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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.

Does the defendant have a right to testify at the Grand Jury?

In New York, the defendant must be given an opportunity to testify at the grand jury before the grand jury votes.

Under New York law, the grand jury must find sufficient evidence is present to vote to indict. If the prosecution fails to allow the defendant to testify before the grand jury, a buffalo criminal attorney may move to dismiss the indictment.
However, if the criminal lawyer buffalo ny motion is granted, it will be without prejudice to re-presentment.

Attorneys may request the court grant dismissal based on the condition that defendant testifies before the new grand jury. However, if the defendant then chooses not to testify, the court cannot then reinstate the previous indictment.

Criminal defense attorneys must make the motion to dismiss the indictment within five days of arraignment on the indictment or it is waived.

What is a misdemeanor?

In New York State, a misdemeanor is defined as a crime punishable by less than one year in prison. There are three categories of misdemeanors in New York:

(1) Class A misdemeanors, such as Petit Larceny and Assault in the 3rd Degree, which are punishable by: –Up to one year in prison –Three years probation, or –A combination of prison (up to 60 days) and three years probation;

(2) Class B misdemeanors, such as Criminal Possession of Marijuana in 5th Degree and Criminal Trespass in the 3rd Degree, which are punishable by: –Up to 90 days jail or –One year probation

(3) Unclassified Misdemeanors, which often fall under the Vehicle and Traffic Law, such as Driving While Intoxicated and Driving with a Suspended License. These offenses can be punishable by up to one year in prison.

Criminal Lawyers in Buffalo New York are aware that New York also has numerous violation-level offenses, such as Disorderly Conduct and Harassment in the Second Degree, which are not considered “crimes” per se but can be punishable by up to 15 days in prison.

Criminal Defense Lawyers in Buffalo New York must advise the accused about the consequences of pleading guilty. First, Criminal Lawyers in Buffalo NY know a misdemeanor conviction becomes part of a person’s permanent criminal record, which can be accessed by law enforcement, government agencies and civilian employers. If you have been convicted of a misdemeanor offense, you have been convicted of a crime.

Often those charged with a misdemeanor offense are arrested and brought to a police station where they are “processed.” A person must be fingerprinted for all felony and most misdemeanor cases and this is typically done as part of the arrest processing. In addition, pedigree information will be taken by the police officer processing the arrest, and the defendant may be questioned about the incident unless the defendant has invoked his right to counsel or an attorney has appeared on his behalf.

The arrest process itself can take several hours. Depending on the time of arrest a defendant may have to spend a night in police custody before he appears in court to be arraigned.

Can a criminal witness be questioned about a prior conviction?

In New York, within the context of a criminal case, an attorney may impeach a witness by asking whether he or she was previously convicted of a crime. If the witness answers in the negative or even provides a mixed answer, the adverse party, under New York’s Criminal Procedure Law 60.40 and CPLR 4513, may independently prove the conviction.

Under Criminal Procedure Law 4513, the evidence law reads accordingly: A person who has been convicted of a crime is a competent witness; but the conviction may be proved, for the purpose of affecting the weight of his testimony, either
by cross-examination, upon which he shall be required to answer any relevant question, or by the record. The party cross-examining is not concluded by such person’s answer.

In other words, the attorney may provide documentation of the conviction in order to resolve the matter with the witness. While generally such “independent evidence” would be considered “collateral matters” and as a result, the buffalo criminal attorney is bound by the witness’s answers, the use of this sort of evidence within this context is an exception to that general rule.

However, if a defendant through another witness, offers character evidence (evidence of a particular trait about defendant), under CPL 60.40(2), the buffalo criminal attorneys for the prosecution may independently prove defendant’ previous conviction, to negate the character attribute.

There is a limitation to this rule, however. For instance, where a witness was arrested but not convicted, the use of the arrest for impeachment purposes is not permissible.

What is an appeal and how do I do it?

If a defendant has been through trial and believes their case to have been improperly handled by the judge or the laws were improperly applied, then they have the right to appeal a court’s decision.

The appeals process does not generally look at the facts of the case but at the process under which the facts were presented. If the appellate court finds that errors were made in the trial, a new trial will be ordered.

The defendant should be aware that the skills of a lawyer trained in trial work will differ from a lawyer trained in appellate law.

A lawyer skilled in appellate work should be able to perform legal research and writing as well as have the ability to argue complex legal issues before a judge.

This information is general and should not be used for legal purposes. Always consult an attorney before pursuing any legal matter.

What are Juvenile crimes?

As a juvenile you have all the same rights as an adult and a few more.

If you are seventeen or younger, in most instances your case will be heard in a special court held for juveniles. In this court you will come before a judge who will hear the case, though you will not face a jury of your peers. You are considered innocent until proven guilty, just as an adult and you will have the right to an attorney – a crucial need whenever involved with the law.

The justice system is just that, a system of rules that help to guarantee a fair and impartial trial designed to administer justice.

A criminal attorney should be well versed in these rules and can help you to use the system to your full advantage as it was meant to be used

What is the automobile presumption?

Under New York Penal Law 220.25, the presence of a controlled substance in an automobile triggers a presumption that everyone in the car is in knowing possession of the drugs.

As a result of the legal presumption, the prosecution need only prove that the defendant was in the car and illegal drugs were found in the vehicle.

There are three exceptions to the general rule, however. First, where the driver is a taxi-car driver or other type of licensed driver of a for-hire automobile; the possessor has the drug legally and the drug is still in the same container; and most important, where the controlled substance is concealed on the person of one of the occupants.

The presumption also does not apply to marijuana and drug paraphernalia.

If you have more questions, contact a criminal defense attorney.

What qualifies as harassment?

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

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

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

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

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

Although criminal charges may result in sentences of varying severity, criminal cases which are classified as felonies are are more serious than misdemeanors.

For a misdemeanor, the potential penalties include a monetary fines and no more than 1 year in county jail. In contrast, the penalty for a felony could be more than a year in state or federal prison.

Not long after criminal charges are filed, Criminal Defense Attorney Buffalo NY should open up conversations with the District Attorney or Assistant District Attorney and determine the best offer.

When the criminal charges include a felony, again, it is certainly more serious than a misdemeanor. That being said, the prosecution does have the flexibility to decide whether to charge the accused as a felony. It is important to recall that shoplifting is generally a misdemeanor, unless the party stealing the property manages to steal over $1,000 worth items.

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

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

A complainant’s attitude about the case may have a significant impact on how the district attorney will proceed.

In a criminal case where the complainant reveals that he or she would like to drop the criminal charges, your Buffalo dwi lawyer may arrange to meet with the complainant and obtain more information.

However, deciding what steps are permissible and how to achieve the end result may be problematic for the Criminal Defense Attorney Buffalo NY. Any improper actions could lead to additional criminal charges, which could include intimidating a witness or even bribery.

Furthermore, if the defendant attempts to persuade the complainant to provide false testimony, it could be admissible to show consciousness of guilt, if the actions are done with the accused’s knowledge and consent.

Criminal Lawyer in Buffalo NY must also avoid preparing an affidavit by which a person falsely recants prior testimony. Again, this could lead to additional charges, if the accused has knowledge and consents to the attorney’s actions, as well as ethical sanctions against the attorney.

In the event that the complainant contacts the Criminal Lawyer Buffalo NY and expresses a desire to drop the criminal charges, counsel for the accused should consider having the complainant sign an affidavit  and include in the affidavit any discrepancies between what was alleged in the accusatory instrument and what the person actually says occurred.

It is also important for counsel to emphasize the weaknesses in the prosecutions case, as well as a clear statement that the defense attorney did not provide legal advice to the complainant. Bottom line, all information in the affidavit should be accurate.

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

A complainant in a criminal case may be contacted by the Criminal Defense Attorney Buffalo NY. Furthermore, the defense attorney does not need the permission of the prosecutor after criminal charges are filed.

Even if there is a temporary order of protection in place which directs the accused to have no contact with the complainant, defense counsel may nevertheless seek access to witnesses as part of his or her obligation to investigate.

According to New York case law, witnesses, including the complainant, are not the property of either prosecution or criminal defense attorney buffalo ny.

The defense has  a due-process right to an equal opportunity to interview them. Is inappropriate for either a prosecutor or a criminal defense attorney buffalo ny to instruct witnesses to not talk to anyone unless the attorney is present.

However, it is also important to keep in mind the complainant has a constitutional right to refuse to talk to your Criminal Defense Attorney Buffalo NY.

Therefore, once the complainant refuses to speak with defense counsel, defense counsel must respect the decision and cease all efforts of communicating with the complainant in the future.

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

First, you should call a criminal defense lawyer as soon as possible.

A  criminal lawyer buffalo ny can reach out to the police precinct on your behalf after criminal charges have been filed or before the criminal case is proceeding and arrange a time for you to surrender. This will save you the embarrassment of having the police come to your home or work.

Your  criminal attorney buffalo ny should schedule an early morning surrender, to hopefully avoid a night in jail.

He or she may also coordinate helpful witnesses and evidence so that it is available to the police, prosecutor, and judge early in the process even before the criminal case is before the judge.

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

Also, it is critical to avoid speaking with anyone in law enforcement about the criminal case without a buffalo dwi lawyer present. Police are trained to get you to talk, but they have no loyalty to you. They will use the parts of the conversation that help move the criminal case along.

Sadly, the police can lie to get you to say things that can be used against you. There’s almost no chance that you’ll be able to talk your way out of the arrest, and chances are, if the police plan on filing criminal charges, they will do so regardless of what you say. But there’s a great chance that you’ll make comments that can damage your criminal case.

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

What Happens at the Arraignment?

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

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

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

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

Under New York’s CPL 530.13, a court in New York is authorized to issue an order of protection in conjunction with any criminal proceeding.

This expands New York’s Criminal Procedure Law 530.12 and allows for orders of protection to be issued not only in proceedings involving family offenses but also in criminal defense cases.

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

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

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

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

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

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

At the indictment arraignment, the judge will inform the defendant of the criminal charges, appoint counsel if necessary, and review the bail status of the accused.

The Criminal Attorney Buffalo NY who represented the accused in the local criminal court must be given two days’ notice prior to the indictment arraignment, under New York’s Criminal Procedure Law 210.10(1)(2).

The judge may also reconsider the bail status at this time, which provides for the possibility of bail increase or revocation.

Therefore, in almost every criminal case, Criminal Attorney Buffalo NY should be prepared with a bail argument in the event the People argue that bail be revoked.

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

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

What is a valid accusatory instrument?

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

Criminal lawyer buffalo ny should know a valid, sufficient accusatory instrument is fundamental for the district attorneys office to justify any criminal charges. Under New York’s Criminal Procedure Law, Articles 100 and 200 respectively, the standards of sufficiency are laid out in detail.

Generally, in a criminal case where the criminal charge is a misdemeanor, the information must contain non-hearsay factual allegations that establish a prima facie case. In addition to the factual allegations, criminal attorney buffalo ny should pay close attention to the source of the knowledge.

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

Generally, the supporting deposition is filed with the information. This is particularly imperative when the source of the information is “upon information and belief.

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.

When am I able to remarry?

When am I able to remarry?

Before a person can legally remarry in the State of New York, following initiation of proceedings by your Family 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 are the requirements for a valid prenuptial agreement?

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

Furthermore, even if the divorce lawyer niagara falls 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 Family  Lawyer Buffalo NY to make sure the requirements are satisfied.

Can I plead guilty at the arraignment?

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

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

Now, getting to the crux of the question: whether you should ever plead guilty at arraignment in a criminal case. The reality is that a plea of not guilty is almost always better at this early stage in criminal defense cases.

Even if you plan on pleading guilty in the very near future. One of the reasons is because in a criminal case a plea of not guilty can always be changed at a later date, while changing a guilty plea is a tougher process.

Additionally, it provides you with a degree of leverage which is critical in negotiating your plea with the prosecution.

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

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

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.

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.”

Personal Injury

How long do I have to file a lawsuit after the car crash?

Generally, you have three years, starting from the date of the car crash, to get your car accident case started in the New York court system. This means that you will need to hire a personal injury attorney before that point.

If you miss the time limit set by this law and you try to file your car accident lawsuit after the deadline has already passed, the New York court system is almost certain to dismiss your case, unless some rare exception applies to extend the deadline

Is New York a "no-fault" state and what does that mean?

Yes. New York is a no-fault car insurance state. This means that, after you have been in a car accident, you most likely need to file a claim under your own personal injury protection coverage to get compensation for medical bills and other financial losses, regardless of who caused the crash. There is an exception to this general rule, however, your injury claim must meet certain conditions.

What should I do after a car accident if the accident was my fault, but there wasn't any damage and no tickets were issued?

Even though you were not issued a ticket, the Sheriff could file an accident report. It is best to play it safe and report the accident to your insurance immediately. If you report it, this protects you in case the other driver
your insurance immediately, just in case the other driver decides to file a personal injury claim against you. In that event, if you report the accident right away, then your insurance will not deny you coverage for the claim for failing to report the accident.

Regardless if may be wise to contact a personal injury attorney.

When is the motorist in the rear at fault in car accidents?

Generally, rear-end accidents are the fault of the motorist who hits the vehicle in front. It is easier to explain by providing an example: if the motorist is driving too fast or is texting while driving, he is less likely to stop in time to avoid hitting the vehicle in front.

Moreover, if the driver fails to brake in time, does not maintain control of the vehicle, fails to yield, or fails to maintain a safe distance between his car and the car in front of him, he is much more likely to be involved in a rear-end accident.

New York laws will hold the rear motorist liable for the accident, unless he can provide a valid explanation for why he was unable to avoid the accident.

Remember, this is not legal advice so contact a car accident attorney for more questions.

Can the motorist whose car is hit be at fault?

Although not the norm, there are certainly situations where this occurs. For example, if the driver stopped suddenly, then it may not have been possible for the motorist in the back to stop in time to avoid the car accident.

Of course, if you put your car in reverse, that too could result in a situation where the front car could be responsible.

If your brake lights malfunctioned at the time, or if you had pulled over at the side of the road but had not engaged your hazard lights, a court may rule that the motorist who hit you could not possibly have prevented the accident.

In any case, courts in New York may find one of the drivers partially responsible, as well.

What are New York's comparative negligence laws and how do they apply to a rear-end accident?

If a court in New York finds you were partially negligent in causing a rear-end accident, it will apply New York’s comparative negligence laws. First, “partially negligent” just means that you may been partially responsible for the accident. So, under comparative negligence laws in New York, your damages may be reduced by the percentage of your liability. So, If you were 20 percent liable in causing the accident, the court will reduce the damages you receive by 20 percent.

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