Going through a divorce or criminal proceedings 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. 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 Divorce Lawyer Buffalo NY: (716) 526-7405



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 Divorce Lawyer 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 Divorce 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 Divorce Lawyer in Buffalo NY 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 family lawyer Buffalo NY.

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 divorce lawyer buffalo NY 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 divorce lawyer buffalo ny 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 Divorce Lawyer Buffalo NY to make sure the requirements are satisfied.

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 divorce lawyer buffalo ny 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 divorce lawyer buffalo ny 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 divorce lawyer buffalo ny who can navigate the process which often becomes complicated.

For a free divorce consultation, contact a divorce lawyer buffalo ny today.

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 a child custody lawyer Buffalo NY, 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 Divorce Lawyer Buffalo NY for legal advice on how to proceed.

during the divorce process

Temporary Agreement

During the divorce, Should my Child Custody Attorney 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.


Am I entitled to Spousal Support also known as alimony?

Courts in New York may award spousal support to one party. Divorce 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 Divorce Lawyer Buffalo NY.


Where should I file for custody in New York?

In New York, you or your divorce 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 divorce lawyer buffalo ny 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 file for custody in Supreme Court, you will need to pay a filing fee and then your divorce lawyer buffalo ny should receive an index number. The better option, generally, is to for your divorce lawyer 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 your divorce lawyer buffalo ny is permitted to serve the other parent, so you should ask someone else who knows them 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 Child Custody Buffalo NY

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 Divorce Lawyer Buffalo NY for the grandparent seeking custody 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 Divorce Lawyer Buffalo NY establishes 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 Divorce Lawyer Buffalo NY 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 Divorce Lawyer Buffalo NY.

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 Child Custody Buffalo NY

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 Divorce 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,” Divorce Lawyer 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 Divorce 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.

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 divorce 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.

For more questions regarding the admissibility of evidence in New York, contact a criminal lawyer buffalo ny or divorce lawyer buffalo ny and schedule a free consultation.

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 Divorce lawyer 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, divorce lawyer 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.

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 divorce 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?

an attorney who 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

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 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 Ontario 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 Divorce 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 family law attorney hamburg ny may bring certain facts to light which could sway the decision in your favor.

For more information it is best to consult an attorney who specializes in Child Custody Buffalo NY

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 matters, contact a Divorce Lawyer Buffalo NY today.

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

Divorce Lawyer in 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 divorce lawyer buffalo ny and schedule a free consultation.


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 a Divorce Lawyer Canandaigua NY for more information.

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 Divorce Lawyer Canandaigua 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.

Divorce Lawyer Canandaigua NY 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 divorce lawyer ontario county

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 a Divorce Lawyer Ontario County NY who sheds 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 Divorce Lawyer Buffalo NY brings 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 Divorce Lawyer 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.

Divorce Lawyer Buffalo ny, in many cases, however, New York courts will listen to the arguments made by the Divorce Lawyer in Canandaigua NY and distribute marital property in a close to equal manner. In one New York case, despite the arguments made on appeal by the divorce lawyer ontario county ny 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 Divorce Lawyer 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.

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

What does exclusive possession mean? Does this impact equitable distribution?

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


Divorce Attorneys in Buffalo Ny should know exclusive possession simply means only one person, either you or your wife, has the right to live in the residence. It does not necessarily mean you lose your equitable interest in the home. However, the court could consider it among a variety of other factors.

Divorce lawyer in buffalo ny will generally include a claim for exclusive possession in the Summons W/ Notice as well as the Complaint for Divorce. After filing for the divorce, a party may bring a motion for the court to establish exclusive possessing of the marital home for one of the parties. Sometimes, this is done as a result of very bad behavior by one of the parties; however, the behavior must be particularly abominable.

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


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

Divorce Lawyer in 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 Divorce Lawyer Buffalo NY to draft such an agreement.

What is the Cutoff Date of a Marriage for Pension Valuation? 

In New York, The dates for pension valuation are from the date of marriage until the date the divorce action is commenced. If there was a period of time before the commencement of the divorce action where the parties were separated, such a period of time will not impact the martial portion of the pension.

The marital portion of the variable supplement (457 etc) is also marital property. Like the pension, the variable supplement is measured from the date of the marriage to the date of commencement. Any gains or losses are also factored in until the date of distribution.

Whether a pension is subject to equitable distribution can be a complex analysis. For more questions, contact a divorce lawyer buffalo ny for a free consultation.



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 Family Lawyers in Buffalo ny extend the temporary order at each court date until the case has concluded. Once the 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,  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 Family Lawyer Buffalo NY or criminal lawyer amherst ny prior to the hearing.

AgainI 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. To schedule a consultation it is best to reach out to a Family Lawyer Buffalo NY, Child Custody buffalo NY, or a Divorce Lawyer buffalo NY.

Criminal Law FAQ


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

Under the Fourth Amendment to the US and New York State Constitution, as most Criminal Lawyer 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 Lawyer Buffalo NY understands the recent case law and is prepared to fight on your behalf.


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 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 Lawyer Amherst 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.


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 Lawyer Amherst 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 Lawyer Amherst NY recognize, it is relatively easy for police to legally stop you while you are driving a car.

Can police search your car after legally pulling you over? 

In examining a vehicle search by a 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 dwi attorney 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 dwi attorney buffalo ny, raises particularly novel issues in an insightful manner, the evidence seized will be upheld. In fact, even if the Criminal Lawyer 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, police must end the fishing expedition unless an exception applies. If the police search anyway, as Criminal Lawyers in Amherst NY 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 Hamburg NY

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

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

If police seize evidence from the vehicle, it is vital your Criminal Lawyer 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 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 Niagara Falls 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 Niagara Falls 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 are arresting me, is it legal for an officer to search me?

Most Criminal Lawyer in Niagara Falls NY know police 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 Niagara Falls 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 Lawyers in Niagara Falls 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.

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

A Criminal Lawyer in Amherst 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. Dwi Attorneys Buffalo NY and Criminal Lawyers in Amherst NY 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 Hamburg NY has probably encountered a situation 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 Hamburg NY Police discover the license of the driver is suspended. Once Hamburg NY Police establish the party was driving on a suspended license, the Hamburg will have the authority to conduct a search incident to arrest.

A Criminal Defense Attorney Buffalo NY must be aware 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, dwi attorneys 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, once the suspect exits the vehicle, police in Hamburg 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 Hamburg NY or a Criminal Lawyer in Amherst 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 Niagara Falls and dwi attorney 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, in Amherst NYCriminal Lawyer in Amherst 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 Niagara Falls 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 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 Buffalo NY submit the necessary arguments, supported by facts, in the omnibus motion where the Criminal Lawyer Niagara Falls ny can seek to suppress the physical evidence recovered.

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


First Step: Processing

In most cases, following your arrest, you will be taken to a 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 Lawyer Buffalo NY 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 Lockport 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 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.

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 Lawyer Buffalo NY, 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

Second Step: The Arraignment

After you are processed, the next step is the arraignment. It is important to have representation at the arraignment stage so be sure to contact a Criminal Lawyer Lockport NY for representation. The arraignment is the initial court appearance which is in front of a judge in a town or village court, district court, city court 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 Lockport NY who understands the customs and prepare the best possible defense.

What Happens at the Arraignment?

At the arraignment, 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 Niagara Falls NY should bring certain facts to the court’s attention which establish that you will return for the next court date.

You are also entitled to a copy of the 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 Niagara Falls NY will make the necessary arguments regarding bail and also make sure you obtain a copy of the 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.

Will the Prosecutor serve me with any documents at the arraignment?

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 dwi attorney buffalo ny about specific evidence the Prosecution has obtain, while the other demands certain information from your Criminal Defense Lawyer Buffalo ny.

The typical notices include the Statement Notice, Identification Notice, and the Alibi Notice.

The Statement Notice informs your Criminal Lawyer in Buffalo ny that the Prosecution intent to use a statement the accused made to a public servant.

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 activity.

Once the Prosecution serves the Alibi Notice on your criminal lawyer buffalo ny, if your dwi attorney 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.

Do I have the Right to a Criminal Defense Lawyer in 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. 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 New York represent him or her at the arraignment because it is a critical stage of a criminal case.

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

If you are charged with 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 until you have a Criminal Defense Attorney Buffalo NY.

If, on the other hand, you are not necessarily certain whether the 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 dwi attorney buffalo ny at arraignment at no cost.

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

Once you are arrested, 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 dwi attorney buffalo ny can file a writ of habeas corpus which is a court order directing the accused be release from custody.

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 bail is set or you are released without bail, the prosecution must move forward with the case. If the charge is a felony and the accused is in custody, Criminal Lawyers Niagara Falls 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

What is Bail?

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 charges. The law does not consider bail a punishment, which means it should only be imposed if you are a “flight risk” or charged with certain dangerous felonies.  It is critical that the Criminal Attorney Niagara Falls NY representing you submit a motion to reduce bail, if you cannot afford to make the payment. Following the motion, the court will schedule a hearing where your Criminal Lawyer Niagara Falls NY will make the necessary argument on your behalf.

What Factors will the Court Consider in Determining Bail?

dwi attorney 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 include the following:

  • 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 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 so the necessary arguments can be made on your behalf.

How do I Post Bail? 

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 Lawyer Niagara Falls NY should know who charges the most affordable rates.

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

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

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

If the accused returns to court, bail will be refundable at the end of the proceedings. 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 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 going through the criminal process, it is very important to find lawyers in buffalo ny free consultation

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 Lawyer in North Tonawanda 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.

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

A Criminal Attorney Niagara Falls 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 Niagara Falls NY may also challenge the sufficiency of the accusatory instrument through pre-trial motions. Criminal Defense Lawyers in Niagara Falls NY can specifically argue even if the facts occurred as they are alleged to have transpired, the facts still do not establish the charge.

Step 4: Post Arraignment

What should my Criminal Lawyer do after the arraignment?

If your criminal lawyer 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 Defense Lawyer 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 Lawyer in Amherst 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.

If you are unsure of your next move, consider calling lawyers in buffalo ny free consultation

If I was not where the crime occurred at the time the events transpired, can I use this as evidence?

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

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

dwi 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, dwi 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 Lawyer in Niagara Falls 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

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 Niagara Falls 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

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

Although an experienced criminal lawyer in Hamburg ny should not assume anything, courts do frequently permit late service of alibi notice. However, if the Criminal Lawyer in Hamburg, 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 Hamburg 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 Hamburg NY establishes good cause for the delay, the court may extend the alibi notice tie period.

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

Yes. A Criminal Lawyer in Amherst NY may utilize at least two additional strategies. First, the Amherst Criminal Lawyer may argue the police coerced the accused into committing the criminal act. In other words, the Criminal Attorney in Amherst 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 Amherst 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 Amherst 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


What is a Pre-Sentence Investigation Report?

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 stipulated in a plea agreement, that the accused agrees to waive the report. That being said, the report could be important 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, it is vital for criminal lawyer buffalo ny to carefully read over the report and make sure the accused is prepared.

For more information on a pre-sentence investigation report contact a Criminal Lawyer Buffalo NY or divorce lawyer buffalo ny today.

Can a New York Court disregard a plea agreement after agreeing in writing?

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

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

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

In the case 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” within this context 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 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, contact a criminal lawyer buffalo ny or divorce lawyer buffalo ny today.

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 criminal lawyer amherst ny or criminal lawyer buffalo ny today.

In New York, under CPL § 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.

As always, Please be advised, this is not legal advice. For a free consultation, contact a Criminal Lawyer Amherst NY today.

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

Generally, 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 Lawyer in Amherst NY should still be able to sue for wrongful arrest or excessive force.

Additionally, the charges are not dismissed until after the adjournment period. This period could last for up to a year. During this time, the accused will have a case pending which could impact employment or immigration status. As an aside, Criminal Lawyer Amherst NY  should keep in mind that even if the case ends iwth a not-guilty verdict, it will likely take almost as long to reach the final verdict. Therefore, unless the accused 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?

Criminal lawyers buffalo ny should know that 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. Felonies are also 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 lawyers 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?

A 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 felonies. 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.

What is an Indeterminate Sentence?

Indeterminate sentences are imposed for some non-violent felonies 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.

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

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.





What is a Presumptive Release??

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?

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?

If 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 Attorneys 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 Lawyers must be prepared to argue for an appropriate alternative to revocation. Criminal Attorneys must pay particularly close attention to any false allegations. If at all possible, Defense Attorneys 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 Lawyer 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 Lawyer 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 Lawyer Niagara County NY or a Criminal Lawyer Buffalo NY today.

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

Ideally, Criminal Defense Attorneys 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 Lawyers must be prepared to argue for an appropriate alternative to revocation. Criminal Attorneys must pay particularly close attention to any false allegations. If at all possible, Defense Attorneys 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 Lawyer 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 Lawyer 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 Lawyer Niagara Falls NY or a Criminal Lawyer Buffalo NY today.


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

Generally, you must testify as the court orders. However, every person has the Fifth Amendment constitutional right against self-incrimination. If there is any possibility that you will be asked a question where a truthful answer might later be used to try to link you to a crime, then you should excused by the judge. 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 contempt of court. In some cases, it could be worse. Furthermore, keep in mind, if you are ever arrested for anything in the future, the fact that you were found in contempt could be used by the prosecution to set a high bond or deny bond entirely.

What is criminal contempt and what are the consequences?

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 ac 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 u, 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 an attorney and have a criminal lawyer represent you at the hearing.

The court may choose to hold a party in contempt, a witness, an attorney, a spectator, or a prospective juror.

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.

For more questions, contact a Criminal Defense Attorney Buffalo NY for a free consultation