Ask a Buffalo Criminal Attorney

Ask a Criminal Defense Lawyer in Buffalo New York

Ask a Criminal Attorney Buffalo NY

Regardless of your individual situation, whether you are going through a divorce or facing criminal charges and in need of a trial lawyer, seeking a criminal defense attorney can be an extremely stressful time, and sometimes you need the reassurance of answers right away. In an emergency, call Andrew S. Tabashneck Esq. directly for a free consultation. However, for non-emergency situations, I’ve compiled this very general Frequently Asked Questions page from many of the questions I get from my clients to help those who may be seeking immediate information.

Buffalo Criminal Attorneys should advise clients of the proper course of action in a criminal case.

Buffalo Criminal Attorneys must be familiar with your criminal case before advising

However, as you read through this text, I want to advise that nothing provided on this page should be taken directly as legal advice, and is only meant to provide you with a general idea of how certain situations may play out during a divorce. If you have any specific questions about the divorce or criminal proceedings it is important to consult a Criminal Lawyer Buffalo NY: (716) 526-7405

 

Criminal Law FAQ

Criminal lawyers buffalo ny must investigate the criminal case

Buffalo Criminal Attorneys have a duty to investigate the facts at the beginning of the criminal case.

CRIMES

Is texting while driving against the law? Ask a Criminal attorney buffalo ny.

Are texting tickets on the rise in Buffalo New York?

Is Texting while Driving a Crime? If so, how serious of a crime is it? Do police enforce it very strictly? 

buffalo criminal defense attorneys are probably aware, In the last year, the State of New York appears to be taking texting while driving increasingly serious.  Indeed, the penalties for texting while driving have increased over the last two years. Criminal attorneys in buffalo ny must advise drivers, who are facing charges related to texting infraction, not only of the $200 fine, but also the five point penalty which will cause the driver’s car insurance to skyrocket. Criminal lawyers in buffalo ny should understand the seriousness of the five-point penalty given that eleven points in an eighteen month period results in a suspended license, the consequences are quite severe.

In addition to the penalties related to car insurance, Criminal Defense Lawyer in Buffalo New York must also counsel clients that if a driver gets 6 points in the same period, he or she may be assessed a “Driver’s Responsibility Assessment” which will result in an additional $300 fine from the New York State Department of Motor Vehicles.

Criminal lawyers in buffalo ny will also be wise to notify clients, within the 18 month period, two convictions will result in a $250.00 fine, while a third violation or any violations after the third will result in a $450.00 fine along with the other penalties noted above.

Given the consequences related to car insurance, Criminal Defense Lawyers in Buffalo New York must be particularly mindful when counseling youthful drivers, who are already so costly to insure.  Especially, youthful drivers with a junior license or permit. For a driver under 21 with a junior license, as criminal attorneys in buffalo ny know, the first conviction results in a 120 day license or permit suspension.  As a result of regulations passed in New York in 2014, which criminal attorneys in buffalo ny should be familiar with, young drivers could also face a one year license or permit revocation for a second offense within six months of their license being restored.

Criminal attorneys in buffalo ny must be particularly attentive to the way these laws will impact youthful offenders given that police enforcement has become so much more prevalent. Criminal attorneys in buffalo ny may be familiar with the fact that some police vehicles are equipped with technology which allows them to view the inside of passenger cars to determine if a driver is texting while the phone is placed in his or her lap.

Although it is easy to perceive these laws as simply a draconian crackdown, Criminal attorneys in buffalo ny must keep in mind that such a crackdown is not out of thin air. The National Highway Traffic Safety Administration (NHTSA) reports that 10% of all drivers under age 20 who were involved in fatal accidents were determined to be distracted when the crash took place. In New York State, between 2005 and 2011, there was a 143 % increase in smart phone related crashes. Interestingly, during this same time period, alcohol related crashed actually decreased by 18%.

Criminal lawyers in buffalo new york have likely noticed such trends. Indeed, such trends are noticeable not only in Buffalo, New York but across the entire State of New York, including, Ontario County, with a huge 71 percent increase from the previous year; Broome County, with a 34% increase from 2013; Chemung County, with a 14% increase; Dutchess County, a 10% increase; Tompkins County, a 9 % increase; Monroe County, 8% increase, and Erie County, up 7% in 2014 from 2013.

If you are facing criminal charges or in the middle of a criminal case and need a trial lawyer contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or Buffalo dwi lawyer

Under New York Law What is a Petty Offense?

Under New York’s Penal Law 10.00, violations and traffic infractions, the least serious categories in New York, are not crimes but rather petty offenses. A conviction of either is not deemed a criminal conviction and the records are automatically sealed. Possible punishment includes incarceration (up to 15 days for a violation), fine restitution, and community service. However, probation is not possible.

When the accused is charged with a petty offense alone, the right to a jury trial does not attach. However, when criminal charges are filed along with a violation are charged, and the accused is entitled to a jury trial, all of the charges are to be determined by the jury.

Again, if the accused is convicted of a violation, which would not be a criminal case, the conviction is normally sealed. The “sealing” includes photographs, fingerprints, and records relating to the incident are sealed and unavailable to law enforcement authorities and to the public under New York’s Criminal Procedure Law 160.55.  While the normal procedure is to seal such convictions, under New York’s Criminal Procedure Law 160.50, the district attorney, upon five days’ notice to the accused or his or her Buffalo dwi lawyer may request the sealing of records be dispensed with in the interests of justice. In other words, the district attorney would need some compelling reason to justify the records not being sealed.  In many courts, however, this notice is waived by the criminal defense attorney buffalo ny where a plea is worked out.

In the case of a violation, such as disorderly conduct, which is not a criminal case, the maximum punishment is no more than 15 days in a local jail.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

Will police in buffalo ny file criminal charges against me related to harassment?

What qualifies as harassment?

In New York, there are a number of harassment laws. Generally such criminal laws prohibit a wide array of activities intended to harass, annoy, threaten, or alarm people.

If this individual is threatening and engaging in behavior that would cause a reasonable person to feel annoyed, then at the very least, one of the less serious charges of harassment could apply and criminal charges could be filed.  It is difficult to determine which level of harassment applies to this situation because of the lack of facts. Although it does sound like a very serious situation. I would be interested to know what exactly the complainant is alleging.

Just to provide some guidance on the matter, to support criminal charges of aggravated harassment in the second degree, a class B misdemeanor (maximum 6 months in jail) occurs when, with the intent to harass, annoy, threaten, or alarm another person, one communicates with a person anonymously or not, by telephone, mail, or other written communication in a manner likely to cause annoyance or alarm.

Criminal cases involving harassment can be very concerning and, as criminal defense attorneys who have experience in criminal law understand, oftentimes criminal charges are filed following the complaint.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

Within the context of criminal law, what is the difference between criminal charges involving a misdemeanor as opposed to a felony?

Although criminal charges may result in sentences of varying severity, criminal cases which are classified as felonies are are more serious than misdemeanors. For a misdemeanor, the potential penalties include a monetary fines and no more than 1 year in county jail. In contrast, the penalty for a felony could be more than a year in state or federal prison. Not long after criminal charges are filed, Criminal Defense Attorney Buffalo NY should open up conversations with the District Attorney or Assistant District Attorney and determine the best offer. When the criminal charges include a felony, again, it is certainly more serious than a misdemeanor. That being said, the prosecution does have the flexibility to decide whether to charge the accused as a felony. It is important to recall that shoplifting is generally a misdemeanor, unless the party stealing the property manages to steal over $1,000 worth items.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

PRE-ARREST ISSUES

Can the erie county district attorneys office wiretap a suspect before filing criminal charges in Buffalo?

Can the erie county district attorneys office wiretap a suspect before criminal charges have been filed?

Although discovery normally occurs after criminal charges have been filed under New York’s CPL Article 240, a court in New York, under CPL Article 690, may authorize a search warrant or a wiretap where no charges are pending to allow the prosecution to investigate criminal conduct.

Criminal attorney in buffalo ny must be aware the Erie County District Attorneys Office may even obtain bodily samples from the defendant prior to filing criminal charges under certain circumstances. One example could be in dwi cases. Although it is not disputed that a county court in New York does have jurisdiction to issue such an order even before the criminal case is before the court. A local court, such as Buffalo City Court for example, however, would not have jurisdiction to issue such an order.

Criminal lawyer in buffalo ny must also recognize, in the case of a blood sample in dwi cases or fingernail scraping in another type of criminal case, the prosecution must show a clear indication that the intrusion will supply substantial probative evidence; and the method of obtaining the samples is safe, reliable, and involves no more physical discomfort than reasonably necessary.

The Criminal law is complicated in New York and sometimes it’s best to ask a Buffalo Criminal Attorney for guidance. If you are looking for free legal advice buffalo ny from a criminal defense attorney buffalo ny, and facing criminal charges or in the middle of a criminal case, contact a criminal lawyers buffalo ny,  criminal lawyer buffalo ny, or  criminal attorney buffalo ny

Criminal attorneys must consider every relevant factor when advising clients about criminal charges.

The Tabashneck Law Firm Criminal Defense Lawyer in Buffalo New York

Will the prosecutor in Erie County consider whether the complainant wants to go forward with a trial?

Once charges have been filed, the district attorney has discretion in handling the case. The District Attorney may decide to drop the charge, reduce the charge, or offer no reduction at all.

A complainant’s attitude about the case may have a significant impact on how the district attorney will proceed. In a criminal case where the complainant reveals that he or she would like to drop the criminal charges, your Buffalo dwi lawyer may arrange to meet with the complainant and obtain more information. However, deciding what steps are permissible and how to achieve the end result may be problematic for the Criminal Defense Attorney Buffalo NY. Any improper actions could lead to additional criminal charges, which could include intimidating a witness or even bribery.

Furthermore, if the defendant attempts to persuade the complainant to provide false testimony, it could be admissible to show consciousness of guilt, if the actions are done with the accused’s knowledge and consent. Criminal Lawyer in Buffalo NY must also avoid preparing an affidavit by which a person falsely recants prior testimony. Again, this could lead to additional charges, if the accused has knowledge and consents to the attorney’s actions, as well as ethical sanctions against the attorney.

In the event that the complainant contacts the Criminal Lawyer Buffalo NY and expresses a desire to drop the criminal charges, counsel for the accused should consider having the complainant sign an affidavit  and include in the affidavit any discrepancies between what was alleged in the accusatory instrument and what the person actually says occurred. It is also important for counsel to emphasize the weaknesses in the prosecutions case, as well as a clear statement that the defense attorney did not provide legal advice to the complainant. Bottom line, all information in the affidavit should be accurate.

Please be advised, this is not legal advice. For a free consultation, contact a criminal defense attorney buffalo ny or criminal lawyer buffalo ny today.

Is my criminal defense lawyer allowed to interview the complainant in  a criminal case?

A complainant in a criminal case may be contacted by the Criminal Defense Attorney Buffalo NY. Furthermore, the defense attorney does not need the permission of the prosecutor after criminal charges are filed. Even if there is a temporary order of protection in place which directs the accused to have no contact with the complainant, defense counsel may nevertheless seek access to witnesses as part of his or her obligation to investigate.

According to New York case law, witnesses, including the complainant, are not the property of either prosecution or criminal defense attorney buffalo ny. The defense has  a due-process right to an equal opportunity to interview them. Is inappropriate for either a prosecutor or a criminal defense attorney buffalo ny to instruct witnesses to not talk to anyone unless the attorney is present.

However, it is also important to keep in mind the complainant has a constitutional right to refuse to talk to your Criminal Defense Attorney Buffalo NY. Therefore, once the complainant refuses to speak with defense counsel, defense counsel must respect the decision and cease all efforts of communicating with the complainant in the future.

Please be advised, this is not legal advice. For a free consultation, contact a criminal defense attorney buffalo ny or criminal lawyer buffalo ny today.

When do I contact a criminal defense lawyer in buffalo after police show up with a warrant?

What should I do if buffalo police are at my house with a warrant out for my arrest?

First, you should call a criminal defense lawyer as soon as possible. An  criminal lawyer buffalo ny can reach out to the police precinct on your behalf after criminal charges have been filed or before the criminal case is proceeding and arrange a time for you to surrender. This will save you the embarrassment of having the police come to your home or work. Your  criminal attorney buffalo ny should schedule an early morning surrender, to hopefully avoid a night in jail. He or she may also coordinate helpful witnesses and evidence so that it is available to the police, prosecutor, and judge early in the process even before the criminal case is before the judge.

If you do not contact a  criminal attorney buffalo ny after criminal charges are filed, the police could eventually go to your home or workplace to arrest you. It is also possible, if you are stopped by the police and they run your name through the system, the warrant will pop up and you’ll be arrested on the spot.

Also, it is critical to avoid speaking with anyone in law enforcement about the criminal case without a buffalo dwi lawyer present. Police are trained to get you to talk, but they have no loyalty to you. They will use the parts of the conversation that help move the criminal case along. Sadly, the police can lie to get you to say things that can be used against you. There’s almost no chance that you’ll be able to talk your way out of the arrest, and chances are, if the police plan on filing criminal charges, they will do so regardless of what you say. But there’s a great chance that you’ll make comments that can damage your criminal case.

Finally, do not reveal any details on social media!

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

Ask the criminal defense attorneys

Under New York State law, when do police in buffalo ny have the authority to search a vehicle?

Under the Fourth Amendment to the US and New York State Constitution, as most Criminal Lawyer in Buffalo NY learned in law school, the government is prohibited from unreasonable searches and seizures. Although the general rule is that police cannot search your vehicle without a warrant or your consent, there are so many exceptions that some scholars, paradoxically, argue the general rule has become the stated exception. In other words, in practice, it appears that police have many ways of justifying a vehicle search, even when the basis is at least somewhat dubious.

So, on a very general level, police have the authority to search a vehicle in three circumstances which, as any Criminal Lawyer Buffalo NY would know, covers many different situations: (1) warrant search; (2) consent search; (3) search conducted without a warrant or consent, but some other “exception” to the rule applies which provides police with the authority to conduct a vehicle search.

Oftentimes, police will attempt to justify a search on the basis of one or more of these three categories. At times, the arguments can become very nuanced. It is very important that your Criminal Defense Attorney in Buffalo NY understands the recent case law and is prepared to fight on your behalf

Did buffalo police have probable cause to pull me over and bring a dwi case in downtown buffalo?

Andrew Tabashneck ESQ is a Buffalo Criminal Attorney. If you are facing criminal charges, call today for a free consultation

ASK A BUFFALO CRIMINAL ATTORNEY: WHAT IS PROBABLE CAUSE TO BELIEVE VEHICLE AND TRAFFIC LAW WAS VIOLATED

As part of the exceptions to the general rule regarding the search and seizure of contents relating to an automobile. Police also have the legal right to pull a party over whenever the officers have probable cause to believe that Vehicle and Traffic Law was violated

In relation to probable cause, the courts in New York have to explained probable cause as “reasonable cause to believe that a person has committed an offense exists when evidence of information which appears a reliable discloses facts or circumstance which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment, and experience that it is reasonably likely that such offense was committed and that such person committed it.”

An experienced Criminal Lawyer Buffalo NY would recognize the quote from People v. Russell, a case decided by the New York Court of Appeals and codified in New York’s Criminal Procedure Law 70.10(2). For those who are not a Criminal Lawyer Buffalo NY, the case essentially stands for the ruling that where police witness any traffic infraction under New York’s Vehicle and Traffic Law, probable cause exists to pull you over.

In other words, if police in Buffalo see you commit any traffic infraction under the VTL (e.g., failure to use turning signal), then they have established probable cause necessary under the law to pull you over.

Although a Criminal Defense Attorney in Buffalo NY may argue the validity of the search, the fact remains that the law is very broad in this area. This broad room provides police with ample opportunities to abuse their discretion.

Did buffalo police have reasonable suspicion to believe I was engaging in criminal activity in downtown buffalo?

REASONABLE SUSPICION OF CRIMINAL ACTIVITY

In addition to stopping New Yorker’s cars based on probable cause that a Traffic and Vehicle law was broken, police may also stop a vehicle based on reasonable suspicion of criminal activity by you or others in the car. In People v. Cantor, the Court defined “reasonable suspicion” as “the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand.” People v. Cantor (1975). Much to the incredulity of many Criminal Defense Attorney Buffalo ny to establish reasonable suspicion, police just need to say that they saw you or a passenger in your car committing a crime.

As many Criminal Defense Attorney Buffalo NY recognize, it is relatively easy for police to legally stop you while you are driving a car.

Can police in buffalo ny search your car after legally pulling you over? 

In examining a vehicle search by a buffalo police officer, the first two questions a Criminal Lawyer Buffalo NY should ask is whether police had a warrant or whether the accused provided consent for the search of his belongings. An Experienced criminal attorney in Buffalo NY knows that police can always ask for consent to allow them to search the car. Often, police will ask the driver to “step out of the car” or “open your trunk.” If the driver fails to “refuse” such potential violations of the Fourth Amendment, it is extremely likely this will be used as a justification for the search. Unless, in an omnibus motion, the Criminal attorney in buffalo ny, raises particularly novel issues in an insightful manner, the evidence seized will be upheld. In fact, even if the Criminal Defense Attorney in Buffalo NY makes the greatest of arguments, in all likelihood, the court will rule the driver provided consent by failing to refuse.

If, on the other hand, you do not consent, buffalo police must end the fishing expedition unless an exception applies. If the police in buffalo search anyway, as buffalo criminal defense attorneys recognize, the authorities have committed an illegal search under the Fourth Amendment.  This presents the Criminal Lawyer Buffalo NY with an excellent opportunity to suppress the physical evidence seized against the accused within the omnibus motion of the Criminal Lawyer Buffalo NY

As a Criminal Defense Attorney Buffalo NY should know, if neither category applies, the Criminal Defense Attorney Buffalo NY must move to the third category where he or she asks if any of the exceptions apply.

Aside from Consent, do buffalo police have any other justifications for searching the vehicle? 

If police in buffalo new york seize evidence from the vehicle, it is vital your Criminal Defense Attorney in Buffalo NY understand whether the seizure was justified. Critically, at the time of the stop, if police have probable cause to believe the vehicle contains fruits of the crime or contraband, then the office may search the car without first obtaining a warrant.

When examining whether buffalo police established probable cause prior to the search a Criminal Lawyer in Buffalo NY must pay close attention to the specific facts involved. For instance, if an officer pulls over an individual for failing to use a turn signal and then proceeds to search the car based on the officer’s belief that marijuana is located in the trunk of the car. In such a case, the officer must have some basis for believing the car contains marijuana.

An experienced Criminal Defense Attorney in Buffalo NY understands that a so called “hunch” will not be enough to justify a search. A smell, on the other hand, is likely enough of a justification. While there must be some basis for the belief, the threshold is low and as a Criminal Defense Attorney in Buffalo NY recognizes, all too often, New York judges have too much faith in police and the stories many officers like to tell on the witness stand.

While police in buffalo new york are arresting me, is it legal for an officer to search me?

Most Criminal Lawyer in Buffalo NY know police in buffalo new york may conduct a search during the arrest. The Supreme Court has emphasized in such cases the exception is based on officer safety. As many Criminal Defense Attorneys in Buffalo NY know, many searches are justified based on officer safety. In fact, the idea of “shoot first and ask questions later” is rooted in “officer safety.” Clearly, the safety of police is important, however, in the opinion of many Criminal Defense Attorney in Buffalo NY, this important priority should be balanced with the liberty interest of the individual provided by the United States Constitution and the New York State Constitution.

In criminal defense cases, If police arrest me in Buffalo New York, can they search my entire vehicle?

If police arrest me in Buffalo New York, can they search my entire vehicle?

A Criminal Lawyer in Buffalo NY must be aware of the search incident to arrest exception. As described above, during the course of an arrest, police may conduct a search incident to arrest. As noted, the justification is based on the Supreme Court’s perceived desire to maintain officer safety.  At the same time. Criminal Defense Lawyer Buffalo NY and buffalo criminal defense attorneys must remember the reasoning involved in the Search incident to an Arrest is distinct from the probable cause type of search.

A Criminal Lawyer in Buffalo NY has probably encountered criminal defense cases where a simple traffic violation, where no probable cause is established to search for contraband in the vehicle, turns out to be more serious when the Buffalo NY Police discover the license of the driver is suspended. Once Buffalo NY Police establish the party was driving on a suspended license, the Buffalo will have the authority to conduct a search incident to arrest.

A Criminal Defense Attorney Buffalo NY must be aware in criminal defense cases that Buffalo Police may search the interior of the vehicle incident to the accused’s arrest, where the arrestee is still inside the car, unsecured, and has the opportunity to gain access to the interior of the vehicle. This type of search will include the search of closed containers, such as purses, backpacks, etc, in the vehicle. Again, Criminal Defense Lawyer Buffalo NY must recall the exceptions: for instance, police in Buffalo NY may search closed containers if police believe the accused is armed, poses a danger to either the officer or the public, or the accused is in the process of destroying evidence

However, in a criminal defense case where the suspect exits the vehicle, police in Buffalo or Amherst cannot search any containers in the car for the purpose of finding weapons or other evidence of a crime because the accused no longer poses a threat of reaching for weapons or destroying evidence. As a result, a Criminal Lawyer in Buffalo NY or a Criminal Lawyer in Buffalo NY, may advise the accused to exit the vehicle as soon as the officer requests the accused to do so. This advice is not based on a desire to be fully cooperative and allow the officer to do whatever he wishes, but rather the evidence seized as a result could be deemed to be the product of an illegal search and seizure.

Criminal Lawyers in Buffalo and Criminal Defense Lawyer Buffalo NY should know a search incident to an arrest is limited to the arrestee’s wingspan. The wingspan includes the clothing and anywhere in the care within the arrestee’s reach.

Now, once a person is arrested, Criminal Lawyer in Buffalo NY  should know New York State does not provide officers with the right to search the trunk or any other containers incident to arrest unless the police have reasonable suspicion of illegality. As noted above, reasonable suspicion of illegality is a low bar that often causes frustration to Criminal Lawyers in Buffalo ny. Reasonable suspicion of illegality could be the suspect is armed, posing a threat of danger to them or the public and attempting to destroy evidence.

That being said, even if the police claim to have established probable cause, Criminal Defense Lawyer Buffalo NY must examine the facts in the criminal case and determine if everything adds up. If the officer’s story is outlandish and cannot be justified given the presence of other facts, it is critical the Criminal Attorney in Buffalo NY submit the necessary arguments, supported by facts, in the omnibus motion where the Criminal Defense Attorney in Buffalo NY can seek to suppress the physical evidence recovered.

Again, if you find yourself in the middle of a criminal case, it is very important to find lawyers in buffalo ny free consultation

POST ARREST 

criminal attorneys in buffalo in new york must always protect the rights of the accused

Processing

In most criminal defense cases, following your arrest, you will be taken to the police station, fingerprinted and photographed. Police may attempt to interview you, however, it is vital that you refuse to answer any questions and request to have a criminal attorneys in buffalo in new york present.

Police will, however, take down your pedigree information such as name, address, date of birth, height, weight eye color. Again, while you have the right to an attorney and should request a Buffalo Criminal Defense Attorney, it is ok to provide basic information regarding your name, address, date of birth, height, weight, and eye color. But remember, everything you say can be used against you.

Also keep in mind, if you choose to provide the basic information, you must be truthful because providing a false name is a crime known as criminal impersonation while withholding pedigree information could increase the chances that bail will be imposed. Again, consult an Affordable Lawyer in Buffalo NY before providing any statements beyond basic information.

Once processed at the police station, in criminal defense cases which are less serious, the accused is provided a desk appearance ticket and released. The Desk Appearance Ticket may include an arrest number, section of the law alleged to have been violated, and the date and time of the initial court appearance. Remember to maintain any paperwork and provide it to your Criminal Defense Lawyer Buffalo NY.

Ask a buffalo dwi lawyer

What is a Desk Appearance Ticket?

A desk appearance ticket (DAT), also known simply as an appearance ticket, provides you with written noticed, signed by a police officer or other authorized public official, which directs an individual to appear in a designated local criminal court at a specific time in relation to the alleged violation or criminal activity.

During the initial meeting with your criminal attorneys in buffalo in new york, hopefully prior to the arraignment, it is important to bring the Desk Appearance Ticket to the free consultation so the Criminal Defense Lawyer Buffalo ny knows the charges.

Under Criminal Procedure Law 150.10(1), in New York, any notice that conforms to this general description is an appearance ticket.
For more questions, contact a Criminal Lawyer Buffalo NY and schedule a free consultation

If I was only provided with a Desk Appearance Ticket, can I plead guilty to the misdemeanor charge?

Under New York’s CPL § 170.65(e), since you were charged with a misdemeanor, you have a right to be prosecuted by an information. As a result, without a proper waiver, even if you plead guilty, the issue is preserved on appeal. In other words, a criminal lawyer buffalo ny could appeal the conviction and the appellate court would almost certainly reverse the conviction.

For a free consultation, contact lawyers in buffalo ny free consultation

What is a preliminary hearing? When does it usually occur?

If you are charged with a felony and in custody, you have the right to have a preliminary hearing within 120 hours of being placed in confinement or 144 hours if a weekend or legal holiday falls within that 120 hour period. You must be released if a preliminary hearing is not timely held unless otherwise agreed or you have other holds or you have already been indicted by the grand jury. Most preliminary hearings are held in local criminal court and only last two to three hours.

A preliminary hearing is one of your few chances to gain pre-trial discovery. As a general rule, neither you nor your Buffalo dwi lawyer should not waive your right to a preliminary hearing unless you have other holds (i.e. Parole Hold) or a key witness may be available to testify at the preliminary hearing but not at the trial. However, your Buffalo dwi lawyer may advise you to waive or adjourn your preliminary hearing if the prosecution makes a favorable plea bargain offer that is contingent on your waiving the preliminary hearing.

The purpose of the preliminary hearing is to determine whether you should continue to be held in jail for the next forty-five days for action by the grand jury. The prosecution must show there is reasonable cause to believe you committed a felony crime. The prosecution will call witnesses to testify and introduce evidence at the preliminary hearing. The prosecution will usually attempt to call as few witnesses as possible to meet their burden of proof so as to keep their cards close to their vest. Your Buffalo dwi lawyer should ask the prosecutor to turn over the prior statements and the criminal record of any witness the Erie County District Attorney plans call to testify during the criminal case.

Buffalo dwi lawyers, during the dwi criminal case, will be given the opportunity to cross examine those witnesses and examine that evidence. You have the right to testify at the preliminary hearing. You may with the court’s permission call witnesses and introduce evidence. In most criminal defense cases, Criminal Defense Lawyers Buffalo NY will advise the defendant to waive the right to testify in the criminal case and introduce evidence at the preliminary hearing. In other criminal defense cases, however, Buffalo dwi lawyers will use the preliminary hearing as an opportunity to gain information about the prosecution’s criminal case against you without revealing any information about your defense.

The prosecutor in Erie County will likely successfully object to some of your criminal attorney buffalo ny questions as being irrelevant because they seek information beyond the scope of the hearing. This should not be a source of concern for you since your Buffalo dwi lawyer is probably simply attempting to test the waters and get as much information as possible out of the preliminary hearing.

At the conclusion of the preliminary hearing, the court in many criminal cases may order you held for action by the grand jury, reduce the charges against you, or release you. If the judge in Buffalo City Court, located in downtown Buffalo, does not release you, the judge in Buffalo may set bail unless you have two prior felony convictions or you are charged with a class A felony. In the majority of criminal cases, defendants are held over for action by the grand jury.

The witnesses who testified at the hearing may later be called to testify at subsequent hearings or trial. In many criminal defense cases, prior testimony is an excellent tool for cross examination. Therefore, your criminal attorney buffalo ny should order a copy of the transcript of the preliminary hearing to prepare for subsequent hearings or trial.

Again, if you find yourself in the middle of a criminal case or just learned the police filed criminal charges against you, it is very important to find lawyers in buffalo ny free consultation

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal defense lawyer buffalo ny,  buffalo dwi lawyer, or buffalo criminal lawyers

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The Arraignment

After criminal charges are filed and you are processed, the next step in criminal defense cases is the arraignment. In every criminal case, it is important to have a Criminal Defense Lawyer represent you at the arraignment stage, so be sure to contact a Criminal Lawyer Buffalo NY. The arraignment is the initial court appearance which is in front of a judge in a town or village court, district court, city court, for example Buffalo City Court located in Downtown Buffalo, or criminal court.

In New York, these various types of courts are considered “lower criminal courts” which initially handle all criminal cases including felonies. It is important to have a local Criminal Defense Attorney Buffalo NY who understands the customs and prepare the best possible criminal defense.

What Happens at the Arraignment?

At the arraignment in a criminal case, several important events will take place. First, the judge will read the charges and determine whether bail should be imposed or you should be released on your own recognizance (“ROR”). Before the judge makes this decision, however, your Criminal Lawyer Buffalo NY should bring certain facts to the court’s attention which establish that you will return for the next court date.

In every criminal case, you are also entitled to a copy of the criminal charges and should request a copy if the judge does not provide them to you.

Again, it is critical that you have representation at this stage of the process. A Criminal Lawyer Buffalo NY will make the necessary arguments regarding bail and also make sure you obtain a copy of the criminal charges.

If you do not have much spending money, schedule a free consultation with an affordable lawyer in Buffalo NY and set-up a payment plan.

Buffalo dwi lawyers should not allow clients to plead guilty at arraignment in Buffalo City Court located in Downtown Buffalo

Can I plead guilty at the arraignment?

Can you plead guilty at arraignment in a criminal case right after criminal charges are filed against you? yes. Now, whether you should is another story.

Under Criminal Procedure Law 170.60, at arraignment, the defendant may plead either guilty or not guilty to the criminal charges. With a felony complaint in local court, the criminal defendant is technically not required to enter any plea to the criminal charges, but it is common practice to plead not guilty.

Now, getting to the crux of the question: whether you should ever plead guilty at arraignment in a criminal case. The reality is that a plea of not guilty is almost always better at this early stage in criminal defense cases. Even if you plan on pleading guilty in the very near future. One of the reasons is because in a criminal case a plea of not guilty can always be changed at a later date, while changing a guilty plea is a tougher process. Additionally, it provides you with a degree of leverage which is critical in negotiating your plea with the prosecution.

Finally, if you are facing criminal charges and you are innocent, clearly, you should never plead guilty. Although this does often occur because many people are afraid of the consequences if they were to be found guilty of the crime by a jury.

Again, if you find yourself in the middle of a criminal case and feel uncertain and confused, it is very normal. The criminal law lacks empathy and often the process of facing criminal charges feels like a punishment in of itself.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  dwi defense lawyer buffalo ny

Can an order of protection be issued against me at arraignment?

Under New York’s CPL 530.13, a court in New York is authorized to issue an order of protection in conjunction with any criminal proceeding. This expands New York’s Criminal Procedure Law 530.12 and allows for orders of protection to be issued not only in proceedings involving family offenses but also in criminal defense cases.

The reasoning for expanding this type of order to criminal cases was based on an increasing dissatisfaction for the previous method of issuing orders of protection in criminal charges involving threats, harassment, and other types of intimidation.

As criminal attorney in buffalo ny were used to with the prior law, however, for the defendant to face criminal charges for the violation of an order of protection, he or she must, either orally or in writing, be advised of the contents of the order and the conduct it prohibited. If the accused is merely notified that an order of protection has been issued, in New York, it probably will not be enough to justify the criminal charges.

Again, if you find yourself in the middle of a criminal case or have just learned the police will file criminal charges against you, it is very important to find lawyers in buffalo ny free consultation

Please be advised, this is not legal advice. For a free consultation, contact a Criminal lawyer in buffalo ny, criminal attorney in buffalo ny, or a Criminal Defense Lawyer Buffalo NY

Will the Prosecutor in Erie County serve me with any documents at the arraignment?

In criminal defense cases, at arraignment the Prosecution may serve Notices on your Criminal Lawyer Buffalo Ny. Once served on your Criminal Lawyer Buffalo ny, the notices fall into two categories. The first category is to  inform your Criminal Defense Lawyer Buffalo NY about specific evidence the Prosecution has obtained, while the other demands certain information from your criminal defense lawyer buffalo ny.

In most criminal cases, the typical notices include the Statement Notice, Identification Notice, and the Alibi Notice.

The Statement Notice informs your Criminal Lawyer in Buffalo ny the Prosecution intends to use a statement the defendant made to a public servant against him in the criminal case.

The Identification Notice is the People’s notice that they intend to offer testimony the accused was seen either at the time and place of the alleged offense or at some other time relevant to the alleged criminal charges.

Once the Prosecution serves the Alibi Notice on your criminal lawyer buffalo ny, if your Criminal Defense Lawyer Buffalo NY plan to use the alibi defense, your criminal lawyer buffalo ny must notify the Prosecution of the alibi within 8 days of being served.

These notices are very important because missing any deadlines may be very damaging to your case. Contact a Criminal lawyer in Buffalo ny for more information.

Ask a Buffalo Criminal Defense Lawyer

What happens after I am indicted on Felony Criminal Charges in Erie County

Even though criminal charges were already filed and you were already arraigned in the  local criminal court, such as in Buffalo City Court located in Downtown Buffalo, following the Grand Jury indictment, the defendant will be arraigned again in Superior Court.

Criminal lawyer buffalo ny know once the defendant has been indicted on felony criminal charges, the arraignment on the indictment will be held in superior court, which is either County or Supreme Court. In Buffalo, New York, for example, the arraignment following the indictment would take place in Supreme Court located in the City of Buffalo.

At the indictment arraignment, the judge will inform the defendant of the criminal charges, appoint counsel if necessary, and review the bail status of the accused. The Criminal Attorney Buffalo NY who represented the accused in the local criminal court must be given two days’ notice prior to the indictment arraignment, under New York’s Criminal Procedure Law 210.10(1)(2). The judge may also reconsider the bail status at this time, which provides for the possibility of bail increase or revocation. Therefore, in almost every criminal case, Criminal Attorney Buffalo NY should be prepared with a bail argument in the event the People argue that bail be revoked.

In other criminal defense cases, parties may also review whether a temporary order of protection should be requested, modified or extended. In the event the court fails to formally arraign the accused on an indictment in a criminal case, it is not a jurisdictional defect, if the accused submits to the jurisdiction of the court.

Again, if you find yourself involved in a criminal case or facing criminal charges, it is very important to find lawyers in buffalo ny free consultation

Please be advised, this is not legal advice. For a free consultation, contact a  buffalo dwi lawyer, Criminal lawyer buffalo ny, criminal defense lawyers buffalo ny, or Buffalo Criminal Lawyer.

Accusatory Instrument

What is a valid accusatory instrument?

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

Criminal lawyer buffalo ny should know a valid, sufficient accusatory instrument is fundamental for the district attorneys office to justify any criminal charges. Under New York’s Criminal Procedure Law, Articles 100 and 200 respectively, the standards of sufficiency are laid out in detail. Generally, in a criminal case where the criminal charge is a misdemeanor, the information must contain non-hearsay factual allegations that establish a prima facie case. In addition to the factual allegations, criminal attorney buffalo ny should pay close attention to the source of the knowledge.

In criminal defense cases where the source of the knowledge is “upon information and belief”, the source of that information must be stated. In other words, to support criminal charges in a criminal case, a sufficient information may be supplemented by allegations in a supporting deposition of a victim or a witness. The deposition is not an accusatory instrument, but rather a supporting document. Generally, the supporting deposition is filed with the information. This is particularly imperative when the source of the information is “upon information and belief.

Please be advised, this is not legal advice. If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal defense lawyers buffalo ny, criminal lawyer buffalo ny, Buffalo dwi lawyer or Criminal Lawyer Buffalo NY.

Can a Misdemeanor Information contain hearsay allegations?

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

Criminal lawyer buffalo ny should know an information must contain non-hearsay factual allegations that establish a prima facie case. Generally, so long as the factual allegations of an information give an accused notice sufficient to prepare a defense and are adequately detailed to prevent a defendant from being tried twice for the same offense, they should be given a fair and not overly restrictive or technical reading.  However, where the factual portion of the information contains only hearsay allegations, which do not fall into any of the hearsay exceptions, regarding any element, the information is defective.

Criminal attorney buffalo ny however, must keep in mind that even if the information is deemed defective and is dismissed, the dismissal is without prejudice, which means the criminal charges may be refiled, which could lead to the prosecution initiating a new criminal case.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or buffalo criminal lawyers

Does a police officer violate the verification requirement under NY Criminal Procedure Law 100.30  by affixing an electronic signature to a deposition before entering the specific factual allegations?

With the growing reliance on electronic signatures in criminal defense cases, this type of question was bound to arise. Although there is not unanimous agreement on this matter, at least one court in New York has ruled that electronic signatures on depositions are valid under New York’s Criminal Procedure Law 100.20. To clarify, in New York, Criminal Procedure Law 100.20 requires that a supporting deposition be “subscribed and verified” while New York’s CPL 100.30 describes how a supporting deposition may be verified. Specifically, under New York’s Criminal Procedure Law 100.30(1)(d), the supporting deposition “may bear a form notice that false statements made therein are punishable as a class A misdemeanor pursuant to section 210.45 of the penal law, and such form notice together with the subscription of the deponent constitute a verification of the instrument.”

So the first question here is whether the Buffalo police officer can use an electronic signature. Again, although this issue is not settled, in one criminal case a trial court rejected the argument advanced by the criminal defense lawyer and found electronic signatures are valid so long as the supporting deposition bears the required language of New York’s Criminal Procedure Law 100.30(1)(d), as it relates to false statements. Therefore, at least one New York court has rejected the argument that an accusatory to instrument is defective solely because the electronic signature violates the verification requirement.

Another interesting question arising from these criminal defense cases involves the timing. Specifically, what if the electronic signature is affixed before the Buffalo police office even makes the criminal allegations underlying the criminal charges? Given that an officer could proceed to write anything in the factual allegations once the electronically signed deposition is printed out, does this mean the deposition fails to satisfy the verification requirement?

At least one court in New York State has stated that electronically signing a deposition before writing any factual allegations does not violate the verification requirement. The court reasoned the act of printing out an electronic supporting deposition and filing a copy with the appropriate court in New York is enough to affirm the contents of the deposition. As a result, it complies with Criminal Procedure Law 100.20.

Nevertheless, in relevant criminal defense cases such as dwi cases, concerns remain with regards to the timing of the signature. At the very least, in criminal cases, the best practice would be for officers to avoid affirming the contents of a deposition until the “contents” are actually included in the document.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or buffalo criminal lawyers

What is a Superseding Information?

Criminal attorney buffalo ny know, under New York law, after originally filing criminal charges through a local accusatory instrument, such as a misdemeanor information, later in the criminal case, the prosecutor may file a superseding instrument charging a different criminal offense, or even alleging facts different from the original criminal charges. To learn more about a superseding information it is very important to consult with an Criminal Defense Lawyer in Buffalo New York

Criminal Defense Lawyer in Buffalo New York should know the effect of filing a “superseding instrument” is that the original charge is dismissed and replaced with the new charge. Under New York’s CPL 100.50 the prosecutor has the authority to file a superseding accusatory instrument. In fact, as one court in New York opined, “The District Attorney has virtually unfettered discretion in deciding whether, whom and how to prosecute and limitations on that power are not to be presumed by implication.” In other words, the prosecution has a great deal of discretion.

Criminal attorney buffalo ny should also know under New York’s CPL 100.50, a superseding information may be filed in local court. The superseding information may include charges not included in the original information. Under New York’s CPL 100.50, only an information, a prosecutor’s information and misdemeanor complaint may be superseded by another information or prosecutor’s information. In other words, one limitation on the prosecutor’s discretion is in the case of a traffic information, which cannot be superseded.

As noted in the traffic information example, the prosecutor does not have unlimited discretion. Where the prosecutor files a new information and charges the same offense but with an altered theory, the new information did not qualify as a superseding information. If this situation presents itself, a Criminal Defense Lawyer in Buffalo New York should object immediately and file a written motion if necessary.

Based on the facts in the criminal case you have described, as criminal attorney buffalo ny know, it is possible that the prosecutor can continue to file new criminal charges. However, this would depend on the so called “30-30” time limits. The district attorney in buffalo ny is under an obligation to declare trial readiness within a certain period of time, so eventually this could be problematic, and following a motion by your criminal attorney buffalo ny the criminal charges could be dismissed. Although the complicated nature of the 30-30 time limits (i.e. what time counts; what time doesn’t count; when the time starts; etc), renders that subject outside the scope of this entry.

Please be advised, this is not legal advice. If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or buffalo criminal lawyers

Do I have the Right to a Criminal Defense Lawyer in Buffalo New York at Arraignment?

While we already addressed the issue of whether you should have a criminal lawyer in Buffalo NY represent you at the arraignment, it is also important to keep in mind that you have a constitutional right to representation in certain criminal cases. The New York Court of Appeals, in interpreting New York’s State Constitution, held the accused has a right to have a Criminal Defense Attorney in Buffalo New York represent him or her at the arraignment because it is a critical stage of a criminal case.

Please be advised, this is not legal advice. For a free consultation, contact a Criminal lawyer in buffalo ny, criminal attorney in buffalo ny, criminal defense lawyers buffalo ny

What should I do if I am at the arraignment and I do not have a Criminal Lawyer Buffalo ny representing me?

What should I do if I am at the arraignment and I do not have a Criminal Lawyer Buffalo ny representing me?

If the criminal charges you are facing include a felony or serious misdemeanor and you do not have a Criminal Lawyer Buffalo NY, it is critical to notify the judge that you do not wish to proceed with the criminal case until you have a Criminal Defense Attorney Buffalo NY.

If, on the other hand, you are not necessarily certain whether the criminal charges are serious enough to justify bail, then ask the judge if he or she is planning on imposing bail. If the judge answers in the affirmative, at that time, you may request a Criminal Lawyer Buffalo NY to represent you and argue against bail on your behalf.

If you are concerned that you cannot afford a Criminal Defense Lawyer Buffalo NY or your private Criminal Lawyer Buffalo NY is not available for arraignment, the court must provide you with an Criminal Defense Lawyer Buffalo NY at arraignment at no cost.

Please be advised, this is not legal advice. For a free consultation, contact a Criminal lawyer in buffalo ny, criminal attorney in buffalo ny, criminal defense lawyers buffalo ny

Once I am arrested in New York, how long do I have to wait to be arraigned?

Once you are arrested, following the filing of criminal charges, you have a right to be arraigned within 24 hours during the week and within 48 hours on the weekend. If police and the court system exceed that time, your criminal defense attorney buffalo ny can file a writ of habeas corpus which is a court order directing the defendant be release from custody.

Please be advised, this is not legal advice. For a free consultation, contact a criminal defense attorney buffalo ny, criminal lawyer buffalo ny, Buffalo dwi lawyer, or Criminal Lawyer Buffalo New York

Once arraigned and bail is set, how long until I am indicted?

After you are arraigned with or without your Criminal Defense Attorney Buffalo NY, in a dwi case for example, bail is set or you are released without bail, the prosecution must move forward with the criminal case. If the criminal charge is a felony and the accused is in custody, Criminal Attorney Buffalo NY should keep in mind the prosecution must obtain an indictment within 120 hours during the week or 144 hours during the weekend or an intervening holiday

Please be advised, this is not legal advice. If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi case, contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or buffalo criminal lawyers

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What is Bail and is it usually set in dwi cases?

Bail is an amount of money you, a friend or family member “post” with the court to ensure that you return to court to face the criminal charges which relate to the dwi case. The criminal law does not consider bail a punishment, which means a judge should only impose bail if the defendant is a “flight risk” or the criminal charges filed relate to certain dangerous felonies, including, aggravated driving while intoxicated cases.  It is critical that the Criminal Attorney Buffalo NY representing in the dwi case makes a motion to reduce bail, if you cannot afford to make the payment. Following the motion, the court in New York will schedule a hearing where your Criminal Lawyer Buffalo NY will make the necessary argument on your behalf.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a dwi case, contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or buffalo criminal lawyers

What Factors will the Court Consider in Determining Bail in dwi cases?

Criminal Defense Lawyer Buffalo NY are aware that New York Criminal Penal Law (CPL) § 510.30 sets out the factors the court will consider when deliberating Bail. These factors also apply to dwi cases

  • Character, reputation, habits and mental condition;
  • Employment and financial resources;
  • Family ties and the length of his or her residence in the community;
  • Criminal record;
  • Record or adjudication as a juvenile offender or youthful offender; and
  • Record of responding to court appearances.

Furthermore, courts in buffalo ny will also consider the following additional factors:

  • The weight of the evidence against the accused in the pending criminal action and the likelihood of conviction; and
  • The sentence that may be imposed on conviction.

It is very important to have a Criminal Attorney Buffalo NY to represent you, particularly in dwi cases, so the necessary arguments can be made by the criminal defense lawyer on your behalf.

Please be advised, this is not legal advice. If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a dwi case contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or buffalo criminal lawyers

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How do I Post Bail? 

Criminal Defense Lawyer in Buffalo New York understand, generally in New York, bail can be posted in two different forms: cash or by bail bond.

Typically, the bail bond will be higher than the cash amount. As Criminal Defense Attorneys in Buffalo NY are aware of,  Bail bonds must be obtained with the assistance of a bail bondsman who must have the appropriate license. The bondsman will review the finances of the person accused and make sure he or she has the ability to pay. Usually, the bondsman will impose a fee for the bond. However, there is not a single price across the board. Certain bondsmen will charge less than others. If it makes sense to hire a bondsmen, your Criminal Attorney Buffalo NY should know who charges the most affordable rates.

Again, if you are facing criminal charges or in the middle of a criminal case, such as a dwi case, contact a criminal defense lawyer buffalo ny,  buffalo dwi lawyer, or buffalo criminal lawyers

If Bail has already been posted and I run away, w\hat will happen?

If the defendant in the criminal case runs away after bail is posted, whoever posted the bail will forfeit the amount of the bail. Making matters worse, the defendant in the criminal case will also be charged with bail jumping which is a felony in violation of the criminal law of the State of New York. A warrant will then be issued for your arrest. If the defendant decides to run away, there is not much the criminal defense attorney Buffalo NY will be able to do.

If the defendant returns to court, bail will be refundable at the end of the criminal case. The only additional note here is that the court may reduce the bail money returned to you if there are any outstanding fees due. If, however, your Criminal Lawyer Buffalo NY resolves the criminal case, then you will not have any outstanding court fees which means the entire bail amount should be returned to you.

Again, if you find yourself in the middle of a criminal case, such as a dwi case, with little knowledge about criminal law, it is very important that you hold off on speaking with the police or law enforcement.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal defense lawyer buffalo ny,  buffalo dwi lawyer, or buffalo criminal lawyers

Is it possible for the prosecutor to keep the defendant in custody even after bail is posted?

Even following a successful bail application, a prosecutor intending to keep the defendant in jail may, under New York’s Criminal Procedure Law 520.30, challenge the proposed obligors, suretors, and assets by which defense counsel hopes to satisfy conditions of release.  Criminal defense lawyers must be prepared to establish the legality of financial resources and the personal qualities of individuals will be used to meet bail conditions in the criminal case. Specifically, each obligor must swear to basic biographical facts in an affidavit which is outlined in the Criminal Procedure Law 520.20(2).

criminal attorney buffalo ny should advise obligors, the person securing bail, of this requirement and carefully analyze the representations in the affidavit. If counsel fails to do so, it could lead to a potentially disastrous surprise, where the prosecutor challenges the obligors under Criminal Procedure Law 520.30(1).

Therefore, to answer your question, indeed, there is a situation where you may remain in bail even after bail is posted.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  dwi defense lawyer buffalo ny

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What happens if I don’t show up for the next court date after my release?

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.
In New York State, If you failed to return to court within 30 days of a required appearance, it is possible the prosecutor may file criminal charges related to bail jumping. Again, whether to charge this is a matter of prosecutorial discretion.  If you are charged with bail jumping, it is a Class A misdemeanor under New York’s Penal Law 215.55.

Your criminal lawyer buffalo ny could argue as an Affirmative defense, under New York’s Penal Law 215.59, to the charge of bail jumping may apply if the accused can show the failure to appear was unavoidable because of circumstances beyond the control of the accused, and that a voluntary appearance was made as soon as possible.

Also keep in mind that in certain situations, bail jumping may require consecutive sentencing. This means you could end up having to serve time, not only on the criminal charge you originally faced, but on any extra jail time sentenced as part of the bail jumping disposition. As a class A misdemeanor, the judge could sentence you to up to a year in jail and three years probation.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal defense lawyer buffalo ny,  buffalo dwi lawyer, or buffalo criminal lawyers

What should my Criminal Lawyer buffalo NY do if the prosecution does not obtain the indictment results within this time period?

If the prosecution fails to obtain the indictment results, then criminal lawyer buffalo ny must be aware this leads to your release on your own recognizance.

In the case of a misdemeanor complaint, once bail is set, the Prosecution must file a supporting affidavit within 5 day which transforms the complaint to an information. If the prosecution fails to obey the timeline, Criminal lawyer buffalo ny may move for your release on your own recognizance.

What are some ways a Criminal Attorney in Buffalo NY will defend me in court?

Generally, a Criminal Lawyer in Buffalo NY will determine the best approach based on the specific facts involved in the case. criminal lawyer buffalo ny will generally employ a number of strategies.

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What are examples of the strategies employed by a Criminal Defense Attorney Buffalo NY?

A Criminal Defense Attorney Buffalo NY could argue the events alleged to have occurred are either untrue or fail to rise to the burden of proof. A  Criminal Lawyer in Buffalo NY may also challenge the sufficiency of the accusatory instrument through pre-trial motions. Criminal Defense Lawyers in Buffalo NY can specifically argue even if the facts occurred as they are alleged to have transpired, the facts still do not establish the charge.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal defense lawyer buffalo ny,  buffalo dwi lawyer, or buffalo criminal lawyers

Post Arraignment

What should my defense lawyer do after the arraignment?

If your Criminal Defense Attorney Buffalo NY does not accept the plea on your behalf with your consent, then he or she must complete the omnibus motion, file it with the local court, and serve it on the Prosecution within the relevant time periods.

Generally, unless the Criminal Lawyer Buffalo NY has good cause or the prosecution consents to extra time, the  Criminal Defense Attorney Buffalo NY  must file the omnibus motion within 45 days. However, it is prudent to complete the motion within 30 days because several discovery requests require filing and service within 30 days.

Finally, the Criminal Lawyer Buffalo NY must serve the Prosecution at least 8 days before the hearing on the motion. Even if the court provides your Criminal Lawyer Buffalo Ny with a court date which provides the Prosecution with less than 8 days to respond, the court may nevertheless rule the emotion to be procedural defective. Therefore, it is vital for Criminal Attorneys Buffalo Ny to strictly adhere to the time-limits.

What is the difference between a misdemeanor and felony?

Although crimes differ significantly in severity, felony crimes are more serious than misdemeanors. For a misdemeanor, the potential penalties include a monetary fines and no more than 1 year in county jail. In contrast, the penalty for a felony could be more than a year in state or federal prison. Early in the process, your Criminal Defense Attorney Buffalo NY should open up conversations with the District Attorney or Assistant District Attorney and determine the best offer. A felony is certainly more serious than a misdemeanor. That being said, the prosecution does have the flexibility to decide whether to charge the accused as a felony. It is important to recall that a crime such as shoplifting is generally a misdemeanor, unless the party stealing the property manages to steal over $1,000 worth items.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a buffalo criminal attorneys,  buffalo dwi lawyer, or buffalo criminal lawyers

If I was not where the crime occurred at the time the events transpired, can I use this as evidence to defend myself against the criminal charges brought against me?

Yes.  Another strategy Criminal Defense Lawyers in Buffalo NY employ is the alibi defense, under New York’s Penal Law § 25.00(1). A Criminal Defense Attorney buffalo ny may use the alibi defense when the Accused has evidence showing he was elsewhere when the alleged offense took place. Criminal Lawyers in buffalo ny should remember when considering an alibi as a possible defense, certain time requirements must be satisfied.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a buffalo criminal lawyers,  buffalo dwi lawyer, or Criminal defense lawyers buffalo new york

Am I entitled to any information from the prosecution?

You are entitled to obtain “discovery” (information, documents, etc) from the prosecution. The information which your criminal lawyer buffalo ny may seek includes previous statements of witnesses who will testify at trial for the prosecution, reports of laboratory tests, and various other documents. In felony cases, discovery is not required to be furnished until after indictment.

To receive all of this information, your criminal lawyer buffalo ny must make either a written demand or a motion. Counsel for the defense should consider requesting a bill of particulars to shed more light on the charges made in the accusatory instrument.
Also, keep in mind the prosecution is also entitled to discovery under CPL Article 240, which means you may be obligated to provide certain documents to the prosecution.

Again, if you find yourself going through the criminal process, it is very important to consult with a buffalo criminal lawyer

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi cases, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  criminal attorney buffalo ny

 

Are all felonies indicted by the grand jury?

Many felonies are not indicted because the criminal attorney in buffalo new york works out a deal with the District Attorneys Office. Some Criminal lawyer in buffalo ny believe that if a deal is not worked out before the grand jury, the DA’s office may not negotiate offers. However, in many cases, the District Attorney may offer a good deal to an enthusiastic Criminal lawyer in buffalo ny based on the belief that will save precious resources. This is one reason it is very important for criminal attorney in buffalo new york to anticipate the case will go trial. Even if 99 percent of cases do not go to trial, if the prosecutor believes the criminal attorney in buffalo new york is willing to go to trial, then that will likely lead to the best deal.

In some cases, the offer before the Grand Jury may not be as good as an offer later on. One reason for this is because, prior to the Grand Jury, the prosecution may not be very familiar with the facts in the case. Although the prosecutor has likely put together a felony complaint, spoken to investigators, and probably has a general theory of the case, there are nevertheless many facts yet to be confirmed.
In the event that facts emerge which show the accused is either not guilty or less likely to be guilty, clearly, such a situation would warrant a better offer. This situation does arise in certain cases.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

Please be advised, this is not legal advice. For a free consultation, contact a Criminal lawyer in buffalo ny, criminal attorney in buffalo new york, or a Criminal Defense Lawyer Buffalo NY

MOTION PRACTICE

Did buffalo police have probable cause to pull me over and bring a dwi case in downtown buffalo?

What motions should my attorney file if the case is proceeding beyond arraignment?

Criminal defense attorney buffalo ny should bring an omnibus motion. An omnibus motion is a pre-trail motion which includes a number of requests, including, suppression, disclosure, and dismissal.

Criminal defense attorney buffalo new york may eliminate the need for certain requests by agreeing iwth the prosecution on certain matters. This is known as agreeing on a stipulation.

Criminal defense attorney buffalo ny should also keep in mind the court may resolve discovery, suppression, and other hearings and pre-trial issues without an omnibus motion so long as the parties’ rights are not violated.

Should my attorney file the omnibus motion with the county clerk?

Although this may not appear to be a significant issue,criminal defense attorney in buffalo new york, in addition to serving any motion on opposing counsel and the court, criminal defense attorney buffalo ny in a felony case should also file a copy of the motion papers (along with discovery requests with the county clerk’s office.

Criminal defense attorney buffalo ny know by doing this, the filed papers will become part of the record on appeal. This is absolutely vital in all cases, but in particular when some of the disputed issues involve technical legal arguments which could largely depend on the judge deciding the issue.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

Please be advised, this is not legal advice. For a free consultation, contact a Criminal lawyer in buffalo ny, criminal attorney in buffalo new york, or a Criminal Defense Lawyer Buffalo NY

When should criminal lawyers buffalo ny file motions following criminal charges

TIME-LIMITS

I was charged with a felony in a dwi case. When should criminal attorneys in buffalo ny file motions?

Generally, with a felony criminal charge, Criminal Attorney Buffalo New York cannot bring motions until after the defendant is indicted on the criminal charges and then arraigned following the indictment.

The time-periods for a felony criminal charge may be confusing for someone who is not familiar with the criminal law process. For instance, the accused is initially arraigned right after being arrested (oftentimes within 24 hours) and then he or she will be arraigned again following the indictment. What makes the criminal law process even more confusing to individuals who have never gone through the system is that the second arraignment will occur in a completely different courtroom. While the first arraignment is in Buffalo City Court, located in Downtown Buffalo, the arraignment following the indictment is in “superior court” which is either the Supreme Court or the County Court depending on where in New York State.

But getting back to the main point, generally, within the context of felony charges, Criminal lawyer in buffalo ny do not bring motions until after the second arraignment. In fact, a local court is not even able to dismiss a felony complaint under New York’s CPL 30.30, where the grand jury has not acted in over six-months (chargeable to the prosecution).

Now, one of the rare exceptions to the general rule regarding motions not being brought until after arraignment on the indictment, involves a motion under CPL 710.50(1)(b). Criminal lawyer in buffalo ny may bring a pre-indictment motion to suppress evidence. The court does, however, have discretion whether to entertain such a  motion.

Again, if you find yourself going through the criminal process, it is very important to find a Criminal Defense Attorney in Buffalo New York

Please be advised, this is not legal advice. For a free consultation, contact a Criminal lawyer in buffalo ny, Criminal Attorney in Buffalo New York or a Criminal Defense Lawyer Buffalo NY

What time limits related to the alibi defense should an experienced Criminal Attorney in Buffalo NY be aware of?

criminal defense attorney buffalo ny  must keep in mind that an alibi notice is necessary where the accused intends to offer evidence that he or she was absent from the scene at the time when the criminal activities were alleged to have occurred. Under CPL § 250.20, Criminal Defense Lawyers in Buffalo NY must provide the prosecution with the notice eight days after the prosecution’s demand. Generally, criminal defense attorney buffalo ny will be served by the prosecution at the arraignment.

If, on the other hand, the prosecution has not filed a demand for notice of alibi, a  Criminal Defense Attorney Buffalo NY need not respond with a notice of alibi.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or Criminal defense lawyers buffalo new york

Assuming the Prosecution files the demand and the Criminal Lawyer Buffalo ny provides the prosecution with the notice of an alibi, what happens next?

After the Criminal lawyer buffalo ny  serves the alibi notice, the time-limits then shift to the prosecution. Once served, under CPL § 250.20(2), the prosecutor must serve a list of rebuttal witnesses to the Buffalo Criminal Lawyer within ten days before the start of trial.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or Criminal defense lawyers buffalo new york

What if my Criminal Lawyer Buffalo NY serves the prosecution outside the time-limit?

Although an experienced criminal lawyer in Buffalo ny should not assume anything, courts do frequently permit late service of alibi notice. However, if the Criminal Lawyer in Buffalo, NY serves the prosecution late and the prosecution objects to the late notice being served, the prosecution may be entitled to an adjournment. In such a case, the court would likely rule the 30-30 time to be waived during this time period.

If the Criminal Attorney Buffalo NY for the accused fails to provide the prosecution with an alibi notice, it is within the court’s discretion to deny admission of alibi testimony. However, if the Criminal Defense Attorney Buffalo NY establishes good cause for the delay, the court may extend the alibi notice tie period.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or Criminal defense lawyers buffalo new york

Are there any more strategies a Criminal Defense Lawyer Buffalo NY can utilize?

Yes. A Criminal Lawyer in Buffalo NY may utilize at least two additional strategies. First, the Buffalo Criminal Lawyer may argue the police coerced the accused into committing the criminal act. In other words, the Criminal Attorney in Buffalo will assert the accused would not have committed the crime but for the role of the police in the alleged criminal activity.

Finally, a Criminal Lawyer Buffalo NY may also argue the prosecution did not bring charges within the proper statute of limitations, or amount of time by law, therefore, the charges must be dropped. A Criminal Defense Lawyer in Buffalo NY may use this type of challenge in an attempt to obtain a dismissal of the charges against the accused.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

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What is “30-30” time? 

Under New York’s Criminal Procedure Law Section 30.30, generally, a prosecutor must be ready for trial, from the time of arraignment, as follows: (a) six months for a Felony; (b) ninety days for a Class A Misdemeanor; (c) sixty days for a Class B Misdemeanor; and (d) thirty days for a violation.

criminal lawyers buffalo ny  should differentiate between the statute of limitations for criminal charges (the time the prosecutor may bring charges against you arising from an incident) and the time the prosecutor has to “declare trial readiness” (the time when the prosecution must be ready for trial which starts at arraignment).

Criminal defense attorney buffalo ny must keep in mind that not all time “counts” for the purposes of so called “30-30” time. For example, if defense requests an adjournment or the 45 day period to file pre-trial motions, the “30-30 clock” does not run. The manner in which 30-30 time is calculated is quite complex and requires careful documentation.

So, the easy answer to the question above (“how long does the Erie County District Attorney have to be ready for trail for a class a misdemeanor”) is ninety days. However, in practice, if the prosecution does violate CPL 30.30, it is very likely that more than ninety days actually passed, because the 30-30 clock does not always run.

Clearly, criminal law is quite complicated. Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

Is it valid for the prosecution to announce trial readiness despite not being in possession of documents the prosecution intends to present at trial? 

When announcing readiness for trail, the prosecution is not required to produce witnesses instantaneously for the statement to be valid. The prosecution may declare readiness while still gathering additional evidence to strengthen its case. Along these lines, discovery has no bearing on announcing readiness. In other words, the prosecution’s declaration of readiness was not rendered “illusory” because the prosecutor was not yet in possession of forensic evidence and medical records which was intended to be introduced at trial.

It is still important for criminal lawyer buffalo ny to understand that In announcing readiness, the prosecution is indicating its present readiness to actually proceed to trial. For this reason, in contrast to discovery related issues, the prosecutor’s failure to produce the complainant may render a statement of readiness void. Similarly, if the prosecution announces readiness before the arraignment without enough time to arraign the defendant before the lapse of the statutory limitations period, a facially sufficient announcement of readiness is void as illusory.

Clearly, the law is quite complicated. Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

GRAND JURY QUESTIONS

How can my criminal defense attorney find out if the District Attorney in Erie County will indict me within 120 hours of being arrested on criminal charges related to a felony complaint?

Under New York’s Criminal Procedure Law 190.50, a criminal lawyer buffalo ny can serve notice at arraignment that the defendant wishes to exercise his or her rights to testify before the grand jury pursuant to CPl 190.50. Now, if you paid any attention to the question, one may wonder how this relates to what stage the prosecution is at in the indictment process. Keep that thought in mind.

After serving the prosecution with the notice, criminal lawyer buffalo ny should follow up with a phone call to the prosecutor inquiring about when the client’s appearance before the grand jury is scheduled. For the best practice, written or faxed confirmation of any conversation is very good as it provides a record of communications with the State.

So what is the point of this? By providing the prosecution with the notice that the accused intends to testify, the prosecution must notify him of the date the grand jury is held. In other words, criminal attorney buffalo ny will be able to determine whether the prosecution will be able to secure an indictment in time before the 120 hours elapse.

Clearly, the law is quite complicated. Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

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What if the prosecution does not allow me to testify at the grand jury because he never notifies my attorney of when it will take place?

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

If the prosecution fails to allow the accused to testify before the grand jury, the criminal lawyer buffalo ny may move to dismiss the indictment. If the court grants the dismissal, it will be without prejudice. In other words, the prosecution could re-present the case to the grand jury. So long as your criminal lawyer buffalo ny provided the prosecution with adequate notice prior to the presentment to the grand jury, however, the accused would have the opportunity to testify.

It is also possible that the court may grant dismissal, conditioned upon the accused testifying before the new grand jury.  However, to be clear, the obligation of the court to dismiss the indictment is “ministerial” which means the court should not dismiss the indictment with conditions.

Also keep in mind, for purposes of appeal, if you plead guilty, the issue is considered waived for purposes of appeal. In other words, you will not be able to argue he point that you were deprived of the right to testify at the grand jury because once you plead guilty, the matter will likely not be addressed.

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

What qualifies as sufficient notice of the grand jury?

Telephone notification by the prosecutor to your criminal attorney buffalo ny has been held to be sufficient. However, the critical question is whether the prosecution provided you with a meaningful opportunity to testify. Along these lines, offering to allow the accused to testify after the grand jury has voted, or with only a moment’s notice to decide whether to testify is insufficient.

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

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Should I testify at the Grand Jury?

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

In felony cases, whether the accused testifies at the grand jury can have significant consequences. In many cases, there may be good reason for a Criminal lawyer buffalo ny to advise his or her client against testifying. Not only may the testimony be inculpatory (tends to establish one’s own guilt), but the version of the facts told by the accused at the grand jury is forever locked in place. This can be particularly damming given at this pre-indictment stage, the defense has not yet received discovery from the prosecution.

Again, the real danger is testifying is that a statement by the accused made before grand jury can be used by the prosecution at trial as an admission. Criminal lawyer buffalo ny should be wary of this unless the defense has sufficient information about the prosecution’s case. Put another way, it is critical the defense has enough knowledge of the prosecution’s case, so the accused will not testify to things that the defense may want to contradict later in the process. Clearly, this is not a simple issue.

There are also other reasons for your criminal attorney buffalo ny to be concerned about the prospect of you testifying at the grand jury. First, the prosecution could nail down other issues that may arise before and at trial, such as pretrial issues including eliciting an admission from defendant that a statement to the police was made voluntarily, as well as other trial issues like eliminating potential defenses, such as alibi/accused’s presence at the scene, others who were present, and the accused’s knowledge of their actions.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi cases, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  criminal attorney buffalo ny

Criminal Defense Lawyers must know all the factors relevant to sentencing in New York

SENTENCING

Is the complainant in a criminal case able to influence my sentence?

In a case involving a serious crime, the victim has a right, under New York’s Criminal Procedure Law 380.50(2) to be notified and to participate in the sentencing. Where the accused was convicted or plead guilty to a violent felony offense, the victim should be notified by the prosecutor within 60 days of the final disposition of the case.  Under Criminal Procedure Law 440.50(1), a crime victim statement is considered during the parole process.

If the complainant requests, under New York’s Criminal Procedure Law 440.50, the prosecutor must provide the victim with written notice of the final disposition of the criminal case, whether the end result is acquittal, dismissal, or a conviction and sentence.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges in a dwi case or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or Criminal defense lawyers buffalo new york

What is a Pre-Sentence Investigation Report and how do criminal lawyers buffalo ny obtain it?

As criminal lawyer buffalo ny know, the pre-sentence investigation report details the family history, criminal history, work history, medical history, and other general background information involving the accused. A criminal attorney buffalo ny could stipulate in a plea agreement, that the accused agrees to waive the report. That being said, the report could be important in certain criminal cases depending on the particular judge. Some judges may have a desire to learn more about the accused and gain a better understanding of his or her character.

The impact of the report will depend on the information contained in the report and how much time the judge focuses on the material. Some judges may become particularly familiar with the information in the report and will want the accused to provide information which is entirely consistent with the report. As a result, before sentencing in criminal cases such as dwi cases, it is vital for criminal lawyer buffalo ny to carefully read over the report and make sure the defendant is prepared.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or Criminal defense lawyers buffalo new york

Can a New York Court disregard a plea agreement after the defendant, following the assistance of his or her attorney at law and prosecution agree to it in writing?

Please be advised, this is not legal advice. For a free consultation, contact a criminal lawyer buffalo ny or buffalo dwi lawyer today.

Courts in New York usually utilize contract principles in interpreting a plea agreement in criminal cases.

Generally, in criminal defense cases where a guilty plea has been reached by way of an unfulfilled promise, either the plea in the criminal case must be vacated or the promise honored, but the choice will rest within the sentencing court’s discretion.

In dwi cases where the sentencing court chooses to disregard the sentencing promise because of statements expressed in the presentence investigation report, the defendant may be able to enforce the sentence promise where he or she has detrimentally relied on the original sentencing agreement.

An example of “detrimental reliance” in a criminal case could include where the defendant has already testified in another proceeding and that testimony was part of the original agreement. In such a case, a criminal lawyer buffalo ny would most likely be successful in arguing that detrimental reliance occurred.

Keep in mind, however, a criminal court may strictly interpret the terms of a plea agreement and deny “specific performance” of the original contract where there is merely minor noncompliance.

Again, Please be advised, this is not legal advice. For a free consultation in dwi cases, contact a criminal lawyer buffalo ny or criminal attorneys in buffalo new york today.

If I am arrested and criminal charges are filed after I accepted a plea conditioned on not getting arrested, what happens next?

As criminal defense lawyers buffalo ny know, in New York, the defendant may enter into an agreement with the prosecution where the plea bargain and sentence includes a “no arrest condition” prior to being sentenced. The question here is what happens if the defendant is arrested before being sentenced? In other words, if the accused is arrested on criminal charges, does this necessarily mean the agreement is void? What if, for example, it turns out the arrest was a false arrest and the individual did not even engage in any illegal activity?
This criminal law question focuses more on criminal procedure. Namely, the process the defendant is entitled to in criminal cases, including dwi cases, and what the prosecution must put forth to satisfy its burden.

As criminal attorneys in buffalo new york know, an inquiry must be held and the defendant must be granted an opportunity to show the arrest was without foundation. While the Prosecution need not establish the accused’s guilt by the preponderance of evidence, the inquiry must be of sufficient depth so the court can be satisfied, not necessarily of the guilty of the accused, but that there was some legitimate basis for the arrest on the new charge.
Criminal defense lawyers buffalo ny must keep in mind, once this hearing is complete, if the court determines the prosecution has satisfied it’s burden, then the plea deal will be revoked. If, on the other hand, the hearing ends with the court finding no legitimate basis for the arrest on new criminal charges, then the plea deal would remain intact.

Whenever this type of condition is attached to a plea deal in a criminal case, it is very important for criminal defense lawyers buffalo ny to counsel their clients on the importance of not getting arrested prior to sentencing. criminal attorneys in buffalo new york must also be aware that even if the defendant is arrested and new criminal charges are filed and is later found not guilty, the arrest could nevertheless destroy the plea deal, because the evidentiary standard is not whether the defendant actually violated the criminal law, but rather the court must conclude there was “no legitimate basis for the arrest.”

This standard creates the possibility where the accused could be arrested for committing a crime he or she did not commit, but nevertheless the plea agreement will be voided, because police established probable cause for the arrest. As criminal attorneys in buffalo new york know, just because a police officer has probable cause to make an arrest, this does not mean the accused actually violated any part of the criminal law.

Again, if you find yourself facing criminal charges such as a dwi case it is very important to find lawyers in buffalo ny free consultation

Please be advised, this is not legal advice. For a free consultation, contact a Criminal lawyer in buffalo ny, criminal attorney in buffalo ny, criminal defense lawyers buffalo ny

Is a Second Time Felony Offender eligible for a drug treatment program?

Please be advised, this is not legal advice. For a free consultation, contact a buffalo dwi lawyer or criminal lawyer buffalo ny today.

In New York, under New York’s Criminal Procedure Law § 410.91 and Penal Law § 70.06(7), the court may order a sentence which consists of participation in an intensive drug treatment program at a drug treatment camp for a period of 90 days. Once the the 90 day treatment program is completed, the defendant will remain under parole supervision for the balance of the sentence.

This particular provision only applies to specific offenses which include some Class D or Class E felony offenses. In particular, an offender will most likely be eligible where the crime was drug related.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as dwi cases contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  dwi defense lawyer buffalo ny

Are there any negative consequences related to an Adjournment in Contemplation of Dismissal?

Generally, within the criminal law, an adjournment in contemplation of dismissal mirrors a not-guilty verdict. However, there are several important distinctions. First, an ACD will likely prvent the accused’s ability to sue for malicious prosecution. On the other hand, a  Criminal Defense Attorney Buffalo NY should still be able to sue for wrongful arrest or excessive force.

Additionally, the criminal charges are not dismissed until after the adjournment period, which could last for up to a year. During this time, the accused will have a criminal case pending which could impact his or employment or immigration status. As an aside,  Criminal Defense Attorney Buffalo NY  should keep in mind that even if the criminal case ends with a not-guilty verdict, it will likely take almost as long to reach the final verdict. Therefore, unless the defendant has a desire and a good case to make against the police, an adjournment in contemplation of dismissal is a good resolution.

Does the punishment for a felony sentence vary according to the criminal law?

Criminal lawyers buffalo ny should know that under the criminal law, felony sentences vary in length according to the severity of the crime. An “A” felony is the most severe and the lowest level of a felony is an “E” felony. The criminal law establishes that felonies are graded according to whether they are violent as defined under Penal Law 70.02. Criminal Lawyers Buffalo ny must also keep in mind the judge will consider the accused’s past criminal history. Criminal lawyer buffalo ny must pay particularly close attention to New York’s statutory scheme which lays out the sentencing in Penal Law 70.00 (first time offender), Penal Law 70.04 (second time offender), and Penal Law 70.08 (persistent felony offender).

What is a Definite Sentences?

Within the context of criminal law, definite sentence is for a flat one number length of time but must be for one year or less. Criminal lawyers buffalo ny should know, under Penal Law 70.00(4), definite sentences may be imposed for misdemeanors and are frequently known as misdemeanor sentences but they can also be imposed for criminal cases involving felonies such as fourth degree grand larceny.

In particular, determinate sentences are imposed for violent felony offenses and, pursuant to New York’s drug law amendment, they are also imposed for drug offenses.

Under New York’s Penal Law 70.30.4 (b), a prisoner may earn good tie credit for up to 1/3 of the term. While most definite sentences are served at one continuous time, under New York’s Penal Law 85, it is also possible to serve a definite sentence as an intermittent (often imposed as a “weekend”) sentence.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi cases, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  dwi defense lawyer buffalo ny

What is an Indeterminate Sentence?

Indeterminate sentences are imposed for some non-violent felonies, such as fourth degree grand larceny, and they have a minimum and maximum term. For instance, a particular sentence may be 3 to 6 years. Under New York’s Correction Law 803(1)(b), as Criminal lawyers buffalo ny know, a prisoner can get up to 1/3 of the maximum term of an indeterminate sentence reduced as good time.

A particular example may be 2 to 6 years. Within the context of a 2 to 6 year sentence, the parole release hearing for possible release will occur at 2 years.  Good time is possible 1/3 of maximum term or 2 years and release on conditional release at 4 years. The accused will remain on parole until the maximum of the sentence.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi cases, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  dwi defense lawyer buffalo ny

What is “merit time” and how does this relate to indeterminate sentences?

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

Under the “merit time” provision, early release consideration may be granted to inmates meeting certain criteria. Inmates meeting these criteria for early release consideration are eligible for a Parole Board interview. It is critical to speak with a criminal lawyer buffalo ny for more information and to determine if you qualify.

If you are serving an indeterminate sentence in New York and meet the criteria below,  you could qualify for a Merit Time allowance equal to one-sixth of your minimum term. This allowance is then applied to your minimum term to determine when you would be eligible for early release.

For example, if you were serving an indeterminate sentence with a minimum term of six years, your Merit Time allowance would equal one year. When this allowance is applied to your minimum term, you would be eligible for early release by the Parole Board after serving five years.

To qualify for this allowance, you must be sentenced to an indeterminate term with a minimum of more than one year

If your crime of conviction does not fall within any of the above categories, to qualify for Merit Time, you must also have successfully participated in a work or treatment program assigned pursuant to Correction Law and have accomplished the conditions laid out in New York’s Correction Law, including, earned a GED, acquired an ASAT certificate, earned a vocational trade certificate after six months of vocational programming, or performed 400 hours of community service on a work crew.

Criminal lawyers buffalo ny must keep in mind that merit time may be withheld if a serious infraction is committed during the period of incarceration.

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

What is Restitution within Criminal Law? 

Please be advised, this is not legal advice. For a free consultation, contact a  Criminal Defense Lawyer Buffalo NY or Criminal Defense Attorney in Buffalo New York

Broadly speaking, restitution is court-ordered payment to victims of a crime. Courts in New York will generally award restitution in cases where the victim experiences financial loss as a result of the crime. The purpose of restitution is to make the victim whole again and prevent the convicted from being unjustly enriched.

Criminal Defense Attorney in Buffalo New York should be aware of the various forms of restitution, including, (1) paying the value of artwork which was destroyed; Covering the costs of medical care for someone you punched; Paying for costs related to a funeral where an individual died as a result of intentional or negligent intent; returning stolen items; or paying back their value.

Criminal Defense Attorney in Buffalo New York should also advise clients the victims entitled to restitution do not necessarily need to be persons. It is also possible for businesses to be eligible for restitution, and the general public, in the case of welfare fraud, may also be considered a victim who is eligible for restitution. In the case of welfare fraud, or another crime within the “crimes against society” type, the payment would likely be placed in a state restitution fund.

Again, if you find yourself going through the criminal process, it is very important to find a Criminal Defense Attorney in Buffalo New York

Please be advised, this is not legal advice. For a free consultation, contact a Criminal lawyer in buffalo ny, Criminal Attorney in Buffalo New York or a Criminal Defense Lawyer Buffalo NY

What are the Sentencing Possibilities for Criminal Impersonation in the Second Degree under Penal Law 190.25?

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

Criminal attorneys buffalo ny, like with any other conviction, must keep in mind that when it comes to the possible sentences, there are a number of variations. For instance, under Penal Law 60.01(3)(a) and 70.15(1), a definite sentence of imprisonment may be imposed for up to 1 year. On the other hand, under Penal Law 60.01(2)(a)(ii) and 85.00, it is also possible the court could sentence one to intermitted imprisonment For any  term that could be imposed as a definite sentence, if the court is not imposing any other sentence of imprisonment upon the defendant at the same time, and if the defendant is not under any other sentence of imprisonment having a term in excess of 15 days imposed by any other court.

Criminal attorneys buffalo ny should also know the sentence could, alternatively, be a “split sentence” which would include both imprisonment and either 2 or 3 years of probation or 1 year of conditional discharge. Under Penal Law 60.01(2)(d) and 65.00(3)(b)(I), the imprisonment may be either a definite sentence of imprisonment of up to 60 days, or intermittent imprisonment of up to 4 months.

If the person is convicted satisfies the conditions, it is also possible her or she could receive probation for 2 or 3 years if (i) institutional confinement for the term authorized by law is or may not be necessary for the protection of the public, (ii) the defendant is in need of guidance, training or other assistance which, in his case, can be administered through Probation supervision, and (iii) such disposition is not inconsistent with the ends of justice.

On the other hand, if the defendant agrees to participate in a treatment program, he or she could receive interim probation for up to one, which could be extended for an additional years.

Criminal attorneys buffalo ny should inform their clients of the possibility that the court could sentence defendant to either a conditional discharge (no jail time but several conditions attached, possibly related to a treatment program) or an unconditional discharge (no jail time and no conditions attached).

Clearly, it is difficult to predict what the result will be. In terms of fines, it is possible, under Penal Law 60.01(2)(c), Penal Law 60.01(3)(b), Penal Law 60.01(3)(c), and Penal Law 80.05, the defendant will be fined up to 1,000 dollars or double the defendant’s gain from the crime may be imposed by itself or in addition to imprisonment, intermittent imprisonment, probation, or conditional discharge.

The defendant must also pay a mandatory surcharge of 175 dollars (or 180 dollars if the proceeding is in a town or village court) and a crime victim assistance fee of 25 dollars, unless restitution or reparation has been made. Unless a jail term in excess of 60 days is imposed, a town or village court may, and all other courts shall, issue a summons directing the defendant to appear in court in 60 days if the mandatory surcharge remains unpaid.

If a victim is seeking restitution or reparation, the court may consider additional restitution, but must state the reasons on the record. If restitution is ordered, the amount will be increased by a 5 percent surcharge that goes to the collection agency. An additional surcharge of up to 10% may be collected upon the filing of an affidavit by the collecting agency and approval by the sentencing court. Penal Law 60.27(8); CPL 420.10(8). In almost all cases the collecting agency will be the local County Probation Department.

Finally, A 50-dollar DNA databank fee must be imposed in addition to the mandatory surcharge and crime victim assistance fee. And after sentencing the defendant must provide a DNA sample for the state DNA identification index.

Clearly, criminal law is quite complicated. Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

Post-Sentence 

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

What is a Presumptive Release??

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

Under New York’s Correction Law, the Department of Correctional Services has the authority to grant presumptive where a party has served the prescribed term of his or her indeterminate sentence. Criminal lawyers buffalo ny should know the Board of Parole has the authority to establish the conditions of release.

If a person was convicted of any of the following crimes, he or she will not be eligible for presumptive release:

  • An A-1 felony offense;
  • A Penal Law Sec. 70.02 violent felony offense;
  • Manslaughter 2nd degree;
  • Vehicular manslaughter 1st and 2nd degree;
  • Criminal negligent homicide;
  • Penal Law Article 130 or 263 offenses; or
  • Incest.

If an ex-offender meets the criteria for presumptive release along with meeting the criteria for Merit Time, then it’s possible he or she may be entitled to release at the expiration of the five-sixths of your minimum term or aggregate minimum term. It is very important to consult your criminal lawyer buffalo ny for more information.

What is the Post-Release Supervision Agreement?

After a person is sentenced to post-release supervision, the Board of Parole is charged with establishing and imposing the condition of post-release supervision. The accused then signs the document with the conditions listed which transforms the agreement into a legally binding obligation.

It is important for the accused to have a Criminal Lawyer Buffalo NY represent him or her at the hearing and examine the agreement to make sure the accused is capable of satisfying the conditions imposed.

Once accused of violating the Post-Supervision Agreement, what happens next?

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

Once a person is accused of violating a condition of post-release supervision, prior to any finding of guilt, the accused is entitled to a hearing and determination process under New York’s Executive Law 259-I. This process requires the Parole Board to provide sufficient evidence to establish, by the preponderance of the evidence standard, a condition of the post-supervision agreement was in fact violated. In response, the accused will have the opportunity to cross-examine witnesses, introduce evidence refuting the evidence or provide mitigating factors.

Because of the nature of the proceedings, it is very important for the accused to have his or her liberty interests protected by a Criminal Attorney Buffalo NY. Contact lawyers in buffalo ny free consultation

What happens if a person on parole violates a condition of the agreement?

Criminal Defense Lawyer in Buffalo New York understand f the accused violates any of the conditions of post-release supervision, he or she may be subject to an additional period of imprisonment of at least six months and up to the balance of the remaining period of the post-release supervision which cannot exceed five years. Again, it is vital to at least consult with a Criminal Defense Lawyer in Buffalo NY before proceeding with the hearing. Ideally, it is advisable to hire an attorney who will prepare a vigorous defense and refute any false allegations.

Ideally,  Criminal Defense Attorney Buffalo NY should try to come to an agreement with the probation officer to avoid the violation. However, if the probation officer violates the accused and the case goes to a hearing,  Criminal Defense Attorney Buffalo NY must be prepared to argue for an appropriate alternative to revocation.  Criminal Defense Attorney Buffalo NY must pay particularly close attention to any false allegations. If at all possible,  Criminal Defense Attorney Buffalo NY should anticipate the evidence that will be used against the accused and look for flaws.

Although going through the revocation process is not ideal, if a criminal case is also ongoing, a  Criminal Defense Attorney Buffalo NY can use the revocation hearing as an opportunity to confront the accuser in an informal setting without a lawyer present. This opportunity provides the  Criminal Defense Attorney Buffalo NY with the chance to measure the state’s case and come to a conclusion regarding the veracity of the testimony.

If you have a question, contact a  Criminal Defense Attorney Buffalo NY or a Criminal Lawyer Buffalo NY today.

What is the role of the  Criminal Defense Attorney Buffalo NY at the Parole Hearing?

Ideally,  Criminal Defense Attorney Buffalo NY should try to come to an agreement with the probation officer to avoid the violation. However, if the probation officer violates the accused and the case goes to a hearing,  Criminal Defense Attorney Buffalo NY must be prepared to argue for an appropriate alternative to revocation.  Criminal Defense Attorney Buffalo NY must pay particularly close attention to any false allegations. If at all possible,  Criminal Defense Attorney Buffalo NY should anticipate the evidence that will be used against the accused and look for flaws.

Although going through the revocation process is not ideal, if a criminal case is also ongoing, a  Criminal Defense Attorney Buffalo NY can use the revocation hearing as an opportunity to confront the accuser in an informal setting without a lawyer present. This opportunity provides the  Criminal Defense Attorney Buffalo NY with the chance to measure the state’s case and come to a conclusion regarding the veracity of the testimony.

If you have a question, contact a Criminal Defense Attorney Buffalo NYor a Criminal Lawyer Buffalo NY today.

Once a Probation Officer determines that a condition of probation was violated, what happens next?

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

In New York State, first, the probation officer must submit to the court a request for a declaration of delinquency. Once received, New York courts must make a  decision within seventy-two  hours of receiving the paperwork.

If the declaration of delinquency is appropriately filed, the court must take reasonable and appropriate action to cause the Defendant to appear so the court may make a final determination as to whether there is reasonable cause to find a condition of probation was violated.

In considering “appropriate action” to notify the defendant of the hearing, the court may order defendant’s appearance in the form of a written notice. The notice must specify the time and place of appearance and it can be served personally on the Defendant, by mail, or as the court may direct.

In the absence of a warrant issued, in the case where a probation officer submits a violation petition and report, the court will promptly consider the petition, and where the court issues a notice to appear, the court must direct the defendant to appear within ten business days of the court’s order.

Alternatively, when the order is in the form of a notice, Defendant’s failure to appear as ordered without providing reasonable cause will constitute a violation of the conditions of the sentence regardless of whether the condition is stipulated in the probation agreement.

Under New York law, If  at  any  time  during  the period of a sentence of probation or of a conditional discharge, the court is provided reasonable cause to believe the defendant violated one of the conditions of the sentence, it may  declare  the defendant delinquent and file a written declaration of delinquency.

Furthermore, criminal lawyer buffalo ny must know even if a person is found not guilty of a charge, a court may nevertheless find reasonable cause to support a finding that a condition of probation was violated.

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

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Can a criminal conviction be expunged in New York?

Unfortunately, New York is not one of the 40 states in the United States which has a procedure for expunging the criminal records of an adult who was convicted of either a misdemeanor (Punishable by up to a year in jail) or a felony (Punishable by longer prison terms). Even if you did not spend any time in jail or received a conditional discharge, a full expungement is not available.

The only exception is for youthful offender who were under the age of 19 at the time the crime was committed. For youthful offenders, there are special procedures for expunging some criminal records.

Generally, violations are wiped out automatically after the passage of a certain amount of time. This includes minor traffic infractions and possibly disorderly conduct.

As criminal attorney buffalo ny know, sealing, on the other hand, is a more widely available alternative to expungement. Unlike expungement, however, sealing does not obliterate all records which result from the filing of criminal charges. Instead, expungement restricts who may access the records from the criminal case. In some criminal cases, such as where the criminal case results in a conditional discharge, the sealing can be reversed, or even temporarily unsealed if a court orders it.

Nevertheless, sealing is very important. In some criminal cases, it is automatic (following an adjournment in contemplation of dismissal or if the prosecutor refuses to go forward with the criminal case). In other criminal cases, it is within the discretion of the court. For example, for persons who successfully complete a treatment program and any jail sentence, the court has discretion to seal the records.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

What is a certificate of relief from civil disabilities and what does it do?

 

Under New York’s Corrections Law §§ 700–703, a defendant who has been convicted of a crime, but who has not been convicted of more than one felony, may be granted a “certificate of relief from civil disabilities.”

If an application submitted by your criminal attorney in buffalo ny is granted a certificate of relief from disabilities prevents forfeitures which automatically arise upon the conviction of a crime. This includes preventing forfeiture of a pistol license, a license to to practice medicine, and a number of other forfeitures related to state employment.

Even if granted, however, a certificate of relief from civil disabilities will not prevent an agency from considering the criminal conviction within its discretion to hiring personnel.

Criminal Attorney Buffalo NY must be aware that both the sentencing court and the parole board have the authority is grant a certificate of relief from civil disabilities. Before granting the certificate of relief from civil disabilities, however, either entity must find the relief is consistent with the defendant’s rehabilitation and the public interest. A certificate of relief from civil disabilities may be issued by a court either at the time of sentence or following an application made to the sentencing court.

Prior to granting the certificate of relief from civil disabilities, the court may order an investigation by the probation department. Reports submitted within the context of the investigation are confidential, however, the court may order such reports to be disclosed. Before the court decides to issue a certificate, a copy of the report will be provided by the court to the applicant’s attorney, or the person applying if he or she is not represented by an attorney.

Also note, when a court imposes a “revocable” sentence in a criminal case, which is a conditional discharge or probation, and issues an accompanying certificate, the certificate is temporary until the court’s authority to revoke the sentence has terminated. During this time, the certificate may be revoked for violation of the conditions of the sentence, for example, if the defendant is imprisoned in a state facility. In relation to certificates issued by the Parole Board, the certificate is revocable so long as the defendant’s parole remains revocable.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

Within the context of probation, what is a Declaration of Delinquency?

Criminal lawyer buffalo ny should know under New York law, If  at  any  time  during  the period of a sentence of probation or of conditional discharge, the court is provided reasonable cause to believe the defendant violated one of the conditions of the sentence, it may  declare  the defendant delinquent and file a written declaration of delinquency.

Furthermore, criminal lawyer in buffalo ny must know even if a person is found not guilty of criminal charges, a court may nevertheless find reasonable cause to support a finding that a condition of probation was violated.

Criminal lawyer buffalo ny must be aware of possible procedural defects to adequately safeguard the rights of the client. For example, in a criminal case, before the court decides on whether reasonable cause is present, however, the probation officer must submit to the court a request for a declaration of delinquency. Once received, New York courts must make a  decision within seventy-two  hours of receiving the paperwork. Once the declaration of delinquency is appropriately filed, the court must take reasonable and appropriate action to cause the Defendant to appear so the court may make a final determination as to whether there is reasonable cause to find a condition of probation was violated.

In considering “appropriate action” to notify the defendant of the hearing, the court may order defendant’s appearance in the form of a written notice. The notice must specify the time and place of appearance and it can be served personally on the Defendant, by mail, or as the court may direct.

In the absence of a warrant issued, in the case where a probation officer submits a violation petition and report, the court will promptly consider the petition, and where the court issues a notice to appear, the court must direct the defendant to appear within ten business days of the court’s order.

Alternatively, when the order is in the form of a notice, Defendant’s failure to appear as ordered without providing reasonable cause will constitute a violation of the conditions of the sentence regardless of whether the condition is stipulated in the probation agreement.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

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MISCELLANEOUS

What do I do if I am subpoenaed to testify in a criminal case and I don’t want to?

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

Generally, in criminal cases, you must testify as the court orders. However, every person has the Fifth Amendment constitutional right against self-incrimination. If there is any possibility in a criminal proceeding that you will be asked a question where a truthful answer might later be used to justify filing criminal charges against you later on, then you should be excused by the judge. In criminal cases, some judges will excuse a witness entirely, while others will only prohibit certain questions from being asked. It is important to schedule a free consultation with a criminal lawyer buffalo ny who understands the area of law and how it applies to the facts in your case.

Again, the most important thing is that you need to show up because a subpoena is a court order, even if signed by an attorney or court clerk instead of a judge. Ideally, you should consider hiring an Affordable Lawyers in Buffalo NY

If you violate a court order to appear, the court may find you in criminal contempt of court. In some criminal cases, it could be worse. Furthermore, keep in mind, if you are ever arrested in a future criminal case, the fact that you were found in contempt could be used by the prosecution to set a high bond or deny bond entirely.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

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What is criminal contempt and what are the consequences?

Please be advised, this is not legal advice. For a free consultation, contact a criminal attorney buffalo ny or criminal lawyer buffalo ny today.

Under New York’s Penal Law Article 215, there are four types of contempt adjudications : summary criminal contempt, summary civil contempt, non-summary criminal contempt and non-summary civil contempt.

Criminal contempt is the willful violation of a court order or mandate. The maximum punishment is 30 days in jail or $1,000 fine, or, in rare cases, both. Under Corrections Law 804, a summary criminal contempt adjudication is not a definite sentence, therefore, no “good time” credit accrues.

Civil Contempt, on the other hand, is the violation of a court order that prejudices the rights of a party. The maximum punishment is a $250 fine payable to the party aggrieved and actual damages, or six months in jail, or both. Under New York’s Judiciary Law 753, 754, and 756, civil contempt is described in greater detail. The party seeking civil contempt may be entitled to attorneys fees. In a child support proceeding, if the judge or magistrate initially rules the violation of the order was willful, then the accused will likely serve jail time which cannot exceed six months. For this reason, you are entitled to speak with a criminal defense lawyer and have a criminal lawyer represent you at the hearing.

The court may choose to hold a witness, a criminal defense lawyer, a spectator, or a prospective juror in contempt.

Contempt proceedings are particularly common in Erie County Family Court where the process is streamlined and made easier. While this has made it easier than ever before to obtain a contempt charge in certain situations, many claim the system requires greater protections to protect the individual’s lie. in the opposite direction which has resulted in the growing perception that some additional safeguards may be needed.

Also keep in mind, while the court may order sanctions sua sponte, if a judge improperly uses the criminal contempt power, he or she may be disciplined.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

MISC.

Can parental rights be terminated while a parent is serving a prison sentence?

If you are incarcerated for six months or more, it is very important to maintain communication with your children or else a court could rule that you abandoned your children which could lead to the termination of parental rights.

Many Family Lawyers Buffalo are familiar with the New York Case, In re Ulysses, the father had argued that the six month statutory abandonment period could not include the two months during which he had been confined to the county jail. The Appellate Division held the father was presumed to have been able to communicate with his child and the agency during his incarceration. The Court of Appeals affirmed.

Family Lawyer Buffalo NY should be aware other cases have held that even an incarcerated parent who is illiterate is able to communicate with his/her child and the agency. In another case, In re Stella B, the Family Court denied an incarcerated father’s motion to dismiss an abandonment proceeding. The father argued his incarceration had rendered him unable to visit and communicate. The court found the father had not made all possible efforts to communicate with his child and the agency, even though the agency had refused to provide him with visitation at the prison, and his illiteracy had prevented him from writing letters. The court stated that the father had had access to other forms of communication. It is not clear from the court’s opinion, however, what other forms of communication were open to the father. The court held that the issue would be addressed at the fact-finding hearing.

Child Custody Attorney Buffalo NY should also recall another New York case, in In re Starr L.B., where the father argued that he was unable to visit and communicate with his child. Specifically, he contended he was functionally illiterate and therefore unable to write to his child or the agency; financially unable to purchase or send gifts; and unable to telephone his child, because he did not know the foster parents’ telephone number.

In this case, the father also argued he maintained indirect contact with his child through the paternal grandparents. Although the father had not had any direct contact with the agency or his child, the paternal grandparents had visited with the child regularly and had given the child gifts. The grandparents had also, at the father’s request, asked the agency to provide the father with visits. The agency had told the grandparents that the father would have to contact the agency himself to make this request, but the father had not done so.

In the end, the court rejected both arguments.  With respect to the argument that the father had been unable to communicate with the agency and his child, the court noted that the father had not made any contact in more than three years. The court also noted that the father had managed to make regular phone calls to the paternal grandparents during the time in which he claimed to have been unable to maintain telephone contact with the agency. The court found that the father could have, while in prison, telephoned the agency since he knew the telephone number of the agency and had the name of his previous caseworker. He could also have made a direct request to the agency for visitation. In addition, he had appeared in Family Court in a proceeding concerning his child, and he could have taken the opportunity then to talk to the agency caseworker, ask about his child and arrange for visitation, but he had not done so. The court also noted that even if he were illiterate, he could have asked the grandparents, the prison chaplain, or his prison counselor to help him write letters. Finally, the court found that even if he were indigent, in three and one-half years he could have come up with the money at least to send a birthday card to the child through the prison mail.

With respect to the argument that the father had satisfied his duty to communicate with the child and the agency by indirect contact through the paternal grandparents, the court found that the grandparents had not been acting as the father’s agent, because they had not been acting at his behest. The grandparents had been acting out of their own love and concern for the child. The court noted that the father had never taken any affirmative steps, by, e.g. purchasing gifts for the grandparents to send to the child.

Finally, even where a parent communicates with his/her child while in prison, the parent may be found to have abandoned the child on the basis of post-incarceration conduct. In In re Vunk, the court held that the father had abandoned his daughter where, for seven months following his release from jail, the father had made no contact with his daughter other than to send her Thanksgiving and Christmas cards. The father had maintained regular contact with his daughter while he was in jail. The court suggested that the finding of abandonment would not have been warranted had the father at least written to his daughter or telephoned the child care agency to inquire about his daughter following his release from jail.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

What is a subpoena?

A subpoena is a legal document that requires you to give information or testimony in court. One type of subpoena requires you to appear in court to testify and the other requires you to provide records to the court, such as documents, audiovisual recordings, or other physical evidence. Although Criminal Defense Lawyer Buffalo NY use subpoenas primarily for civil matters, like personal injury cases or divorces, they are also used in criminal cases.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  buffalo dwi lawyer, or Criminal defense lawyers buffalo new york

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Do I need to testify if I am served a subpoena?

When you receive a subpoena, you literally have a command with the force of the court to appear as stated. This is why in most places only a buffalo criminal lawyer may issue a subpoena. The question often arises whether the person receiving the subpoena must appear.

First of all, look at the bottom of the subpoena, there should be a name and telephone number identifying the Buffalo Criminal Lawyers who issued the subpoena. Call the Buffalo criminal lawyer and ask whether this is really going to go forward. Or, if work is a major conflict, ask whether the appearance can somehow be rescheduled.

If the subpoena is for a deposition, these can often be rescheduled. If it is a trial, these do not always go as planned and your appearance can be scheduled so that you are not sitting around all day doing nothing waiting. The best case scenario, which may not always fit your circumstances, is if you are a relatively short distance from the court, you can be put on cell phone standby.

Employers needs to understand that if an employee has been subpoenaed to appear in court, the failure to go can result in a finding of contempt of court. In some circumstances this can lead to imprisonment. It is a public policy violation for an employer to not recognize an employee’s duty to go to court when subpoenaed.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

Please be advised, this is not legal advice. For a free consultation, contact a criminal defense attorney buffalo ny, criminal lawyer buffalo ny, Criminal defense lawyers buffalo ny, or Buffalo dwi lawyer.

Can a criminal defense lawyer use a subpoena to acquire certain documents?

Buffalo dwi lawyer may serve a subpoena to secure testimony of a witness, or physical evidence when its existence is known, under New York’s CPLR 2306 and CPL 2307.  However, under New York Law, the material cannot be within the prosecution’s possession at the time of the criminal trial. Material produced in response to a subpoena do not leave the court.

Under New York’s CPL 610.25(2), documents obtained by a subpoena deuces tecum may be made returnable before the date set for trial. The Buffalo dwi lawyer may inspect the evidence that has been subpoenaed into court.

A subpoena can be a very useful tool especially in light of the fact that the People are under no obligation to provide disclosure of information or evidence which is not in their possession.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

What is the difference between a Subpoenas duces tecum and ad testificandum?

criminal lawyer buffalo ny know, generally, a subpoena is issued in one of two scenarios: either the party serving the subpoena wants to have evidence produced in court during the criminal case or the party wants someone to testify in court. Criminal lawyer buffalo ny should know the right to compulsory process guaranteed by the U.S. Constitution extends to the production of documents as well as to live witnesses.

In the first situation, the subpoena will direct the witness who possesses the evidence sought to appear at trial and to bring the evidence along (the subpoena duces tecum). This person’s testimony may be request as well, for example, where that person must identify or authenticate the evidence.

In the second situation, the subpoena simply directs the witness whose testimony is sought to appear at trial to testify (subpoena ad testificandum).

Generally speaking, a subpoena duces tecum is not used for the purpose of discovery, or to discover the existence of evidence. The primary purpose is usually to compel production of specific documents.

Criminal lawyer buffalo ny should know the parameters which exist when using the subpoena. Specifically, a subpoena cannot be used to circumvent discovery restrictions.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

Please be advised, this is not legal advice. For a free consultation, contact a buffalo dwi lawyer, criminal lawyer buffalo ny, Buffalo dwi lawyer, or Criminal Attorney Buffalo NY

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What is the process for issuing a subpoena?

Criminal lawyer buffalo ny should know the subpoena power may be exercised by the court, the prosecutor or defense counsel. Generally, under New York Laws CPL 610.20 and CPLR 2302, a subpoena may be issued by either the court where the criminal case is pending, or by the buffalo dwi lawyer Service of process in a criminal case may be performed on any day, including a Sunday.

A subpoena may be issued in an administrative proceeding as well.

Regardless of the timing, when serving the subpoena Criminal lawyer buffalo ny must serve two copies of the subpoena duces tecum. Under CPLR 2301, the subpoena duces tecum should state “all items delivered to the court pursuant to this subpoena shall be accompanied by a copy of this subpoena.”

Criminal lawyer buffalo ny should remember a subpoean duces tecum, within the context of a criminal case, is not returnable to the Criminal lawyer buffalo ny law office but rather to the court. In a criminal case, the court may allow buffalo criminal defense attorneys to then remove the documents from the courthouse and inspect them. The Criminal lawyer buffalo ny issuing the subpoena in the criminal case may include a letter requesting a courtesy copy of the record be provided to the office of the criminal attorney.

In most criminal cases, Criminal lawyer buffalo ny may issue the subpoena . However, Criminal lawyer buffalo ny may also present the subpoena to the court to be “so ordered.” Although Criminal defense lawyer buffalo ny are not required to complete this step, it is the best practice because, under CPLR 2308(a) the subpoenaed party who does not respond may be subject to contempt.

Again, if you find yourself going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

Please be advised, this is not legal advice. For a free consultation, contact a  buffalo dwi lawyer, criminal lawyer buffalo ny, Buffalo dwi lawyer, or criminal attorney buffalo new york

FAMILY LAW FAQ

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Before marriage

When am I able to remarry?

Before a person can legally remarry in the State of New York, following initiation of proceedings by your lawyers in buffalo ny  a judge must sign a judgment that contains the court order for the dissolution of marriage along with the precise terms of the divorce. Once the judgment is signed, the court clerk enters the judgment into the court record and a person may safely remarry.

What is a prenuptial agreement?

A prenuptial agreement is a contract between you and your future spouse. The prenuptial agreement is entered into before marriage.

In the prenuptial agreement, a Family Lawyer Buffalo NY drafts an agreement between you and your spouse which reveals the details of your individual finances and property owned before getting married. Afterword, you establish the rights and responsibilities each of you will have during the marriage and how you will divide your money and property in the case of divorce or the death of one or both of you.

Although New York law determines how property is divided if a marriage ends in death or divorce, a prenuptial agreement allows you and your spouse to take control over your property and assets and determine the best way to divide your property. In other words,  so long as so long as the prenuptial agreement, drafted by your Family Lawyer in Buffalo NY, is valid, New York law respects the agreement.

Should I consider a prenuptial agreement?

There is nothing to lose in calling a buffalo lawyer for a free consultation, however, in five specific situations prenuptial agreements are particularly important.
(1) if you have substantial assets;
(2) if you are looking to marry for the second or third time and may be a little nervous;
(3) if the idea of divorce is frightening to you and if that possibility were to occur you prefer the process be simplified;
(4) if you are due a significant inheritance; or
(5) if you have a stake in a partnership.

In these five situations, a divorce could have a serious, financial-shattering impact. It is very important to consult with a  buffalo lawyer.

If the worst-case scenario does occur and the marriage tragically ends, a prenuptial agreement could mitigate the damage that would have otherwise been done to your finances.

What are the requirements for a valid prenuptial agreement?

In drafting a prenuptial agreement, a criminal attorneys in buffalo new york must make sure it is properly acknowledged or witnessed. Proper acknowledgement establishes the identity of the people signing the agreement. Additionally, the added formality encourages people to carefully reflect before agreeing to the provisions of the agreement.

Furthermore, even if the buffalo lawyer makes sure the prenuptial agreement is properly acknowledged or witnessed and contains all the necessary formalities, courts in New York may nevertheless decide the agreement is unenforceable in four particular situations:

(1) if there is any evidence that either party was coerced into agreeing;
(2) if either party failed to fully disclose his or her finances;
(3) if either party lacked independent counsel; or
(4) if the provisions within the prenuptial agreement are so unfair that it is considered unconscionable.

In each of these four situations, a New York court will make a decision based on the totality of facts and circumstances. It is very important to consult a Family  Lawyer Buffalo NY to make sure the requirements are satisfied.


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before starting divorce process

What if my Spouse does not agree to sign the divorce papers?

Under New York Divorce Law, both parties do not need to sign anything to obtain a divorce. One option is to file and receive a default judgment. In a divorce, under New York Divorce law, the party seeking a divorce must personally serve the opposing spouse with at least the Summons.

Once your criminal attorneys in buffalo new york serves your spouse, there is a certain time frame when your spouse must respond. If your spouse does not respond within the time frame, your criminal attorneys in buffalo new york can move forward to take the divorce on default. However, the process for default judgments in New York is slightly different than other civil cases.

The best option is to retain a criminal defense attorney buffalo ny who can navigate the process which often becomes complicated.

Please be advised, this is not legal advice. For a free consultation, contact a Criminal lawyer in buffalo ny, criminal attorney in buffalo ny, criminal defense lawyers buffalo ny

When and how should I tell my children about the divorce?

This conversation is understandably difficult, but also very important. Although this conversation is not within the general expertise of most lawyers, certain considerations are nevertheless important.

The conversation is dictated largely by the age of the child and the overall situation. For younger children, because they do not have as good of an understanding of time, less notice is needed. For instance, explaining to a pre-school age child that his father will move out in several weeks may be sufficient. On the other hand, an older child will need more time to adjust so it is important to provide the older child with a few months advanced notice.

Regardless of the age, it is very important that you are in a position where you can sit down and talk to your children in a calm manner. Children may have many important questions such as where are they going to live, where will the pets live, and why is the divorce happening. Before initiating the conversation, it is very important that you can comfortably and calmly answer these questions.

Ideally, it is also important for both parents to tell the children about the divorce. Although there is a temptation to reveal the legitimate grievances that led to the divorce, if possible, it is important to convey the message to the children in a united front. However, if you fear your spouse or if there is a history of domestic violence, then the safety of yourself and your children must be prioritized above everything else. In such cases, conveying the message to the children as a united front is simply not possible.

If it is not possible to deliver this message as a united front and you believe a contentious custody battle is on the horizon, it is vital to contact a Family Lawyer Buffalo NY for legal advice on how to proceed.

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during the divorce process

Temporary Agreement

During the divorce, Should my Attorney in Buffalo NY draft a temporary agreement about where the kids will live during the divorce process?

Yes. At the beginning of the divorce process, it’s important for your Family Lawyer Buffalo NY to come up with a temporary agreement about how you will share time with your kids. It is important to complete this agreement as soon as possible to ease your children’s insecurity.

New York law requires the agreement to be in writing and state the arrangement is temporary. If the language indicating the arrangement is temporary is not included, there is a risk that a New York court may hold you to the agreement for the long-term.

Consult an attorney who specializes in Child Custody Buffalo NY for more information.

How long does the temporary agreement last for?

In New York, generally, a temporary agreement is valid until the next court appearance and then it can be extended by the court at that time. A temporary order may transform into the final order if it is incorporated into the court’s final decision.

Again, an attorney who specializes in Child Custody Buffalo NY should be able to accomplish this.

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Alimony

Am I entitled to Spousal Support also known as alimony?

Courts in New York may award spousal support to one party. Family Lawyers Buffalo NY should consider spousal support particularly possible after a long marriage or if one spouse gave up career plans to support the other spouse or take care of the children

Can alimony be awarded to either the husband or the wife?

In New York (like every other US state) a husband or wife may be ordered to make alimony payments. In a landmark Supreme Court decision, Orr v. Orr (1979), the Court invalidated a law imposing alimony obligations on husbands but not on wives. The Court reasoned that because the law provided for different treatment on the basis of gender, it could not withstand constitutional scrutiny.

If you believe you may be eligible for spousal support, consult a Child Custody Lawyer Buffalo NY.

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Custody

Where should I file for custody in New York?

In New York, you or your Child Custody lawyer buffalo ny should file for custody in your child’s home state. Their home state is the state where they’ve lived for the last 6 consecutive months. If your child is less than 6 months old, their home state is the state where they’ve lived since birth.

If you and your child have recently moved to New York, you may need to wait until you’ve lived there for 6 months before you can file for custody.

Finally, if there was a prior custody order in your old state, future custody issues may need to go through the same court. Some states will allow you to file for custody in another state under certain circumstances, such as domestic violence. If you’re unsure where to file for custody, contact a divorce lawyer buffalo ny for more information.

How do I file for Custody in New York?

Generally, you file for custody at the local county courthouse in your child’s home state. If you live in Buffalo New York, then you will file at the Erie County Family Court in the City of Buffalo.

When you file for custody, you or your  buffalo lawyer should bring the following documents and information with you when you file:

  • Completed child custody forms, which are typically available on the state court’s website
  • Your child’s birth certificate
  • Your identification
  • Your contact information
  • Contact information for your child’s other parent

If you initiate a case in New York State by filing for custody in Supreme Court, in Downtown Buffalo, you will need to pay a filing fee and then your lawyers in buffalo ny should receive an index number. The better option, generally, is to for your lawyers in buffalo ny to file for custody in Family Court.

Your child’s other parent must also be told of the pending custody case. There’s a formal way of doing this, known as service of process. Neither you nor the lawyer in buffalo ny is permitted to serve the opposing party in the case, so you should ask a non-party, someone who is not involved in the case, to deliver the child custody papers.

Once the other parent responds to being served, the court clerk will place your case on the court calendar. The matter will then be heard in a courtroom before a judge.

At what age is a child subject to a custody and visitation order?

In New York, a child is subject to an order directing custody and visitation until the child reaches the age of 18. However, under New York State law, a parent must continue making child support payments until the child reaches the age of 21, unless certain conditions are met. For more information on those conditions, it is best to consult an attorney who specializes in Attorney in Buffalo NY

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When a Family Court in Buffalo New York is deciding how much parenting time each parent will get, what is the decision based on?

When a court examines the issue of parenting time, the decision will be based on the “child’s best interest”. Although the so called “best interests of the child” standard could include an almost infinite amount of factors, generally, the factors the court will consider include the following:

(1) Quality of home environment and parental guidance;

(2) Financial status and ability of each parent to provide for child

(3) Ability of each parent to provide for child’s development

(4) Demonstrated parenting ability and fitness of the parties

(5) Love, affection, and nurturing given by each party to the child

(6) Emotional bond between the child and each party

(7) Willingness/ability to put child’s needs ahead of his/her own

(8) Willingness/ability to facilitate/encourage optimum relationship between the child and the other party

(9) Individual needs of the child and/or desires/preferences of child; AND

(10) Any other factors deemed relevant to a particular custody dispute; e.g., domestic violence and its impact on the child.

So, as the tenth factor indicates, the court can base its decision on any one or combination of the first nine factors, or the court may ignore all of those factors and instead simply consider “any other factors” the court feels is “relevant” to the “dispute”. Again, “discretion” is the key word here and the presiding judge has a significant amount of it.

That being said, Criminal lawyers in buffalo ny should know that parenting time is considered a joint right of the parent and child. Furthermore, as criminal attorneys in buffalo ny know, there is no standard schedule. Clearly, every family is unique and each child is unique. For this reason, it is absolutely vital for the criminal lawyer in buffalo ny to design a parenting schedule based on each particular case.

Criminal defense lawyers in buffalo new york should also consider case law relating to interference by one parent with the other parent’s contact. According to case law in New York, which criminal lawyers in buffalo ny should keep in mind, a concerted effort by one parent to interfere with the other parent’s contact with the child is so inimical to the best interests of the child … as to, per se, raise a strong probability that [the interfering parent] is unfit to act as custodial parent”. Werner v. Kenney, 142 A.D.3d 1351 (4th Dept. 2016) citing Marino v. Marino, 90 A.D.3d 1694 (4th Dept. 2011) see also Cramer v. Cramer, 2016 WL 5857529 (4th Dept. 2016).

You should seek the expertise of a Criminal Defense Lawyer in Buffalo New York who can assist you if you find yourself charged with an offense.  Contact a Criminal attorney in buffalo in new york, Criminal Lawyer Buffalo NY, or a Criminal Defense Lawyer in Buffalo New York today.

What if I want to move out of Buffalo NY? What will the court base it’s decision on?

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In the Tropea v. Tropea ruling, the New York Court of Appeals emphasized a number of factors for courts to consider in making a best interest analysis in relocation cases, including but not limited to:   (1) the parent’s reason for seeking the move; (2) the other parent’s reason for opposing the move; (3) the quality of the relationships between the child and each parent; (4) the impact of the move on the quality and quantity of the child’s future contact with the non-custodial parent; and (4) the feasibility of preserving the relationship between the child and noncustodial parent through meaningful access arrangements.

Criminal lawyers in buffalo new york ultimately understand, however, the presiding judge has significant discretion in any proceeding related to custody. Before making such a decision, the judge will consider all of the proof, and whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child’s best interest. Criminal attorneys in buffalo new york must remember the burden of proof is on the parent wishing to relocate. In other words, the parent seeking to relocate must put forth evidence which establishes by the preponderance of the evidence that the proposed move is in the best interests of the child.

If you are facing criminal charges, you should seek the expertise of Criminal Defense Lawyers in Buffalo New York who can assist you if you find yourself charged with an offense.  Contact a Criminal attorney in buffalo in new york, Criminal Lawyer Buffalo NY, or a Criminal Defense Lawyer in Buffalo New York today.

Criminal Lawyers in Buffalo New York must also be familiar with contempt proceedings

Andrew Tabashneck, founding partner of The Tabashneck Law Firm, is a Criminal Attorney Buffalo NY.

What is the legal standard for a petition to modify an existing custody agreement compared with the standard for a petition for civil contempt?

In New York, as criminal attorneys in buffalo in new york know, to establish civil contempt based upon a violation of a court order, the petitioner (person filing the petition) must show that (1) a lawful court order was in effect at the time of the violation; (2) the order stipulated a clear condition that must be followed; (3) and the person alleged to have violated the order had actual knowledge of the terms. A willful violation of a Family Court order must be established by clear and convincing evidence

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criminal attorney buffalo ny know, with regards to a petition to modify an existing custody order, New York courts have clarified that an existing custody order may be modified where petitioner establishes by a preponderance of the evidence that there has been a change in circumstances and that modification is necessary to ensure the best interests of the children.

In New York, criminal attorneys in buffalo ny know, when determining if a “substantial change in circumstances is present” the court focuses on the following factors: (a) the quality of each party’s home environment, (b) each parent’s past performance and stability, (c) each parent’s fitness and ability to guide and provide for the children’s emotional and intellectual development; (d) the length of time the custodial arrangement has been in place; (e) how faithful each party has been to the original order; (f) and the wishes of the children.

Here, in New York, as a criminal attorney in buffalo ny may predict, a court will likely find a substantial change in circumstances is present given that the father has repeatedly violated the order and due to the deterioration of the relationship between the parents. Under the circumstances, a court in New York would likely find the circumstances justify a finding that continuing joint custody would be against the child’s best interest.

Contact a Criminal attorney in buffalo in new york, buffalo criminal defense attorneys, Buffalo Criminal Lawyers, or a Criminal Defense Lawyer in Buffalo New York today.

As a Grandparent, may I obtain custody over a biological-parent?

In Bennett v. Jeffereys, the New York Court of Appeals ruled that a non-biological parent, such as a grandparent, may only obtain custody over a biological parent if two conditions are established.

First, the New York Court of Appeals stressed the buffalo lawyer, seeking custody in a grandparent visitation case, must establish that “extraordinary circumstances” exist which require courts in New York State to order custody with the grandparent over the biological parent.

Under New York Law, a buffalo lawyer may establishe extraordinary circumstances where the child is abandoned; a parent signed a legal document stating the child may be adopted; a parent neglected or abused the child; a parent is being or has been deported; a parent is in prison for a long time; or other serious acts which may affect the child’s well-being.

Once extraordinary circumstances are established, the buffalo criminal lawyer must establish that granting custody to the grandparent would be in the child’s best interest. The “best interest of the child” standard is fact specific and highly dependent on the quality of the arguments made by the buffalo criminal lawyer.

New York courts will look to all relevant factors including the grandparent’s financial information; health and age. The law in New York State provides courts with great discretion to examine many more factors beyond those limited here. Additionally, New York courts, depending on the child’s age, may ask the child what he or she believes to suit his or her best interest.

Custody disputes may become contentious and complicated so it is best to consult an attorney who specializes in buffalo lawyer

Is there any way to change the custody arrangement?

Generally, courts in New York State prefer not to change custody. Under New York law, however, if the Child Custody Lawyer Buffalo NY establishes there has been a substantial change of circumstances, which based on the totally of the circumstances requires a change in custody, a court in New York will modify the custodial agreement.

In determining whether there has been a “substantial change of circumstances,” Lawyer in Buffalo NY must be mindful that New York take a “case-by-case” approach and pay particularly close attention to the unique facts and circumstances. Although the standard is highly fact-specific, there are several examples of what constitutes a “substantial change of circumstances.”

First, courts in New York State have found a substantial change of circumstance where Lawyer in Buffalo NY submitted evidence showing the “custodial parent” (the parent with primary custody of the child) is moving outside of New York State and the move will make it almost impossible for the non-custodial parent to maintain a meaningful relationship with the child. For example, if one parent living in Buffalo, New York decides to move out of the state without securing consent from the other party, the act will deemed a violation of the court order.

Another example courts throughout the State of New York recognize is where the Family Lawyer Buffalo NY for the non-custodial parent submits evidence the custodial parent has been engaging in activities that may be considered harmful to the child. An attorney who specializes in Child Custody Buffalo NY should emphasize facts such as the custodial parent leaving the child unattended during the evening while the custodial parent is out with friends or even working at a job with midnight shift hours.

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How do I submit videotape evidence in custody litigation?

In New York, To provide video evidence in a custody battle, you must first notify the court that you will need to rent the necessary equipment to play the video. You may use a CD or thumb drive, however what you use will be dependent upon the equipment available and the rules of the particular judge. If the evidence is submitted at a fact-finding hearing, then it must be material, relevant, and competent. Although certain rules of evidence have been broadened in Article 10 proceedings, traditional tests for reliability have not been abandoned in fact-finding hearings.

To be clear, it is best to consult with child custody lawyer buffalo ny given that the process for admitting evidence can be complicated.

Within the context of a trial, like other types of evidence, videotape evidence will be excluded if the prejudicial effect outweighs the probative value. New York courts have noted that videotape evidence will not be allowed where the videotape has  any tendency to exaggerate any of the true features which are sought to be proved.

Videotapes may also be admissible as a form of experimental test or demonstration.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi cases, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  criminal attorney buffalo ny

 

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Child Support

What is child support?

New York law defines child support as a payment by one parent to the other parent for the support of their common child. In New York, courts often order the noncustodial parent to make the payment to the custodial parent. However, if aan attorney who specializes in Child Custody Buffalo NY submits proper documentation, courts in New York State may order the custodial parent to provide child support payments to the non-custodial parent.

The reasoning underpinning child support in New York State is the child’s best interests is served when both parents provide economic support for their common child. Based on this reasoning, courts throughout New York State  will order non-custodial parents to pay child support even if a custodial parent is capable of supporting a child without financial assistance. However, the custodial parents Criminal Lawyers Buffalo NY must put forth the necessary documentation.

Once a child support order is in place, it is very difficult for the party subjected to the order to remove himself from the obligation. Even if unemployed, under most circumstances, the child support order will remain in place.

Critically, Lawyer in Buffalo NY must make sure the child support order is incorporated in the divorce decree or paternity judgment. In most cases, the order will stipulate that the child support payments be made on a month-to-month basis.

Also keep in mind that willfully failing to pay child support will have criminal consequences. If you face a hearing regarding failing to pay for child support, contact a Family law attorney buffalo ny for representation at the hearing.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi cases, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  criminal attorney buffalo ny

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Am I entitled to receive child support?

Under New York State law, if you and your spouse have children, the “non-custodial parent” (the parent who the child does not primarily live) could be ordered to pay child support to the parent who the child primarily resides with. Alternatively, if one parent makes much more money, the court may award child support to make sure the child is always taken care of.

It is best to consult an attorney who specializes in Child Custody Buffalo NY

How long am I entitled to receive child support?

In New York State, a parent must pay child support until the children reach the age of 21 or until the child support order is modified or extinguished. A family lawyer buffalo ny may have to petition the court to officially eliminate the child support obligation.

Remember to contact a Family law attorney buffalo ny  for more information.

My ex-spouse is refusing to access to our common child in violation of the support order. What should I do?

Criminal attorneys buffalo ny who also specializes in Child Custody Buffalo NY should bring a contempt action to enforce the parenting time order. In extreme cases, it is possible the parent denying parenting time could lose custody. It is possible that if you have been wrongfully denied parenting time, you may be entitled to “makeup” or compensatory parenting time. A New York court may conclude increasing parenting time is an appropriate sanction for your ex-spouse’s denial of parenting time. Again, this is highly dependent on the unique facts and circumstances involved in your case, as well as the particular arguments made by your an attorney who specializes in Child Custody Buffalo NY

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If I am unemployed will I still have to pay child support?

If a parent is unemployed or underemployed, some courts in New York “impute” income to the parent and tailor the child support based on the imputed income. For example, if a parent living in Buffalo NY is out of work and looking for work, a court may impute the parent’s income to be equal to the minimum wage in the State of New York.

Courts in New York may also impute the income based on recent work history, occupational qualifications, and the prevailing community earnings levels. For instance, a court may look at the average income of residents in Erie County and order child support based on that amount.
Because courts in New York have so much discretion in these cases, it is critical that your Child Custody Lawyer in Buffalo NY make quality arguments which shed light on the critical facts concerning the case at hand.

If a parent is voluntarily unemployed or underemployed, on the other hand, a court may base the child support amount on the net income the parent enjoyed prior to voluntarily becoming unemployed or taking a position which resulted in underemployment. For example, following a divorce, if a man leaves a high salary job in New York City for more modest employment in Buffalo NY, a court may order the child support payment to be based on the man’s New York City salary because he voluntarily left his position.

Again, this is the general rule. An Criminal Lawyer buffalo NY may bring certain facts to light which could sway the decision in your favor.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi cases, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  criminal attorney buffalo ny

Criminal Lawyers in buffalo ny should advise clients that a failure to pay child support in ny could result in jail in buffalo

My ex-spouse is refusing to pay child support. Can I deny him visitation with the children until he resumes making payments?

In New York, the custodial parent cannot deny the non-custodial parent his or her parenting time because the non-custodial parent has not paid child support. In a New York case, Matter of Stewart v. Soda (4th Dept. 1996), the court held that visitation cannot be terminated solely because a parent fails to pay child support. The court rejected the Divorce Lawyer Buffalo NY argument connection visitation and child support: “visitation cannot be terminated solely for reasons unrelated to the welfare of the child.” Therefore, terminating visitation due to a failure to pay child support it is an “insufficient basis” to deny visitation.

The New York court rejected the argument made by the Child Custody Lawyer Buffalo NY based on the idea child support and visitation are separate issues. This distinction is based on the idea that parenting time is ordered because it is in the best interest of the child to promote love and affection with both parents. When the parents have difficulty managing the visitation schedule laid out in the court order, the appropriate remedy is to seek the assistance of the court. Alternatively, if the non-residential parent is not paying child support, the appropriate remedy may be to garnish the amount directly from the non-residential parent’s paycheck. Put simply, the court does not want to encourage parents to engage in “tic for tac” exchanges which may ultimately harm the children.

For more information on custody or matters related to criminal law, contact a Buffalo Criminal Lawyer today.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi cases, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  criminal lawyers buffalo ny

How do I determine if my child is emancipated for child support purposes?

Criminal Lawyers Buffalo NY should know emancipation prior to age 21 may occur if the child marries, becomes self-supporting, enters the military or engages in a course of conduct that is inconsistent with the parent-child relationship. The burden of proof as to emancipation is on the person asserting it, and the father failed to satisfy his prima facie burden.

Under the doctrine of constructive emancipation, where a minor of employable age and in full possession of his or her faculties, voluntarily and without cause, abandons the parent’s home, against the will of the parent and for the purpose of avoiding parental control, the child forfeits his or her right to demand support. However, where it is the parent who causes a breakdown in communication with the child, or has made no serious effort to contact the child and exercise visitation rights, the child will not be deemed to have abandoned the parent.

For more questions on child support, contact a criminal lawyer buffalo ny or criminal lawyer buffalo ny

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi cases, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  criminal lawyers buffalo ny

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EQUITABLE DISTRIBUTION

What happens to the property following the divorce?

Under New York’s Domestic Relations Law Section 236(B)(5)(c) to be specific),   “marital property” is subject to “equitable distribution.” where the court distributes the property “equitably between the parties considering the circumstances of the case and of the respective parties.”

Clearly, this is a very complicated matter. It is best to consult criminal lawyers buffalo ny for more information.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi cases, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  criminal lawyers buffalo ny

What is Marital Property?

Under New York’s Domestic Relations Law, marital property is defined as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action.” In other words, marital property is any property you obtained between the time you were married and before you either filed for divorce or agreed in writing to separate from your spouse.

Critically, as criminal lawyers buffalo ny should know, marital property does not include separate property.

What is Separate Property?

Under New York Law, separate property is not subject to equitable distribution. In other words, separate property will not be divided by the court and will remain in the possession of the person who owns it.

A Lawyer in Buffalo New York will understand Separate property includes the

following categories of property:
property obtained before marriage
property obtained as a gift
property inherited from someone other than your spouse
compensation for personal injuries;
property acquired in exchange for or the increase in value of separate property
property described as separate property by the parties’ written agreement

For more information on separate property, it is vital to consult with a buffalo criminal defense attorneys

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyers buffalo ny

Criminal Lawyers in Buffalo NY

What is Equitable Distribution and what is the underlying purpose?

A court will look at all the relevant factors and distribute the marital property according to a sense of fairness based on the unique facts and circumstances of the case. Courts in New York have great discretion in distributing marital property. As a consequence of this discretion, it is important to have buffalo criminal defense attorneys to shed light on the most important facts in your case.

In determining what fairness requires, courts in New York are not required to divide marital property equally. Instead, courts focus on fairness.The court will only be in a position to make the fairest ruling if your criminal lawyer buffalo nybrings the relevant facts to the court’s attention.

In a case almost two decades ago, Schiffmacher v. Schiffmacher (2005), a court in the New York Appellate Division, accepted the criminal lawyers buffalo ny reasoning, and agreed the wife was properly awarded 70 percent of the value of the marital savings and investment accounts because the husband had better future income prospects given his advanced degrees. In other words, the husband was awarded substantially less marital property because the court reasoned that he was more likely to “make up” the money in the future. In contrast, the wife had more limited prospects which compelled the courts to provide her with enough to compensate for her more modest future income.

Lawyers Buffalo ny, in many cases, however, New York courts will listen to the arguments made by the Lawyers in Buffalo NY and distribute marital property in a close to equal manner. In one New York case, despite the arguments made on appeal by the in  Lipovsky v. Lipovsky (2000), the New York Appellate Division held the property was appropriately distributed where it was in an equal manner. In this case, the court emphasized that in long-term marriages property should be distributed equally. Specifically, the New York court stressed that both New Yorkers made significant contributions to the marriage. For instance, as the Lawyer in Buffalo NY indicated in his argument, the husband had worked long hours while the wife had taken care of the home and raised the children. The contributions of both parties led the court to conclude that an equal distribution of the marital property was necessary.

Criminal Defense Lawyer Buffalo NY  must keep in mind that equitable distribution is quite complicated and it is always best to consult with a Criminal Lawyer Buffalo NY prior to proceeding

Please be advised, this is not legal advice. For a free consultation, contact a Criminal lawyer in buffalo ny, criminal attorney in buffalo ny, criminal defense lawyers buffalo ny

What if I have an agreement with my husband detailing the way we would like our property to be divided following a divorce?

Criminal Defense Lawyer Buffalo NY know married persons have the right to change the classification of property from either separate to marital or from marital to separate, or to transfer one spouse’s separate property to the other spouse. Under New York law, these agreements are referred to as “transmutations.” All transmutations must be made by express written declaration.

To make sure all of the proper formalities are satisfied, it is best to consult a Criminal Lawyer Buffalo NY to draft such an agreement

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MISCELLANEOUS

I am afraid my husband will harm me. What should I do?

If you are afraid for your safety and emotional well-being, it is critical to leave the house and file for an order of protection as soon as possible. The day you file for an order of protection, a temporary order of protection is issued and will last until the next time you are in court. Typically, the court will grant the request of the Criminal Defense Lawyers in Buffalo ny extend the temporary order at each court date until the criminal case has concluded. Once the criminal case is over, a final order of protection may be issued. The final order may last from one year to several years depending on the severity of the circumstances. If you are in immediate danger call 911.

Once you file a petition,  in New York, the court may schedule a hearing to resolve any of the disputed issues before granting the order of protection for an extended period of time. It is important to consult a criminal lawyer buffalo ny or criminal lawyer Buffalo ny prior to the hearing.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, contact a criminal lawyer buffalo ny,  Criminal attorney buffalo new york or criminal lawyer buffalo ny

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Can parental rights be terminated while a parent is serving a prison sentence?

If you are incarcerated for six months or more, it is very important to maintain communication with your children or else a court could rule that you abandoned your children which could lead to the termination of parental rights.

Many Criminal Defense Lawyers Buffalo NY are familiar with the New York Case, In re Ulysses, the father had argued that the six month statutory abandonment period could not include the two months during which he had been confined to the county jail. The Appellate Division held the father was presumed to have been able to communicate with his child and the agency during his incarceration. The Court of Appeals affirmed.

Criminal defense lawyers buffalo ny should be aware other cases have held that even an incarcerated parent who is illiterate is able to communicate with his/her child and the agency. In another case, In re Stella B, the New York Family Court denied an incarcerated father’s motion to dismiss an abandonment proceeding. The father argued his incarceration had rendered him unable to visit and communicate. The court found the father had not made all possible efforts to communicate with his child and the agency, even though the agency had refused to provide him with visitation at the prison, and his illiteracy had prevented him from writing letters. The court stated that the father had had access to other forms of communication. It is not clear from the court’s opinion, however, what other forms of communication were open to the father. The court in New York held that the issue would be addressed at the fact-finding hearing.

Criminal Defense Lawyers Buffalo NY should also recall another New York case, in In re Starr L.B., where the criminal lawyer buffalo ny for the father argued that he was unable to visit and communicate with his child. Specifically, he contended he was functionally illiterate and therefore unable to write to his child or the agency; financially unable to purchase or send gifts; and unable to telephone his child, because he did not know the foster parents’ telephone number.

In this case, the attorneys in buffalo ny also argued he maintained indirect contact with his child through the paternal grandparents. Although the father had not had any direct contact with the agency or his child, the paternal grandparents had visited with the child regularly and had given the child gifts. The grandparents had also, at the father’s request, asked the agency to provide the father with visits. The agency had told the grandparents that the father would have to contact the agency himself to make this request, but the father had not done so.

In the end, the New York court rejected both arguments made by the criminal lawyer buffalo nycriminal lawyer buffalo ny.   With respect to the lawyer’s argument that the father had been unable to communicate with the agency and his child, the New York court noted the father had not made any contact in more than three years.

The New York court also noted the father had managed to make regular phone calls to the paternal grandparents during the time in which he claimed to have been unable to maintain telephone contact with the agency. The court found that the father could have, while in prison, telephoned the agency since he knew the telephone number of the agency and had the name of his previous caseworker. He could also have made a direct request to the agency for visitation. In addition, he had appeared in Family Court in a proceeding concerning his child, and he could have taken the opportunity then to talk to the agency caseworker, ask about his child and arrange for visitation, but he had not done so. The court also noted that even if he were illiterate, he could have asked the grandparents, the prison chaplain, or his prison counselor to help him write letters. Finally, the court found that even if he were indigent, in three and one-half years he could have come up with the money at least to send a birthday card to the child through the prison mail.

With respect to the argument that the father had satisfied his duty to communicate with the child and the agency by indirect contact through the paternal grandparents, the court found that the grandparents had not been acting as the father’s agent, because they had not been acting at his behest. The grandparents had been acting out of their own love and concern for the child. The court noted that the father had never taken any affirmative steps, by, e.g. purchasing gifts for the grandparents to send to the child.

Finally, even where a parent communicates with his/her child while in prison, the parent may be found to have abandoned the child on the basis of post-incarceration conduct. In In re Vunk, the court held that the father had abandoned his daughter where, for seven months following his release from jail, the father had made no contact with his daughter other than to send her Thanksgiving and Christmas cards. The father had maintained regular contact with his daughter while he was in jail. The court suggested that the finding of abandonment would not have been warranted had the father at least written to his daughter or telephoned the child care agency to inquire about his daughter following his release from jail.

As a take-away from this case, criminal lawyers buffalo ny should keep in mind when a client is sentenced to jail, he or she must still maintain his parental duties or else suffer possible consequences.

If you are looking for lawyers in buffalo ny free consultation and facing criminal charges or in the middle of a criminal case, such as a dwi cases, contact a criminal lawyers buffalo ny,  buffalo dwi lawyer, or  criminal attorney buffalo ny