New York Criminal Lawyer Blawg

The Jury Charge & Criminal Defense in New York

Fri, 09 Mar 2012 18:06:38 -0500

As criminal defense attorneys in Westchester, Putnam, Dutchess, Orange and Rockland counties in New York it is very important for all criminal defense trial lawyers to know and understand the specific jury charges to help win the case. The best criminal defense lawyers in New York prepare for the jury charge early as it is the last instruction to the jury from the judge.

What are jury instructions in New York Criminal Defense?

In New York, jury instructions are carefully written to explain to a jury what their duties are when they judge the facts of a case. On jury duty there are also instructions at jury selection and at the start of a trial. All of these instructions are designed to keep the jurors informed as to their role and what is expected out of every juror as they sit on a case. The most important jury instructions are the last instructions the jury will hear before they deliberate and determine if an accused is guilty. This part of the process is also call the "jury charge".

General Instructions

In every case there are basis general instructions the jury will hear including the following:

1. The Definition of Reasonable Doubt -- The government's burden of proof.
2. Presumption of Innocence -- The accused is innocent until proven guilty.
3. Witness Credibility
4. The accused is not required to testify
5. Interested Witnesses
6. The types of evidence offered -- Direct vs. Circumstantial

Crime Specific Instructions

The additional and most important instructions to an accused are the ones that pertain to the case. Such as the instruction related to the crime charged. For example, robbery, larceny, assault, possession/sale of drugs, DWI, possession of a weapon, arson and any other crime under the New York Penal Law have a jury instruction. The instruction is a description of what needs to be proven to sustain the charge.

Instructions as to Certain Defenses

Some defenses an accused may want to take advantage of also have a charge such as self defense, entrapment, duress, alibi, intoxication. The top criminal defense attorneys will review any necessary instruction with their clients to determine what needs to be proven at trial.

Evidence Instructions

These instructions have to do with certain aspects of the case that deal with the prosecution such as identification of witnesses or the defendant, voluntariness of statements, missing witnesses, police officers as witnesses, character witnesses, co-defendant's evidence and flight. These instructions are important since they can be used in the legal strategy of the case to show the accused is not guilty.

The Charge Conference

After the evidence is finished being presented to the jury the judge, district attorney and the defense attorney participate in a jury charge conference where they agree or argue about the proper charges to the jury. Many cases are won or lost in the jury charge conference and often rookie defense attorneys will overlook this important step in the process.

One the charges are set the judge will read them to the jury. Afterwards the jury is allowed to deliberate on guilt or innocence.

The top criminal defense attorneys always pay particular attention to the jury instructions and make that process and important aspect of the case.

Self Defense & Justification - Criminal Defense

Sat, 18 Feb 2012 11:50:12 -0500

Assault -- Criminal Defense

In New York State there are three levels of the crime of Assault. Assault in the first and second degree are felonies and assault in the third degree is a misdemeanor. Commonly the same defense for all levels of assault will be used during plea negotiations or a trial. The defense of Self defense or Justification must be explored by the criminal defense attorney.

In Westchester County the criminal defense lawyer has an opportunity to speak with the District Attorney and Judge to determine if the defense of self defense will be useful. In the criminal defense of matter in Orange county, Rockland, Dutchess, Putnam and in New York City courts the criminal defense attorney must also use all opportunity's to advance any self defense argument. The best criminal defense lawyers will obtain as many facts as possible to strengthen the argument of self defense.

Justification

In New York State the criminal defense of "Self Defense" is also known as Justification. The criminal defense attorney must raise the defense of Justification and the District Attorney is required to prove beyond a reasonable doubt that the accused was not justified.

New York Self Defense Law

In New York State the law of self defense requires that a person may use physical force upon another individual when, and to the extent that, he reasonably believes it to be necessary to defend himself (or someone else) from what he reasonably believes to be the use or imminent use of unlawful physical force by such individual.

The determination of whether a person reasonably believes physical force to be necessary to defend himself (or someone else) from what he reasonably believes to be the use or imminent use of physical force by another individual requires the application of a two part test.

First, the accused must have actually believed that the individual was using or about to use physical force against him (someone else) and that the defendant's own use of physical force was necessary to defend himself (or someone else) from it and

Second, a "reasonable person" in the defendant's position, knowing what the defendant knew and being in the same circumstances, would have those same beliefs. It does not matter that the accused was or may have been mistaken in his/her belief, provided that such belief was both honest and reasonable.

Self Defense is not Justified When:

1. The accused was the initial aggressor
2. The individuals conduct was provoked by the accused with intent to cause physical injury
3. The accused is not justified if the physical force was the product of a combat by agreement
4. A person is not authorized to use physical force to resist an arrest.

Self Defense

In many circumstances an accused had to defend themselves against aggression from another person. Sometimes the police do not do an adequate job determining (or sometimes can not determine) who was the initial aggressor and responsible for the assault. The police will simply arrest the person who has the least amount of injuries or the person who didn't make it to the police department first to report the assault.

The best criminal defense for an assault case is to carefully set forth a good self defense argument and challenge the elements of the assault as well as the injury.

If you or a loved one is charged with assault they should speak with a criminal defense attorney immediately. Review of the evidence is the most important aspect of the case.

For example, in the Village of Pleasantville, New York criminal defense attorney Andrew Proto had an assault charge dismissed after it was determined that the accused was not the initial aggressor. Fortunate for the accused surveillance material cleared the accused form the assault after reviewed by Andrew Proto.

New York Criminal Hearings and Criminal Defense

Sat, 11 Feb 2012 15:28:08 -0500

The Pre-trial Hearing

In New York State criminal defense, the criminal defense lawyer and the client are entitled to pre trial hearings to resolve issues of law that a jury would not consider. Westchester county criminal defense lawyers use hearing names to ask for the specific hearing. This is also common in other courts in New York State such as New York City, Putnam, Dutchess, Rockland and Orange Counties. It is important for the client to understand what hearings are being requested and for what reason. This criminal defense blog reviews the common hearing names and substance of the pre trial hearings.

Many of the hearings listed below start as a written motion by defense counsel but in order for the court to make a decision live testimony is needed from witnesses.

The pre trial hearings listed blow refer to court cases that established the rule of law the hearing controls.

Types of Hearings

1. Clayton Hearing -- A hearing requested by a criminal defense lawyer in New York to seek to have the case dismissed in the interest of justice. In Westchester County the criminal defense lawyer will usually make a motion on paper in advance of this hearing.

2. Competency hearing -- A hearing to determine if the accused understands the charges, proceedings and can assist in his/her own defense.

3. Darden Hearing -- This hearing involves informants and whether or not the identity of the informants should be disclosed to the defense.

4. Dunaway Hearing -- Determines if a statement obtained after an accused arrest should be suppressed because the accused was arrested without probable cause.

5. Forman Hearing -- Often an Order of Protection is issued ex parte (without the accused presence in court) the accused is entitled to a Forman hearing to determine if the ex parte Order of Protection should be continued.

6. Frye Hearing -- If a scientific procedure was used during the course of an investigation a Frye hearing may be necessary to determine if the scientific procedures are accepted and reliable to be admissible at trial.

7. Huntley Hearing -- The issue that needs to be determined is if the accused's statement to the police was voluntarily made to be admissible at trial.

8. Ingle Hearing -- This hearing is used to determine if the stop of a vehicle by police officers was legal. This type of hearing is common in DWI cases where the accused is stop at a road block or sobriety check point.

9. Mapp Hearing -- The court must determine if physical evidence should be suppressed. Physical evidence includes drugs or a gun. The hearing could also address if the police had consent to search the area or property of the accused.

10. Payton Hearing -- The Court must determine if there was an emergency circumstance to justify an arrest in the accused's home without a warrant.

11. Preliminary Hearing/Felony Hearing -- The court must determine if the accused should be held in jail and if there is reasonable cause to believe the defendant committed a felony.

12. VOP Hearing -- Although not a Pretrial Hearing this is a Violation of Probation Hearing conducted by a judge to determine if the person on probation violated the terms of the probation sentence.

13. Restitution Hearing -- This hearing determines if restitution is owed to the complaintant and how much restution is due.

14. Rodriguez Hearing -- This is a hearing to determine if the accused and the witness knew each other for identification purposes.

15. Sandoval Hearing -- A pre trial hearing to determine what can be used at trial to impeach the defendant.

16. SORA Hearing -- This hearing is held to determine what sex offender level a convicted person will have.

17. Ventimiglia Hearing -- Usually conducted at the same time as a Sandoval hearing this hearing determines if the prosecution can use any uncharged crimes of the defendant during the government's case.

18. Wade Hearing -- Determines the admissibility of an identification of the defendant by a witness. Most commonly a photo array or show up identification.

It is important for the criminal defense attorney to explain these hearings to an accused. Attorneys will commonly use these hearing names but often the accused does not know what is required at the hearing. The top criminal defense attorneys will explain to their client the options for proceeding, the available hearings and a legal strategy for the defense.

Questions

If you or a loved one has a question about the legal process, pre trial hearings or the criminal defense of a matter it is important to consult with a criminal defense attorney as soon as possible to protect your rights.

The New York Criminal Defense of Entrapment

Sat, 04 Feb 2012 09:15:33 -0500

Criminal Defense Attorneys

As Westchester County, New York criminal defense attorneys our office works in the surrounding counties of Putnam, Rockland, Orange and Dutchess Counties as criminal defense lawyers. We will also appear in the courts of the Bronx and New York City. A common question the office receives involves the criminal defense of entrapment. This should provide a brief understanding of the criminal defense of entrapment in New York State.

Entrapment

Entrapment is a criminal defense in New York used by criminal defense attorneys at trial or during plea bargain negotiations. The defense of entrapment is established where the defendant engaged in criminal conduct after being induced or encouraged to do so by law enforcement who was trying to obtain evidence against that defendant.

This is most common in drug cases both possession and sale of a controlled substance.

The methods used by law enforcement must have been such as to create a substantial risk that the crime would have been committed by a person NOT otherwise disposed to commit the crime.

Pursuant to New York Penal Law section 40.05 inducement or encouragement to commit the crime means "active inducement or encouragement". Conduct by police officers merely affording an opportunity to commit the crime is not entrapment.

Burden of Proof

In order to prove entrapment the burden of proof is on the defendant and pursuant to the penal law section 40.05 must be shown by a preponderance of the evidence. The defendant's state of mind and the police conduct are all relevant to prove entrapment.

Dangers of the Entrapment Defense

The primary danger of the entrapment defense is that the defendant must admit the they committed the crime and then argue that although they committed the crime they were not disposed to commit the crime with out active inducement or encouragement from law enforcement.

Criminal Defense Attorney Defense Preparation

In order to prepare a defense such as entrapment where the accused has to prove the defense the criminal defense attorney needs to thoroughly prepare before alleging the defense. This includes interviewing the accused, witnesses and reviewing the prosecutions file.

The top criminal defense attorneys in New York will not put forth a defense of entrapment unless there is a strong possibility for success since the defense itself does involve the accused admitting to the crime. Since each case is different special care must be taken with each case.

New York Drug Crimes - Possession and Sale of a Controlled Substance

Sat, 14 Jan 2012 14:50:17 -0500

Criminal Possession and Criminal Sale of a Controlled Substance is a wide area of the law in New York State. Counties such as Westchester County, Rockland, Orange and Putnam have special task forces devoted to the investigation and arrest on various types of drug related charges. Aggressively defending a criminal drug charge in New York State is very important because the penalties are very severe.

To better understand the drug laws in New York State this Blog will review to types of charges that are most common in New York. Criminal Possession of a Controlled Substance and Criminal Sale of a Controlled Substance.

Criminal Possession of a Controlled Substance

Criminal Possession of a Controlled Substance (CPCS) is a crime. The only misdemeanor level crime is that of CPCS in the 7th degree. The remainder of the levels of this crime are all felonies.

In order to prove the crime of Criminal Possession of a Controlled Substance in any degree the government needs to prove "beyond a reasonable doubt" that the person charged knowingly and unlawfully possessed a controlled substance.

A Controlled Substance is any substance prohibited by law such as cocaine, marijuana, heroin etc.

Possess means to have physical possession or otherwise exercise dominion or control over the controlled substance.

A person knowingly possesses a controlled substance when that person is aware that he or she is in possession of the controlled substance.

Unlawfully means that the person had no legal right to possess that controlled substance.

In order to be found guilt of this charge of Criminal Possession of a Controlled Substance all the aforementioned elements must be proven.

Criminal Sale of a Controlled Substance

Criminal Sale of a Controlled Substance in all degrees are felonies.

In order to prove Criminal Sale of a Controlled Substance (CSCS) the same elements listed above but includes the additional element of "Sell" must be proven "beyond a reasonable doubt".

Sell is defined as to sell, exchange, give or dispose of to another. Sell also includes an offer or agreement to sell even of a sale does not occur, provided that, at the time of the offer or agreement, the person has the intent and ability to make the sale.

The Defense of CPCS and CSCS

To defend these charges the top drug criminal defense attorneys will set to attack each element of the charge. Possession, Intent and knowledge are all common areas to defend these charges. Further, the various suppression issues are attacked (search and seizure) the laboratory reports used and any speedy trial delays.

The top criminal defense attorneys will hold the government to their burden of proof to either have the case dismissed or negotiate a favorable plea bargain.

If you or a loved on has been charged with any drug related crime contact the law firm of Riebling, Proto & Sachs for a free consultation.

I-684 DWI and Traffic Tickets in Westchester County

Sun, 08 Jan 2012 08:52:17 -0500

There have been several questions about I-684 in Westchester County, New York and what appears to be an increase in DWI arrests and an increase in Traffic Tickets issued most notably for speeding even at fairly low speeds. At Riebling, Proto & Sachs as criminal defense attorneys in Westchester County we are very familiar with I-684 and the local courts.

I-684

I-684 is a limited access major north/south highway in Westchester County, New York and Greenwich, Connecticut (1.5 miles). The total length of I-684 is 28 miles and at the southern end connects with the Hutchinson River Parkway and the northern end connects with New York Route 22. I-684 for the most part runs alongside New York Route 22. At Exit 6 there is a major junction with the Saw Mill River Parkway that also runs North/South in Westchester County. Located at Exit 9 is the major junction for I-84 west (Newburgh) and east (Danbury, CT). Lastly, I-287 connects at the southern end of I-684, west towards the Tappen Zee Bridge and east to Rye. The design of the road is commuter based it consists of three lanes in each direction and is relatively flat and straight.

Police Activity on I-684

The entire length of I-684 is patrolled by the New York State Police including the 1.5 miles in Connecticut. They are responsible for everything from assisting with broken down vehicles, traffic accidents, issuing traffic tickets, such as speeding, and DWI enforcement.

The New York State Police will usually position themselves at the center of the highway in the U-turn cut outs for DWI and traffic ticket enforcement. They will also regularly patrol the two rest stops on I-684, southbound the Town of Bedford rest stop and the northbound rest stop (Brewster).

Rarely will I-684 be patrolled by the Westchester County police as they patrol the Saw Mill River Parkway and the Hutchinson River Parkway. The local police departments patrol the secondary Town and Village Roads.

All New York State Police traffic tickets are issued on two pages of paper the first page is the Uniform Traffic Ticket (UTT) and the second is the supporting deposition. The last letters of the UTT number should be "SP" the State Police designation.

The I-684 Courts

Depending where you are on I-684 this will dictate what local court you may need to appear in to answer a DWI or Traffic Ticket. From the South at the Hutchinson River Parkway moving north the local courts include North Castle (Armonk, NY), Mount Kisco, Bedford, Somers, North Salem/South Salem, Brewster and Southeast. The busiest Courts include North Castle, Bedford, Somers and Southeast. The Town of Bedford and Southeast alone have hundreds of traffic tickets per month and are among the highest revenue generating courts in New York State.

In Westchester County any State Trooper Traffic Ticket is prosecuted by the local Town or Village prosecutor while the Westchester County District Attorneys Office will prosecute DWI and other misdemeanor cases (The District Attorney's local office is in Mount Kisco, New York next to Northern Westchester Hospital). The Town of Southeast has the same procedure but is located in Putnam County, New York.

DWI and Traffic Ticket Defense in Westchester County, New York

The best defense to any traffic ticket or DWI charge is to start early. It is also important for the criminal defense attorney to gather as much information as possible to aid in the defense.

The firm of Riebling, Proto & Sachs regularly appears in all the Courts along I-684. We are also former prosecutors in those Courts. DWI and Traffic Tickets need to be aggressively defended. Call our office for a free consultation.

DWI Defense in New York State - Jury Instructions

Thu, 29 Dec 2011 09:22:39 -0500

The crime of Driving While Intoxicated (DWI) falls under the New York State Vehicle and Traffic Law. In defending a DWI charge in New York State the best criminal defense lawyers will explain to their clients what proof is necessary for a conviction. The criminal defense of a DWI charge in New York State usually focuses on what proof the District Attorney has against the accused. In Westchester, Putnam, Rockland, Dutchess and Orange Counties the criminal defense attorney has an early opportunity to review the proof.

The Charge of DWI

There are several charges under the DWI laws in New York State. Those charges include DWI based upon a BAC reading of .08 or greater (VTL 1192.2), DWI per se based upon the officers observations (VTL1192.3), Aggravated DWI with a BAC of .18 or above (VTL 1192 (2-a)(a)), DWI with a child in the car (VTL 1192 (2-a)(b)) or even DWAI by drugs (VTL 1192.4). These charges can be either felonies or misdemeanors depending on the accused history and/or facts of the case.

Understanding the BAC .08 DWI charge (VTL 1192.2)

To understand DWI in New York State it is best to review the pattern jury instructions that a judge must follow to find an accused guilty of the charge. The top DWI lawyers or litigation attorneys in general know that these instructions are the most important aspect of any case.

The pattern jury instructions are also helpful for a non-attorney to clearly understand the issues since they were written for non-attorneys to clearly understand the charge in a jury trial situation. Even if there is no jury these instructions will be used for the judge to determine guilt.

DWI Defense Strategy

Prior to trial, the jury instructions must be consulted by the DWI attorney to determine if the government can prove the charges against an accused. All proof by the government must be "Beyond a Reasonable Doubt".

DWI - Misdemeanor/Felony BAC above .08 Jury Instructions

"Under our law, no person shall operate a motor vehicle while such person has a .08 of one per centum or more by weight of alcohol in the person's blood as shown by a chemical analysis of such person's blood, breath, urine or saliva"

This is what the government needs to prove. The instructions further define the crime as follows:

"Motor Vehicle means every vehicle operated or driven upon a public highway (private road open to motor vehicle traffic or a parking lot) which is propelled by any power other than muscular power"

"Operate a motor vehicle when such person is sitting behind the wheel of a motor vehicle for the purpose of placing the vehicle in motion and when the motor vehicle is moving or even if it is not moving the engine is running"

BAC test "In this case the device used to measure blood alcohol content was ____. That device device is a generally accepted instrument for determining blood alcohol content". "You must consider the qualifications and reliability of the person who gave the test , the lapse of time between the operation of the motor vehicle and the giving of the test, whether the device used was in good working order at the time the test was administrated and whether the test was properly given."

When charged with any type of DWI crime it is essential to know the elements of the crimes (as noted above) and the proper defenses. An aggressive strategy is usually the best criminal defense.

Robbery in New York State and the Defense

Fri, 23 Dec 2011 13:44:03 -0500

Under New York Law all robberies are classified as felonies. The prosecution takes robbery cases seriously because of the violent nature of the crime. When one is charged with robbery it is important to have a criminal defense attorney defend the case as soon as possible.

In Westchester County, Putnam, Rockland or Dutchess counties often family members are the first to hear of an arrest or investigation for Robbery. It is at that point a consultation with a criminal defense attorney to defend the robbery charge is necessary.

Classes of Robbery in New York State

Robbery under Penal Law section 160.00 is defined as forcible stealing. A person forcibly steals property and commits robbery when in the course of committing a larceny uses or threatens the immediate use of physical force.

Robbery in the third degree is a class "D" felony and is charged when a person forcibly steals property.

Robbery in the second degree is a class "C" felony and includes forcibly stealing property AND is aided by another, physical injury is caused, a firearm is displayed or carjacking takes place. Robbery in the second degree is usually the most common type of robbery charged.

Robbery in the first degree is a class "B" felony and included forcibly stealing property AND there is serious injury to the nonparticipant, use of a deadly weapon, uses or threatens to use a dangerous instrument, displays a firearm.

Defense of a Robbery Arrest in New York State

The defense of a robbery charge is very complex. Often there are multiple co-defendants and/or weapons used and/or various injuries. The first step in the defense is to determine what exactly happened. The second step is to investigate what statements any of the participants made to the police. Third, the criminal defense attorney should challenge any identifications made of the accused. This is the foundation of the defense of any robbery charge in New York State.

Legal Consultation for Robbery Charge

The most important aspect to the defense of a robbery case is to speak with your lawyer early AND often. An accused will need to speak with their criminal defense attorney on several occasions until a legal defense strategy can be determined. Lawyer contact is very important.

Punishment for a Robbery Conviction

There is a wide range of sentences for a person charged with robbery but because all robbery charges are felonies State prison can be a consequence. The best criminal defense attorneys will clearly explain the various sentences which may or may not include State prison.

Burglary -- New York State

Thu, 15 Dec 2011 18:22:23 -0500

New York law has very strict Burglary laws. It is important for the criminal defense lawyer to understand the meaning of the crime and recognize potential defenses.

The facts are extremely important as counties in New York State treat burglary seriously. A charge of burglary in Westchester County, Putnam, Rockland and Orange County is vigorously prosecuted and the criminal defense attorney needs to be aggressive in the defense.

Burglary

Burglary in the Third degree -- A person must knowingly enter or remain unlawfully in a building with intent to commit a crime therein. A Class "D" Felony.

Burglary in the second degree -- Includes the elements of burglary in the third degree and involves an explosive or deadly weapon, causes physical injury to another person, displays a dangerous instrument or displays a firearm. A Class "C" Felony

Burglary in the first degree - Includes burglary in the second degree but the burglary occurs in a dwelling. A dwelling is a building which is usually occupied by a person lodging therein at night. A class "B" Felony

The defense of a burglary case is very fact specific but also the prosecution must prove the accused "knowingly" enters or remain unlawfully with the "intent" to commit a crime therein. These can be difficult elements for the prosecution to prove and the top criminal defense attorneys need to review the facts of the case to determine the weaknesses for the prosecution.

If you have any questions about the crime of burglary or the defense contact a criminal defense lawyer to explain the law and the options regarding how the case will proceed.

The Larceny Case in New York State

Fri, 09 Dec 2011 10:17:59 -0500

In New York State criminal defense law the criminal defense attorney needs to understand all areas of the Larceny Laws. Larceny falls under Article 155 of the New York State Penal Law and is broken down into several areas. This blog can not review every aspect of the New York State Larceny Laws but will provide a basic understanding. For an in depth review of the laws you should contact an experienced criminal defense attorney.

Larceny

Under PL 155.05 larceny is defined "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof".

Larceny can include larceny by trick, embezzlement, false pretenses, issuing a bad check, false promise, extortion or even larceny over lost property. The prosecution will use one theory or several to convict a person under the larceny statute. The top criminal defense attorneys need to investigate the charge and potential prosecution theory or legal strategies to defend the case.

Types of Larceny

In determining the proper charge the police or District Attorney's Office will review the entire case but usually the charge will directly relate to the amount of money or value of property stolen and/or the method of theft.

Grand Larceny in the Fourth Degree -- Value of property over $1,000.00 or the property is a credit card, debit card, public record, secret scientific material, obtained by extortion etc. Grand larceny in the fourth degree is an "E" felony.

Grand Larceny in the Third Degree -- Value of property over $3,0000.00 or involves theft of an ATM machine or its contents. Grand larceny in the third degree is a "D" felony.

Grand Larceny in the Second Degree -- Value of property over $50,000.00 this is a "C" felony.

Grand Larceny in the First Degree -- Value of property over one million dollars. This is a "B" felony.

Petit Larceny -- "A person is guilty of petit larceny when he steals property". This is a class "A" misdemeanor. Petit larceny usually encompasses shoplifting types of crimes.

If you are charged with any type of Larceny crime it is very important to contact a criminal defense attorney as the prosecution needs to supply necessary paperwork in a timely manner to prove the crime and all defenses need to be investigated early.

New York State Vehicle and Traffic Law Amendments

Mon, 28 Nov 2011 09:10:52 -0500

Vehicle and Traffic Law Amendments

The top criminal defense lawyers will always keep informed of new developments in New York Law. It is also important to determine if the law is retroactive and when the new law or amendment in the law goes into effect.

Recently NYS Amended the Following:

1. Driver's License Suspension after a Drug Conviction -- In 1993 NYS passed a law requiring a 6 month suspension of a motorists New York State Driver's License or a 6 month delay in eligibility for a driver's license if convicted of a misdemeanor or felony drug offense, including juvenile or youthful offender adjudications. This is now a permanent law.

It is important for the motorist to know that the criminal defense attorney can with good cause ask for a waiver of this suspension period from the court.

2. Use of a Cell Phone While Driving -- Use of a cell phone can now act as a primary violation of the New York State Vehicle and Traffic Law that can independently justify a traffic stop. Previously, a motorist could only be ticketed for the offense when stopped for committing another violation. The offense also carries with it points. This is effective July 12, 2011

3. School Bus Drivers - List of Disqualifying Criminal Convictions has been established to prohibit a person from being a school bus driver VTL 509-cc(4). Effective February 12, 2012.

4. Due Care to Avoid Hazard Vehicles -- All motorists are now required to exercise due care to avoid colliding with a hazard vehicle. This includes moving from the lane nearest the hazard vehicle. Effective August 17, 2011.

This is the one law that has been advertised on major highways. For example on route 684 in Westchester County the law has been posted for months to alert motorists to move from the lane adjacent to the emergency or hazard vehicles.

For any questions about the New York State Vehicle and Traffic Law or changes to the law contact a criminal defense attorney.

The Motion to Dismiss a Criminal Case in New York

Fri, 18 Nov 2011 13:21:11 -0500

The Criminal Charge and Defense

Under New York criminal law the criminal defense attorney has the right to file a written motion to dismiss any criminal charges. The motion can also contain a demand for other relief for the accused but the main goal of the motion is a dismissal of the case.

Recently in Dutchess county in the Town of Kent a motorist was charged with DWI and in Westchester County a motorist was charged with DWI in Mount Vernon. A motion to dismiss can be made in any court for these types of cases or for other offenses such as a drug charge, sex offense, white collar crime. The top criminal defense attorneys prepare for the motion to dismiss as soon as possible.

The Omnibus Motion

The Omnibus Motion is a motion that must be filed within 45 days of the accused's arraignment. The Omnibus Motion is a motion to dismiss and for all other relief the accused is seeking. The Omnibus Motion usually includes the following:

1. Dismissal of the case
2. Motion for Discovery
3. Hearings on Statements made by the accused
4. Identification evidence of the accused
5. Suppression of evidence
6. Review of Grand Jury minutes
7. Suppression of the accused's bad acts and prior convictions
8. Sever the charges
9. Server co-defendants
10. Change of venue

The examples above are the primary examples in a criminal defense motion.

Sufficiency of the Motion

The criminal defense attorney must be careful to be sure the Omnibus Motion is sufficient. The motion usually consists of a statement of facts by the attorney and a memorandum of law by the attorney but equally important is a sworn statement by the accused regarding the case and the issues to be resolved. The criminal defense attorney will interview the client and write the statement for the client's signature.

The statement is important because it will be a first hand sworn accounting of what took place. For example in a drug case the accused has first hand information on the police's actions.

The Judge's Decision

The judge will usually issue a written decision on each issue raised in the defense attorney's motion to dismiss including dismissal of the entire case. This decision will provide information about how the case will proceed.

Drug Arrests in Westchester, Rockland and Putnam Counties

Fri, 11 Nov 2011 16:54:46 -0500

Drug Arrests

Recently there has been several drug related arrests in Westchester, Rockland and Putnam Counties. These arrests were the result of long term investigations or by specialized street crimes units of the local police departments.

On November 10, 2011, 12 people were arrested for selling drugs in Rockland County. The basis of the arrests was a six month grand jury investigation for the sale of heroin, prescription drugs and cocaine. These raids produce large sweeping arrests of multiple people.

Also, in Putnam County a three month investigation led to the arrest of a Dutchess County man for felony sale of cocaine and MDMA. The felony charges included criminal sale and criminal possession of a controlled substance.

Westchester County has its own task forces that result in sweeping drug arrests. In Greenbugh, White Plains, Yonkers or Mount Vernon multiple drug arrests are the focus of the police activity.

When these arrests are made it is important to contact a top criminal defense attorney since the defense needs to begin soon after the arrest and is often complex.

The Defense of the Multiple Person Drug Arrest.

There are several main issues for the criminal defense attorney when attacking the prosecutions case they include:

1. Bail applications to immediately have the accused released from jail. Usually the local justice courts will set high bail amounts and make it difficult to obtain release. Those bail amounts should be appealed.

2. Review statements by the accused or co-defendants. NO ONE SHOULD EVER make any statements to the police unless they are asking for a lawyer.

3. A detailed interview of the client needs to be obtained. The best criminal defense lawyers will get every single detail to help prepare the case.

4. The defense lawyer needs to get a copy of the lab report as soon as possible. The lab report will identify the drug and include weight. Weight governs if the charge is a felony or a misdemeanor.

5. Should a felony hearing be requested? This decision is on an individual case by case basis. In requesting a felony hearing the attorney needs to determine if it will have the client released from jail, provide valuable discovery or result in a dismissal or reduction of the charge.

6. The criminal defense attorney needs to know if any of the co-defendant's have made statements to the police and what impact that has had on the client.

7. Lastly, the criminal defense lawyer needs to defend drug charges by attacking the prosecutions case, meeting with the client and preparing the case. It is shocking how many attorneys never speak with their client, visit them at the jail or discuss legal strategy. The top criminal defense attorney always involves the client in their case.

Drug Raids & Sealed Indictments

The police and prosecution have several methods to arrest people for drug possession and sale. It is important to defend the case aggressively to determine if the police have acted properly and have sufficient information to arrest

Why does it take so long to investigate drug cases?

The simple answer is that usually the police can't tell if there is drug activity and spend an enormousness amount of time watching people they suspect. This should be the focus of any attack on the prosecutions case since probable cause is always an issue in these types of case.

Police Stop, Investigation and Search of an Automobile in New York

Sat, 05 Nov 2011 11:46:57 -0500

The Automobile Stop

The automobile stop is one of the most common type of police encounters. In Westchester, Orange, Rockland and Putnam Counties the local justice courts a very busy because of the several police departments on the roads including county police, the state police and local law enforcement. A proper review of the stop, traffic ticket and subsequent arrest is important to any criminal defense. In White Plains, New York the city police routinely have day time check points to inspect, seat belts, cell phone use, insurance and registration.

Any time a basic stop is conducted or an arrest it is important to contact a criminal defense attorney.

The Stop of a Vehicle by Police Officers

The police sometimes will use a traffic infraction as a purported justification to stop a vehicle in order to search the vehicle or question the occupants about an unrelated serious crime. Because the police have no reason to stop the vehicle for a serious crime the police will use a traffic infraction as a "Pretext" to stop the vehicle, search the vehicle and question the occupants.

The Pretext Stop

The best way to describe a "Pretext" stop of a vehicle is a legal stop carried out for an illegal purpose. Pretext stops have been criticized as an unreasonable and arbitrary exercise of discretionary police power.

Usually if the police a observe a suspicious vehicle they will follow that vehicle for a lengthy period of time and once a traffic infraction is committed the vehicle will be stopped to investigate the more serious crime. Often no traffic ticket is written for the stop but an arrest is made for the more serious crime.

Under both the federal and state constitutions the police may use a a traffic stop as a pretext to search a vehicle for evidence of another offense. Whren v U.S., 517 US 806; People v Robinson, 97 NY2d 341.

The Criminal Defense of a Pretext Stop

The top criminal defense lawyers know that although the police can use a pretext stop the facts surrounding the stop are very important to the defense. Usually the stop will be deemed legal but the attack is with the other police actions or behavior. Since this is complex it can often be overlooked. Always speak to a criminal defense attorney in New York about the facts surrounding the stop, the police's actions and your actions for the criminal defense attorney to properly review the case.

Power Tool and Design Defect Trial in New York City

Sat, 29 Oct 2011 10:17:17 -0500

Attorney Stephen Riebling

In early 2011, Stephen Riebling, Esq. successfully defended Milwaukee Electric Tool Corp. during a three week jury trial in New York County Supreme Court. As a trial attorney Mr. Riebling also practices in the areas of criminal defense, divorce and family law.

Due to Mr. Riebling's successful defense of power tool companies Milwaukee Electric Tool Corp. hired the law firm of Riebling, Proto & Sachs, LLP in White Plains, New York to defend this action.

Nature of Plaintiff's Claims

On November 15, 2003 the Plaintiff an attorney in his 40s, amputated his left hand while he was operating a sliding miter saw at his Long Island home. The plaintiff sued Milwaukee Tool Corp. alleging that the company was negligent in the design of the saw and failed to provide proper warnings for the saw's use.

The plaintiff claimed that his left hand slid off the saw's pistol grip and into the path of the saw's blade. Plaintiff further claimed that the saw's slide lock malfunctioned and because the pistol grip was an open grip rather than a closed grip there was an increased likelihood of injury. The plaintiff further argued that there were improper warnings regarding the use of the saw.

Milwaukee Electric Tool Defense

Attorney Stephen Riebling defended the plaintiff's allegations by arguing that the saw was in fact properly designed and that its pistol grip, slide lock and warning labels were proper. Mr. Riebling focused on the plaintiff failure to properly use the saw. During the preparation of the case for trial Mr. Riebling discovered various inconsistencies with the plaintiff's claims of how the accident took place and further argued to the jury that the plaintiff's version of events was inaccurate.

Plaintiff's Demand and Result

The plaintiff sought 7.5 million dollars in damages from the New York County Jury. The jury deliberated for 90 minutes and returned a defense verdict finding that the saw was not defectively designed.