New York Criminal Defense Blog

Under CPL 180.85 after arraignment of a defendant on a felony complaint, other then for the following charges:

• PL 125.10 – Criminally Negligent Homicide
• PL 125.15 – Manslaughter in the Second Degree
• PL 125.20 – Manslaughter in the First Degree
• PL 125.25 – Murder in the Second Degree
• PL 125.26 – Aggravated Murder
• PL 125.27 – Murder in the First Degree

Either the Defendant, the People, or the Court (sua sponte) may move for a Motion Terminating the Prosecution on consent of ALL parties. The counts of the Felony Complaint can not have been presented to the Grand Jury, or disposed of via a Superior Court Information (“SCI”), or reduced to Misdemeanor counts. The Motion must be in writing, and can not be done earlier then 12 months after the arraignment on the felony complaint. The Parties must be given at least 30 days notice of the return date.

The People  then have an opportunity to file Opposition to the Motion before the return date. If the People do not file Opposition papers, then they are deemed to consent to the termination. If the People do file Opposition in the required time frame then the Court may defer disposition of such a Motion for 45 days to allow the People to take action on the felony complaint. If still no action is taken during the 45 day period then the Court will enter an order terminating the prosecution. However if the People on at least 5 days written notice to the Defendant, show good cause for their failure to take action the Court may deny the motion.

Under a CPL 180.85 Motion, the defendant does not need to appear in Court on the return date, and the time during which the Motion is pending is excludable for Speedy Trial purposes. Termination under this section does not preclude the People from subsequently indicting the Defendant. In the event that the Motion is granted, prior to the sealing of the charges, if the People indicate their intention to seek an indictment the Court is required to stay the sealing under CPL 160.50 for up to thirty days.

Sample CPL 180.85 Notice of Motion

Sample Opposition to CPL 180.85 Motion

Todd A. Spodek, Esq. is a criminal defense attorney with Storobin & Spodek, LLP.

In certain counties a defense attorney can make an oral application to the Court to have a case dismissed pursuant to an expiration of the applicable speedy trial period under CPL 30.30. Although the People are entitled to a written motion addressing this issue it is common practice that in cases in which the District Attorney can quickly glance at a file, and see that the case has passed the appropriate speedy trial period, the People will “concede 30.30″ and waive their requirement to a written motion. In return for this concession, the People will often request that a stay of sealing for 30 days. This allows the District Attorney to review the pertinent dates outside of the often busy Courtroom  and if there was an error to re-argue the motion within 30 days.

Todd A. Spodek is a criminal defense attorney with Storobin & Spodek, LLP.

There are three main types of evidence that the defense seeks to suppress in criminal actions. They are:

1. physical evidence
2. statements
3. identification

The underlying reasoning for the suppression of the evidence, is that the government obtained it in violation of the defendants constitutional rights.  The Fourth Amendment to the United States Constitution protects individuals from unlawful search and seizures. In the landmark case Mapp v. Ohio, the Supreme Court held that the Fourth Amendment applies to the States by way of the Due Process clause of the Fourteenth Amendment.  Basically, that the State and its agents are prohibited from conducting illegal search and seizures. This is what is known as the “exclusionary rule.” The goal of the defense is to prevent the prosecution from introducing the evidence at trial . If the suppression is granted at the hearing, then the Prosecutors case is greatly weakened and may ultimately result in all charges being dropped or a more favorable plea bargain being offered.

The three types of hearing that are held for the above are:

1. Mapp Hearing – Illegally obtained physical evidence
2. Huntley Hearing- Illegally obtained statements
3. Wade Hearing - Illegally obtained identification

PHYSICAL EVIDENCE

The evidence obtained usually comes from a warrant-less search. This is typically of the defendant, the defendants premises, or the defendants car. The Police need to have adequate justification for their intrusion. There are four levels of Police Intrusion, and each level has a corresponding justification.

If the Police did not have the required justification for the intrusion, and seizure of the property then any property seized needs to be suppressed.

There are exceptions to the above four levels of justification.

1. Attenuation – This is when the physical evidence seized was recovered not in direct response to the illegal police action but by the defendants own volition. Basically, that the defendant would have taken said action, and the Police would have recovered the evidence, regardless of the illegal Police action.
2. Emergency Doctrine – This is when the Police have reasonable grounds to believe that an emergency exists and they need to take immediate action to protect the public.
3. Criminal conduct after illegal stop/seizure – This is when the defendants commits a new act, after the illegal police action

The search of a person or premises without a warrant is only allowed in three circumstances:

1. Search incident to arrest – All personal property at hand.
2. On consent – The defendant, or someone else with the appropriate authority agrees to the search.
3. Exigent circumstances – This is when the Police act with a reasonably belief that the must act immediately

THE MAPP HEARING

The Prosecution has the burden of going forward to establish that the Police conduct was proper. The defense have the burden of proving the illegality of the search. If the Prosecution intend to prove that the search was on consent, then they have to prove the voluntariness of the consent by clear and convincing evidence.

Under the Criminal Procedure law 710.60(4), hearsay is admissible to establish a material fact.

THE HUNTLEY HEARING

This is the suppression of incriminating statements.  The defendant can contest the voluntariness and lawful nature of any statements made to government agents.  This only deals with statements that the prosecution plans to use at trial. The hearing Judge will determine whether the defendant was in custody at the time of the statement, whether the defendant voluntary waived his or her miranda rights. Whether the Police coerced the defendant into making the statements. The defense can also argue that the statements were based on an illegal arrest. The Prosecution will have to prove that the statements were voluntary beyond a reasonable doubt.

THE WADE HEARING

This is the suppression of an identification. The defense is moving the Court to suppress the identification because it was unfair.

Todd A. Spodek, Esq. is a criminal defense attorney with the trial law firm of Storobin & Spodek, LLP. Please contact us 24/7 at (212) 748-9243.

A cornerstone of a criminal defendants rights is that their criminal trial be fair, and open to the public. These rights include the right for the defendant to be present at the trial, and other  important criminal proceedings. This essential right, can be waived and a trial can be commenced in absentia without the defendant being present. This right attaches to both Misdemeanor and Felony cases, pre-trial hearings, and sentencing.

For this waiver to occur, the court record must establish a constitutional waiver of the right to be present. The waiver must be knowing, voluntary, and an intelligent decision.  It is essential that the defendant know that the trial, or sentencing will be commenced in his or her intentional absence.  The defendant must be informed at the time of her plea, or if the case is to be adjourned to trial that it could proceed in their absence. If the defendants has plead guilty, and the case is adjourned for sentencing, the defendants must be advised that it is possible that a harsher sentence be handed down, and he will not be entitled to withdraw his previously entered into guilty plea.

Generally, Courts will required defendant to sign a statement embodying the Parker warnings. Defense counsel will be told to review these warnings with the defendant, and for the defendant to acknowledge on the record that he or she understands these warnings.  The warnings must be clear and unambiguous.

The Parker warnings must also be placed on the record, and the Court must consider the following factors in determining whether the criminal proceeding should commence in the defendants absence:

• The possibility that the defendant could be located within a reasonable period of time
• The difficulty of rescheduling trial
• The chance that any evidence will be lost or witnesses will be unavailable

If the defendant does not appear in Court, and the case move forward, the defendant should move for a Parker Hearing to ascertain whether he or she waived the rights.

Todd Spodek, Esq. is a criminal defense attorney with the criminal defense firm of Storobin & Spodek, LLP. If you have an criminal case dealing with Parker Warnings or a Parker Hearing please call us at (212) 748-9243.

The agency defense is used when a defendant is charged with a single sale of a controlled substance. The agency defense stands for the idea that the defendant is not guilty of “selling drugs”  because he or she was allegedly acting solely as the agent of the buyer – as a mere extension of the buyer. The defendant is essentially buying the drugs on the undercover Police Officers behalf, and acting as an agent for the buyer.

If there is a reasonable view of the evidence that the defendant was the buyers agent then the trial Judge upon a timely request from the defense counsel must instruct the jury as to the agency defense. The trial Judge will view the evidence in the light most favorable to the defendant. As long as there is some evidence, the agency instruction must be given. The agency defense is not an affirmative defense that the defense has to prove, but rather it negates the necessary intent to be found guilty of the sale.  Thus, the burden is on the People to prove beyond a reasonable doubt that the defendant was not the agent of the buyer.  The legislative policy behind the agency defense is that the person who purchases, or possesses drugs for themselves or for someone else  should be punished less severely then those who sell them.

The fact finder needs to determine if the defendant acted:

• on behalf of the seller,
• the seller and the buyer, or
• on the defendants own behalf.

If the fact finder finds any of the above three scenarios to be true then the defendant can not successfully use the agency defense.  The fact finder needs to look at the defendants state of mind when the sale took place. The agent must have no direct interest in the drugs being sold. Once the agency defense is raised, and intent becomes an issue the People can then cross-examine the defendant with his or her involvement in prior uncharged drug transactions. If the defendant acting alone, or in concert with another, had the specific criminal intent to sell the drugs then the agency defense would fail. On the other hand, if the defendant was found to be solely the agent for the buyer and obtained the drugs as his or her agency then the agency defense would negate the criminal culpability for the crime. The defendant can have an interest in obtaining drugs for his or her personal use, and for the buyer. A defendant who plays the role of a steerer can not raise the agency defense. A streerer is one who flags down potential customers for drugs and directs them to the proper location. An agency defense can be raised in possession with intent to sell cases.

Intent is a state of mind, and can be shown by the defendants conduct and other facts and circumstances. The jury will look at the parties conduct during the transaction.

Factors to consider:

• Did the defendant derive any personal (financial) profit from the transaction? Did the defendant intend to profit?
• Was the defendant promised in advance a substantial benefit or award?
• Did the defendant only receive money from the buyer as mere appreciation, or was it part of the bargain?
• Was the defendant acting solely on the buyers behalf without any independent desire to close the deal?
• Who initially suggested the sale? Was it the undercover?
• Was the defendant and the undercover friendly before this transaction?
• Where did the money for the drugs come from? Was it from the buyer, or the did the defendant advance money for the purchase?
• Did the defendant reach out to many sources to obtain the drugs?
• Did the defendant behave like a salesperson?
• Did the defendant have the drugs, or did the defendant obtain them from a third party?
• Did the defendant have prior dealings with this buyer?
• Did the defendant have prior dealings with this seller?
• Was the defendant and the sellers acting as one in this sale?

The jury in the case will be able to use the above factors, plus their own common sense and experience to determine whether the defendant can successfully use the agency defense.

Todd A. Spodek, Esq. is a criminal defense attorney with the criminal defense firm of Storobin & Spodek, LLP. To discuss the agency defense to criminal sale of a controlled substance crimes in New York State, please contact us at (212) 748-9243.

WHAT’S THE PURPOSE OF A CERTIFICATE OF RELIEF FROM DISABILITIES?

The general purpose of obtaining a Certificate of Relief from Disabilities (“Certificate”) is for employment purposes. The Certificate restores some of the rights that automatically  forfeited due to a felony conviction – it relives the holder of all enumerated forfeitures, disabilities, or bars to employment that are automatically imposed by law by reason of the conviction of the crime or offense listed on the certificate. The term forfeiture is referring to the loss of present rights. The term disabilities and bars to employment are referring to future rights.

An Employer or a licensing agency must consider it evidence that the offender is rehabilitated. This does not mean that you automatically will receive the job, just that you can only be rejected if there is other evidence that you are not qualified. Keep in mind, an employer can refuse employment even if you are otherwise eligible if your previous convictions are job-related.The Certificate does not restore the right to hold public office, or erase, or seal the conviction. The governing law is Article 23 of the New York State Correction Law.

Particular agencies and authorities may still deny an offender’s formerly held rights, based upon further investigation. For example, a Certificate does not mean that a pistol permit application by the offender will be approved.  A Certificate also does not cancel, or in any other way affect, the automatic forfeiture of a felony DWI offender’s operator’s license.

WHO IS ELIGIBLE FOR A CERTIFICATE OF RELIEF FROM DISABILITIES?

One can only apply for a Certificate if you have been convicted of no or one felonies. It does not matter if you have any misdemeanor convictions.  The Felony convictions that must be considered are all New York State, Federal and Out-of-State convictions.  Do not count cases in which you were tried as a juvenile delinquent or youthful offender.

If you have been convicted of more then one felonies, you are not eligible for a Certificate of Relief from Disabilities but you may be eligible for a Certificate of Good Conduct.

WHAT’S THE DIFFERENCE BETWEEN TEMPORARY AND PERMANENT CERTIFICATE OF RELIEF FROM DISABILITIES?

There are temporary, and permanent Certificate of Relief from Disabilities.  A temporary certificate is one that is:

1. Issued by the Court to a defendant who is under a revocable sentence as defined under Section 700 of the Correction Law and the Courts authority to revoke such sentence has not expired, or

2. Issued by the New York State Board of Parole and the individual is still under supervision.

If the sentence is revocable then the Certificate can be revoked by the Court for violation of the conditions of the sentence, and shall be revoked by the Court if it revokes the sentence and commits the defendantsto prison.If the individual is on Parole, then the Certificate may be revoked by the Board for any violation of the conditions or parole or release. If a temporary Certificate is to be revoked, it must be on notice to the defendant and permit him or her an opportunity to be heard.  If the Certificate is not revoked, then it will automatically become a permanent Certificate upon expiration of termination of the court’s authority to revoke the sentence or termination of Parole.

WHAT TO CONSIDER BEFORE APPLYING FOR A CERTIFICATE OF RELIEF FROM DISABILITIES

Anyone considering obtaining a Certificate of Relief from Disabilities, needs to determine a) what kind of license or employment the individual is seeking, and 2) researching any governing statutes to determine any restrictions for individuals with felony convictions, and c) whether the post conviction Certificate of Relief from Disabilities would provide assistance in obtaining the position.

APPLICATION FOR A CERTIFICATE OF RELIEF FROM DISABILITIES

The application process depends on the sentence you received, and where you were sentenced:

Misdemeanor Conviction & No New York State Prison Sentence

If you have been convicted of a misdemeanor, or a felony but served no time in New York State prison, then you must apply in the Court where you were convicted.  One must contact the Clerk of the Court to learn the individual steps required of that specific Court. The sentencing court has the discretion to grant the Certificate of Relief from Disabilities.

Felony Conviction & Served Time in New York State Prison

One must apply to the New York State board of Parole for the Certificate.  If you are currently out on Parole, then contact your Parole Officer.

Federal, Out-of-State Conviction for a Misdemeanor or Felony

One must apply to the New York State Board of Parole to get a Certificate of Relief for that Conviction. The Board of Parole mailing address and number is:

Certificate Review Unit

New York State Division of Parole

845 Central Avenue

Albany, NY 12206

(518) 485-8953

Todd A. Spodek, Esq. is a criminal defense attorney with the criminal defense firm of Storobin & Spodek, LLP. If you are considering applying for a Certificate of Relief from Disabilities please contact us at (212) 748-9243 for a free consultation.

There are four designated culpable mental states under the New York Penal Law section 15.05. Each of these mental states must be inferred from the facts and circumstances  proved, and involve “fine graduations along but a single spectrum of culpability.”

[w]hen the commission of an offense defined in this chapter, or some element of an offense, requires a particular mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms “intentionally,” “knowingly,” “recklessly,” or “criminal negligence,” or by the use of terms, such as “with intent to defraud” and “knowing it to be false,” describing a specific kind of intent or knowledge.

The four culpable mental states are:
1. “Intentionally.” A person acts intentionally with respect to a
result or to conduct described by a statute defining an offense when his
conscious objective is to cause such result or to engage in such
conduct.
2. “Knowingly.” A person acts knowingly with respect to conduct or to
a circumstance described by a statute defining an offense when he is
aware that his conduct is of such nature or that such circumstance
exists.
3. “Recklessly.” A person acts recklessly with respect to a result or
to a circumstance described by a statute defining an offense when he is
aware of and consciously disregards a substantial and unjustifiable risk
that such result will occur or that such circumstance exists. The risk
must be of such nature and degree that disregard thereof constitutes a
gross deviation from the standard of conduct that a reasonable person
would observe in the situation. A person who creates such a risk but is
unaware thereof solely by reason of voluntary intoxication also acts
recklessly with respect thereto.
4. “Criminal negligence.” A person acts with criminal negligence with
respect to a result or to a circumstance described by a statute defining
an offense when he fails to perceive a substantial and unjustifiable
risk that such result will occur or that such circumstance exists. The
risk must be of such nature and degree that the failure to perceive it
constitutes a gross deviation from the standard of care that a
reasonable person would observe in the situation.

Todd A. Spodek is a criminal defense trial lawyer with the criminal defense law firm of Storobin & Spodek, LLP.  Please contact our Manhattan office at  (212) 748-9243 or our Brooklyn office at (718) 596-3700 for a free consultation.

A person is guilty of unlawful possession of marijuana when he knowingly and unlawfully possessed marijuana

Penalties:

This statute is the decriminalization of marijuana in New York State. This is a violation punishable only by a fine of not more then one hundred dollars.

If the defendant has previously been convicted of an offense in Article 221, or Article 220, committed within the three years immediately preceding such violation, it will be punishable by:

• A fine of not more then two hundred dollars, if the the defendant was previously convicted of one such offense committed during such period, and
• A fine of not more then two hundred and fifty dollars or a term of imprisonment not in excess of 15 days or both, if the defendant was previously convicted of two such offenses committed during such period.

If you would like to speak to a Marihuana Criminal Defense Lawyer, please contact the Criminal Defense Firm of Storobin & Spodek, LLP at (212) 748-9234.

In New York State, Criminal Defendants can assign their bail to their defense attorney – or for that matter anyone else. This is especially helpful for defendants who have exhausted their financial resources to secure their temporary release pending trial.  The individual who posted the cash bail on the defendants behalf (commonly known as the surety) has the right to receive the money that they posted once the case is finished. They also have the right to assign it to someone else. They can assign all, or just part of the funds to someone else.

To assign bail to your criminal defense attorney; the following steps need to be taken:

1. The surety needs to provide the criminal defense attorney with the original bail receipt.
2. The surety needs to fill out completely a bail assignment application, and sign it in front of a notary.
3. The surety needs to provide the criminal defense attorney with copies of two forms of identification; valid NYS drivers license or out of state license or non driver ID, passport, ATM Bank/Credit Card, voters reigstration ID, employment ID, NYC library card or utility bill.  Note – one form of ID must have a photo.
4. The criminal defense attorney then must submit a signed letter on his or her letterhad stating that they represent the defendant

The above documents must be brought or sent to:

NYC Department of Finance

Client Services

1 Centre Street, Room 2200

New York, NY 10007

For more information on the process, please contact the NYC Department of Finance at 212-669-2879 or visit them online at:

If you or are a loved one needs the service of a criminal defense law law firm please contact us at 212-748-9243. Our phones are answered live 24/7.