Dad leave for the weekend, so Jack and Jill throw a party. A ne’er-do-well kid brings booze, the party gets rowdy, a neighbor calls the police, the cops show up, and the parents get in trouble.
Before we get to “knowingly,” there’s a preliminary matter. Frequently, the neighbor is a tattletale, and the tip is unreliable. That’s especially true if the neighbor has a history of swatting (falsely summoning police officers). Prosecutors cannot work backward. They cannot argue that the tip was accurate and, therefore, reliable. Accuracy and reliability are two different things.
As for “knowingly,” Jack and Jill’s prior conduct is relevant. Occasionally, Mom and Dad are babes in the woods who had no idea their darling children would throw a wild party. Mom and Dad say a few times, “Don’t throw a party, and don’t open the liquor cabinet.” Generally, the facts are somewhere in between. The facts must gravitate towards that second example because prosecutors must establish guilt beyond a reasonable doubt.
These convictions often prompt child services investigations. Because social host liability isn’t too severe, most investigators let parents off with a warning, especially if no one got hurt and the parents have a clean record. Nevertheless, an investigator will show up, poke around, and ask uncomfortable questions.
Unlawfully Dealing with a Child
Selling or giving alcohol to someone over 17 but under 21 is a Class A misdemeanor in New York (maximum one year in jail and $1,000 fine). There’s a big difference between knowingly allowing consumption and giving or selling alcohol directly to a minor, which is what Section 260.20 requires.
The burden of proof in these cases is relevant as well. Usually, a competent witness must see the defendant give booze to the underage person. These witnesses don’t grow on trees.
Most red states allow supervised or in-home minor consumption of alcohol. Most blue states, including New York, don’t have this exception.
An exception might apply in the Empire State if the minor consumed alcohol as part of a religious service or if the defendant is a teacher and “the tasting or imbibing of alcoholic beverages is required in courses that are given only for instructional purpose during classes conducted according to such curriculum.” We didn’t know that wine tasting was a high school or college elective, but there are many things we don’t know.
Contributing to the Delinquency of a Minor
Section 260.10 is a combination of unlawfully dealing with a child and social host liability. If the child is under 17, it’s a misdemeanor to act “in a manner likely to be injurious to the physical, mental or moral welfare of a child.” This broad wording could include directly or indirectly providing alcohol to a minor.
The exact proof problems and collateral consequences discussed above apply in these cases. The collateral consequences are usually worse. Even if the parent has a clean record, child welfare almost always takes adverse action in these cases because of the child’s age. That adverse action is rarely removed but usually involves parenting classes and other measures.
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester underage drinking attorney. We routinely handle matters in Monroe County and nearby jurisdictions.
The modern criminal justice system began taking shape in the mid-1800s. The country was growing rapidly, and criminal courts lacked funding. 1881 Californian Albert McKenzie may have entered the nation’s first voluntary guilty plea.1 Prosecutors alleged that he embezzled $52.50 from his sewing machine-maker employer. In exchange for his plea to misdemeanor embezzlement, prosecutors dropped the felony charge.
Today, for better or worse, plea bargaining dominates the criminal justice process in New York. More on that below.
The country is even bigger now. Rochester was a one-horse town in 1881. Today, it’s a large metropolis. So, prosecutors are more willing than ever to make favorable deals. However, they don’t give out these deals like toys at Christmas. Instead, a Rochester criminal defense lawyer must thoroughly evaluate a case, formulate a defense, and attack the state’s evidence.
Jail Release
The criminal justice process starts with an arrest. Informal investigations lead to most arrests, like DUI, assault, and drug possession. A single officer, or perhaps two or three, either sees an offense in progress or responds to a disturbance call and, following a brief investigation, makes an arrest.
Sometimes, judges issue arrest warrants, often after a more extensive investigation, like a murder investigation. Arrest warrants have no expiration date. Once a judge issues a warrant, it’s valid until a police officer serves it.
In both situations, defendants usually go to jail. Immediate jail release jumpstarts a criminal defense and preserves the defendant’s mental health. Rather than applying the presumption of innocence, jurors assume incarcerated defendants did something wrong. In terms of mental health, incarceration causes stress hormone buildup. Prolonged exposure to stress hormones causes brain injuries.2
Three jail release options are available in Monroe County: own recognizance release, cash bail, and a bail bond.
OR release is “go forth and sin no more” release. Defendants with no criminal history and face nonviolent misdemeanor charges often walk free if they agree to stay out of trouble, appear in court, and meet other program requirements. Cash bail is like a rental property security deposit. Defendants who deposit the entire amount in cash and fulfill all release conditions get most of that money back. A bail bond is an insurance policy. The bonding company assumes financial risk if the defendant skips bail.
Sometimes, initial jail release is unavailable or unaffordable. A Rochester criminal defense lawyer requests a bail reduction hearing in these cases. At this hearing, unless the defendant is a clear flight risk or threat to public safety, reasonable jail release terms are usually available, as per the Eighth Amendment.
Sometimes, the defendant doesn’t have a choice. Judges only appoint lawyers for indigent defendants. Different judges define “indigent” in different ways. Frequently, if the defendant is out on bond, the defendant isn’t indigent.
A court-appointed lawyer or public defender isn’t necessarily a bad idea if available. Most judges only appoint experienced Rochester criminal defense lawyers. Pitfalls abound. For example, stories of overworked public defenders are usually exaggerated, but they’re not entirely false. Additionally, the defendant has no say so in the appointment process. You get who you get, and you don’t throw a fit.
A private Rochester criminal defense lawyer is usually a better option. Defendants choose their lawyers and can fire them at almost any time.
Announcement
This word, which could involve one court setting or multiple settings, is Legalese for “deciding what to do next.”
Initially, a lawyer evaluates the case and looks for defenses. In some ways, these defenses usually involve the burden of proof in a criminal case. Prosecutors must establish guilt beyond any reasonable doubt. Because this standard is so high, they probably won’t get convictions unless prosecutors have overwhelming evidence.
Evidence credibility is vital. For example, a witness might pick a suspect from a blind lineup (the administering officer knows the suspect’s identity). These lineups aren’t very reliable. A double-blind lineup (neither the administering officer nor the witness knows the suspect’s identity) is much more solid.
But we’re getting ahead of ourselves. Procedural defenses often apply. Let’s go back to the DUI example. Police officers must have reasonable suspicion of criminal activity to detain motorists. They cannot pull over drivers because they don’t “look right” or “act right.”
An affirmative defense might apply as well. For instance, an affirmative defense like self-defense might use in an assault case.
Sometimes, the evaluation process involves some investigation. Perhaps a Rochester criminal defense lawyer finds an alibi witness or a witness who saw things differently.
Resolution
In the modern justice system, only a handful of cases go to trial.3 Many people criticize the plea bargain system for its lack of transparency. Plea negotiations usually take place behind closed doors. But that’s the system we have.
If a Rochester criminal defense lawyer identifies and effectively leverages a procedural or substantive defense during these negotiations, charge reduction pleas, like the Albert McKenzie plea, are likely. A lesser punishment, like probation instead of jail time, is also expected.
Monroe County has two types of probation: regular probation and deferred disposition. Regular probation is, well, standard. Deferred disposition is, well, irregular. The defendant pleads guilty or no contest (the two pleas have the same legal effect), but the judge doesn’t find the defendant guilty. Instead, the judge defers that part of the criminal justice system until the defendant completes probation. If the defendant toes the line, the judge dismisses the case.
Pretrial diversion, a form of pretrial deferred disposition, is also often available. Prosecutors drop the charges if the defendant performs community service and jumps through other hoops. Pretrial diversion is usually only available for misdemeanors.
If prosecutors at a Rochester criminal defense lawyer can’t agree on a disposition, the defendant has two options. Some defendants choose open pleas. These defendants quite literally throw themselves at the mercy of the court. A bench or jury trial is an option as well.
Post-Conviction Matters
Probation violations and early discharge motions are the most common post-conviction matters in Monroe County.
Prosecutors file probation violation motions if the defendant violates a condition of probation, such as committing a new infraction, possessing a prohibited substance, or missing a meeting. Usually, a Rochester criminal defense lawyer convinces prosecutors to give the defendant a second chance. Sometimes, in return, the defendant must show something, like serving a few days in jail as a condition of reinstatement.
Under New York law, a judge may terminate probation at any time if the probationer doesn’t need guidance, training, or other assistance which would otherwise be administered through probation supervision, the probationer has diligently complied with the terms and conditions of the sentence of probation, and the termination of the punishment of probation is not opposed to the protection of the public.
In practical terms, if the defendant’s supervision officer agrees to the early discharge motion and the defendant is completely paid up in terms of fines and restitution, many judges sign them without holding hearings.
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester underage drinking attorney. We routinely handle matters in Monroe County and nearby jurisdictions.
Many states use a number (first-degree, second-degree, and third-degree) classification system to divide felonies. But in New York, we like to do things a little differently. So, state law divides felonies into five categories: Classes A to E, A as the worst, and E as an enhanced misdemeanor.[1] But even a “minor” felony is much worse than any misdemeanor.
A felony conviction usually means confinement in a faraway state prison, not a local jail. Additionally, felons can never participate in civic events, like voting or sitting on a jury, own firearms, qualify for Section 8 housing assistance, or obtain most professional licenses.
Since the stakes are so high, the only job of a Rochester criminal defense attorney is to limit or eliminate these harsh consequences. A successful criminal defense is a process that starts with immediate jail release. If that happens, a Rochester criminal defense lawyer is in a much better position to resolve felony charges successfully. This successful resolution is usually a plea bargain with a substantial reduction of charges and/or a substantially reduced sentence.
Class A-E Felonies in New York
Class A felonies like first-degree murder are capital crimes in many other states. But New York abolished the death penalty in 2007.
Incidentally, first-degree murder is a premeditated killing. If John shoots Dave during an argument, John is probably guilty of second-degree murder (more on that below). If John argues with Dave, gets a gun out of his truck, and shoots Dave, that’s probably first-degree murder, even if the truck was only a few feet away.
Murder, treason, and other Class A felonies are challenging to resolve. Since they carry a mandatory life sentence, a reduced sentence is impossible to negotiate. Therefore, a Rochester criminal defense lawyer must aggressively challenge the state’s evidence at trial.
Class B felonies include second-degree murder, attempted murder, rape, drug trafficking, and armed robbery. These offenses carry a maximum of twenty-five years in prison.
Class C felonies, which could mean up to ten years in prison, include drug distribution, a slightly lesser form of drug trafficking, and certain kinds of aggravated assault. Many frauds, forgery, and other white-collar crimes are also Class C felonies, mainly depending on the amount of money the defendant allegedly stole.
A Class D felony is usually a lower form of a Class C felony, like a less violent aggravated assault or fraud involving less money. So, a conviction means a maximum of five years in prison.
Class E felonies are almost always enhanced misdemeanors, like a third DUI or a DUI with a collision and aggravated stalking. Therefore, a good Rochester criminal defense lawyer can often convince prosecutors to reduce these charges to misdemeanors, especially if there are extenuating circumstances and/or the defendant has no prior criminal record.
Felony Jail Release
Following a misdemeanor arrest, the sheriff almost always sets a presumptive bail amount. S/he typically does the same thing in Class D and E felonies as well. But presumptive bail is often unavailable in Class A, B, and C felonies. So, a Rochester criminal defense lawyer must appear at a bail reduction hearing, usually about seventy-two hours after arrest.
That’s bad news and good news. The bad news is that these defendants must spend a few nights in jail. The good news is that, at a bail reduction hearing, the judge considers many factors before setting bail, such as the defendant’s:
Ability to pay,
Prior criminal record,
Contacts with the community,
Threats to witnesses and community members,
Current criminal charges, and
Likelihood of flight.
At the presumptive bail, the sheriff usually only considers the defendant’s criminal record and the nature of the offense.
Usually, cash bail or a bail bond is available. Cash bail is like a security deposit. The county refunds most if the defendant pays the total amount and complies with all release conditions. A Bail bond is like an insurance policy. The defendant pays about a 15 percent premium, and if the defendant doesn’t fully comply with release conditions, the bonding company bears the financial risk.
Resolving Felony Charges in Monroe County
Charge reduction plea bargains are often available, even in Class A felonies. Prosecutors usually agree to plea bargains if a procedural issue or the state’s evidence weakens.
Warrantless searches and unlawful arrests are the two most common procedural issues. Officers must have search warrants before seizing weapons, drugs, or other physical evidence. If the case makes it to trial, the burden of proof (beyond any reasonable doubt) is very high. Frequently, eyewitnesses aren’t credible, or there’s insufficient evidence linking the defendant to the crime.
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. We routinely handle matters in Monroe County and nearby jurisdictions.
Although anti-drug laws existed for decades, Richard Nixon coined the phrase “war on drugs” during a 1971 speech. He called illegal drugs “public enemy number one” and vowed to launch interdiction programs to incarcerate offenders and hopefully eradicate the problem.[1] A less-publicized portion of this speech emphasized the “prevention of new addicts and the rehabilitation of those who are addicted.” But that promise didn’t get much attention in the media.
Over fifty years later, the government may have spent as much as $1 trillion to fight a losing war. Drug-related arrests have leveled off in recent years, but drug crime convictions still send hundreds of thousands of people, many of them young Black males, to prison every year.
A dedicated Rochester drug crime lawyer is frequently the only thing standing between a defendant and a lengthy prison sentence. Court-appointed lawyers and public defenders are almost always competent. But there’s no way to tell if they are dedicated to criminal defense or simply drawing a paycheck until another opportunity arises. Drug crimes, especially drug trafficking crimes, are so severe that, as outlined below, you simply cannot leave the matter to chance.
Familiarity with the Legal System
It may seem unbelievable, but many attorneys aren’t familiar with the legal system. They analyze problems and think like lawyers, as taught in law school. Only a Rochester drug crimes lawyer knows how to put this experience to work.
Furthermore, most criminal court cases aren’t settled in the courtroom like on TV. Instead, plea bargains resolve over 95 percent of the criminal cases in Monroe County. Since few law schools teach negotiation skills, many lawyers don’t have these tools.
Additionally, since many plea bargains involve charge reductions, an attorney must be familiar with the elements of and defenses to the charged crime and the elements of and defenses to lesser crimes.
Dedicated to Criminal Defense
We mentioned dedication to criminal defense above. Now, let’s break this important quality down a little more.
Undedicated lawyers often miss critical details. Grant Cooper, who represented Sirhan Sirhan in the later 1960s, was a competent lawyer but not a dedicated criminal defense lawyer. He also represented Shirley Temple when she divorced B-movie regular John Agar. So, Cooper didn’t aggressively attack some flaws in the state’s case, like inconsistencies between the autopsy report and witness statements.
Dedication to drug crime cases is essential as well. Decision makers passed many harsh anti-drug laws in the 1980s as an emotional response to the sudden death of basketball phenom Len Bias. If attorneys lack the passion to stand up against these unfair laws, they often lack the drive to defend drug crime charges successfully.
Solid Legal Advice
We mentioned that plea bargains resolve most criminal charges. It’s not always easy to distinguish between a good and bad offer. Only a good drug crime lawyer can differentiate between them.
Furthermore, criminal convictions usually have collateral consequences, such as immigration effects. These collateral consequences often blindside defendants who don’t have knowledgeable lawyers.
A Partnership that Saves Money
People who go to prison for drug crimes not only lose the jobs they have. They also often cannot find good jobs after prison, partially because of the felony conviction and the public stigma against “drug dealers” and other serious offenders. This financial fallout affects friends and family members as well.
Frequently, a Rochester drug crimes lawyer engineers a deferred disposition plea. After the defendant is discharged from probation, the judge typically dismisses the case, leaving the defendant with no conviction record. The deferred disposition also has some significant cons, taking us back to the solid legal advice only a lawyer can give.
An Investment in Your Future
Similarly, people with felony convictions, especially drug crime convictions, often have difficulty re-integrating into society. Investing money now in a good Rochester criminal defense lawyer makes the rest of a defendant’s life much more livable.
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester drug crimes attorney. Convenient payment plans are available.
Once upon a time, most arsons were economic crimes. People generally started fires for the destruction of property reasons. Today, most arsons are political crimes. Many people start fires out of anger or to make a statement. Yet arson charges and laws are essentially unchanged. In fact, after the 2020 George Floyd protests in Minnesota, a 23-year-old man was fined $12 million and sentenced to four years in prison for his role in the burning of a Minneapolis police station.1
New York’s arson laws are very similar to Minnesota’s arson laws. As outlined below, prosecutors must only prove the defendant deliberately or even recklessly started a fire. Also, as outlined below, even that minimal amount of evidence is often hard to come by. The possible lack of evidence defenses in these infractions is so substantial that a Rochester criminal defense lawyer can usually resolve these cases out of court and on defendant-friendly terms.
Types of Arson Crimes in New York
New York State has five levels of arson crimes.2 The multiple parts of Article 150 make it more difficult to prove these crimes and more straightforward to resolve them. The five types of arson are:
Fifth Degree (Class A Misdemeanor): Intentionally causing an explosion or starting a fire that damages property,
Fourth Degree (Class E Felony): Intentionally causing an explosion or starting a fire that recklessly damages a building or motor vehicle, unless no one other than the defendant had a legal interest in that property,
Third Degree (Class C Felony): Intentionally damaging a motor vehicle or building by causing an explosion or starting a fire, unless “(a) no person other than the defendant had a possessory or proprietary interest in the building or motor vehicle, or if other persons had such interests, all of them consented to the defendant`s conduct, and (b) the defendant`s sole intent was to destroy or damage the building or motor vehicle for a lawful and proper purpose, and (c) the defendant had no reasonable ground to believe that his conduct might endanger the life or safety of another person or damage another building or motor vehicle,”
Second Degree (Class B Felony): Intentionally damaging a motor vehicle or building by starting a fire, if “(a) another person who is not a participant in the crime is present in such building or motor vehicle at the time, and (b) the defendant knows that fact or the circumstances are such as to render the presence of such a person therein a reasonable possibility,” and
First Degree (Class A-1 Felony): Using an incendiary device to start a fire or cause an explosion if someone is seriously injured in the fire and the defendant started the fire “with the expectation or receipt of financial advantage or pecuniary profit.”
All these subsections have several moving parts. The state must prove each sub-element beyond any reasonable doubt. Many of these sub-elements are challenging to prove, especially since the evidence required is so high.
Additionally, prosecutors usually push the envelope when they file charges. For example, if facts support fourth-degree arson charges, the state might file third-degree arson charges. Therefore, it’s easier for a Rochester criminal defense lawyer to reduce these charges during pretrial negotiations, especially if the evidence is weak.
Possible Defenses and Rochester Criminal Defense Lawyers
Alternate cause and shaky scientific evidence are the most common defenses in New York arson criminal cases.
Every level of arson requires prosecutors to prove the defendant deliberately set the fire. Fourth and fifth-degree arson add an “intentional” requirement. Usually, starting a fire means striking a match and lighting something flammable. Absent surveillance video or some other compelling physical evidence, it’s almost impossible to prove the difference between deliberately starting a fire and recklessly starting a fire.
Sometimes, desperate prosecutors turn to shaky scientific evidence, like burn patterns or accelerant residue, to prove the defendant deliberately set the fire. A pattern visible to the naked eye isn’t enough to prove arson, at least not beyond a reasonable doubt.
Other vital factors requiring much more rigorous scientific testing include distortion, melting, color changes, charring, oxidation, and structural collapse. Several variables affect these test results. Such as fire suppression activities, the temperature of the heat source, the material itself, ventilation, and the length of exposure.
There’s a big difference between a criminal arrest and a criminal conviction. Contact the Law Office of Frank Ciardi for a free consultation with an experienced Rochester criminal attorney. Convenient payment plans are available.
