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Ask A Buffalo Criminal Attorney

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, Andrew 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 family law or criminal proceedings it is important to contact Andrew Tabashneck Esq at 716-526-7405.

Criminal Law

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 an attorney contact Andrew Tabashneck Esq for a free consultation

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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.

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When do police in Buffalo Ny have the authority to search your vehicle?

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

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When do police have probable cause to believe a 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.

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Can police search your car after 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

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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.

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What could happen if evidence is not properly stored?

Before storing evidence, items need to be handled separately from one another to prevent possible DNA transfer. An analyst should open one item, sample it and repackage it before proceeding to another. Evidence from victims should always be examined separately from suspect evidence. It is preferable for laboratories to have separate examination areas for victim and suspect evidence. Evidence should always be handled separately from references. In some cases all evidence items may be processed completely before any references are sampled.

Family Law

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. Again, Please be advised, this is not legal advice.

How do I file for Custody in New York?

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. Again, Please be advised, this is not legal advice. Contact Andrew Tabashneck esq today.

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).

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.

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 establish 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.

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.

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.

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.

If I am unemployed will I still need 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.

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