New York Criminal Attorney Blog

New York Criminal Defense Attorneys Tilem & Campbell know that criminal convictions in New York State can have far reaching consequences. As discussed in previous blogs on the subject knowing the legal terminology can have a significant impact on the outcome of a case. In addition, experienced attorneys know that individual localities and specific Courts may have their own specific definitions. At the New York Criminal Defense Firm of Tilem & Campbell we have the experience to know the practices of the Courts throughout New York State. Our attorneys also have the experience to know the significance of a criminal conviction.

New York Crime: (NY PL § 10.00(6)) A crime is a misdemeanor or a felony. When attempting to obtain a favorable plea bargain, an experienced and skilled attorney will fight hard for what is referred to as a “non-criminal disposition” (Please see our past blogs on the subject of ACDs, Violations and Plea Bargaining.) In other words, the defendant would agree to plead guilty; but not to a felony or a misdemeanor. Thus, the defendant would not be saddled with a criminal record and would therefore avoid the stigma and obstacles associated with a criminal record such as difficulty in finding gainful employment, credit difficulties, increased life insurance premiums, denial of certain licenses such as firearms and liquor, etc.

DEFINITION OF PERSON UNDER THE NEW YORK STATE PENAL LAW

New York Person: (NY PL § 10.00(7)) Under the Penal Law definition, a “person” is a human being, and where appropriate, a private or public corporation, a partnership, an unincorporated association, a government or a governmental instrumentality. For the exact definition of “Person” see PL § 10.00(7).

Cases and Statutes of Interest:

In has been held that a law partnership is a “person” which can be charged with a crime. People v. Lessoff & Berger, 159 Misc.2d 1096, 608 N.Y.S.2d 54 (N.Y. Sup. 1994). In Lessoff & Berger, the court ruled that a law partnership could be indicted for crimes involving fraud even if only one partner was involved in the alleged fraud because, reasoned the court, the other law partners benefited financially from the fruits of the one partner's fraudulent conduct committed in the name of the firm.

The unincorporated labor union known as the Newspaper and Mail Deliverers Union of New York and Vicinity was considered an unincorporated association was therefore a “person” as that term in defined in PL § 10.00(7) which could be held criminally liable under an enterprise corruption statute. People v. Newspaper and Mail Deliverers' Union of New York and Vicinity, 250 A.D.2d 207, 683 N.Y.S.2d 488 (1st Dept. 1998)

When referring to the victim of a homicide, the term “person” is specifically defined in PL § 125.05(1) as “a human being who has been born and is alive.” The “born and is alive” part of the definition when dealing with a homicide has the effect of excluding an abortion from all homicide statutes except those dealing specifically with abortion. See e.g., PL § 125.40 “Abortion in the second degree”

The First Department held that an infant was a “person” from moment of her birth. A doctor's conviction, therefore, arising out of injuries sustained by the infant in course of an improperly performed abortion was proper even if act that caused the injuries occurred prior to infant's birth.
People v. Hayat, 235 A.D.2d 287, 653 N.Y.S.2d 305 (1st Dept. 1997). This case makes clear that if a baby is born alive it is considered a person and the doctor can therefore be held criminally responsible for injuries the baby suffered prior to being born alive.

If you find yourself accused or charged with any criminal offense, contact one of the experienced New York Attorneys at Tilem & Campbell.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

Posted In: Legal Terms Defined

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As an experience New York litigator, I am in Court almost every day and handle cases throughout New York State. However, as a Westchester County lawyer, located in White Plains, New York, I have had the opportunity to handle a wide variety of cases in the Westchester County Courthouse, located in White Plains, New York just a short five minute walk from my office. I have handled criminal cases of all types in the Westchester County Courthouse (as a general rule only felonies end up in the County Court), from homicide to felony DWI to firearms and almost everything in between. In addition to the criminal cases having also handled many family law cases involving domestic violence, child support and visitation and civil litigation including personal injury, commercial and real estate litigation, I have been in the Westchester County Courthouse too many times to Count. In fact my experience at the Courthouse goes way back to my days a young law student, working for the now retired Hon. Joseph K. West formerly of the Westchester County Court.

The Westchester County Courthouse serves the vast and diverse Westchester County Community just to the north of the Bronx, a borough of New York City. Westchester County, a suburb of New York City contains the densely populated Cities of Yonkers, New Rochelle, Peekskill and White Plains and the more suburban areas such as Bedford, Scarsdale, Larchmont, Mamaroneck and Greenburgh but also contains the very rural areas of Somers, Lewisboro and Pound Ridge. Housing the Supreme Court of The State of New York, the Westchester County Court and The New York State Family Court, the most serious cases criminal, civil and family are all handled in this Courthouse.

The Courthouse recently underwent a major renovation adding an annex to house the County and Family Court. The annex added 22 courtrooms and related spaces to serve the two Courts housed in the new space. The centerpiece of the new space is a new, landscaped courtyard, visible from the common areas of the interior of the courthouse and accessible to Court visitors and employees.

With a population of almost one million people, according to the US Census Bureau and covering a land area of more than 432 square miles Westchester is a fairly densely populated area. Rockland County, Westchester's neighbor to the west by comparison has a mere 300,000 people in an area of almost 175 square miles. What that means is that the Courthouse is well used and on any given morning it is not unusual to find a line waiting at the elevator bank or to get through the magnetometer at the Courthouse entrance.

The Courthouse has been home to such notorious cases as the murder trial of Carolyn Warmus, the murder trial of Jean S. Harris accused of killing Scarsdale Diet Doctor Herman Tarnower and many other cases of regional or local notoriety.

Centrally located in White Plains and with plenty of municipal parking, the Courthouse is easily accessible by Metro North Train, Buses, Taxi and Car. For more information and for directions see the Office of Court Administration Website or contact Tilem & Campbell for experienced legal representation in the Westchester County Court.

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Posted In: SPOTLIGHT ON COURTHOUSES

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As discussed in our March 20, 2008 blog, guilty pleas to "violations" are commonly used
by the experienced NEW YORK CRIMINAL DEFENSE LAWYERS at TILEM & CAMPBELL to resolve more serious charges without putting our clients through the cost, expense, risk and time of a trial. At Tilem & Campbell we have successfully negotiated many criminal offenses down to a non-criminal disposition such as a violation. It’s important that your attorney know the particular court your case is pending in as Westchester County has plea-bargaining policies that differ from other counties such as Bronx County. Because of the importance of plea bargaining in general (see our March 7, 2008 post on Plea Bargaining DWI's) and using violations in plea bargaining (See our March 20, 2008 post), here is some more information on these critical weapons in the plea bargaining arsenal here at Tilem & Campbell.

Violation: (NY Penal Law § 10.00(3)). A violation is an offense for which a person can be sentenced up to 15 days imprisonment. A violation does not include a Traffic Infraction. In addition to falling under the definition of “offense”, a violation is classified as a “petty offense” under the CPL. See CPL § 1.20(39). Violations are not criminal offenses.

Every violation found in the Penal Law is expressly classified as a violation. Penal Law § 55.10(3). Any offense found in a statute outside of the Penal Law which is not expressly classified as a violation will be deemed a violation if it carries a potential term of imprisonment that does not exceed 15 days or the only sentence allowed is a fine. Even if the offense is designated a misdemeanor, felony or something else it is still deemed only a violation if it carries a potential term of imprisonment that does not exceed 15 days or the only sentence allowed is a fine. Penal Law § 55.10(3).

At Tilem & Campbell, when we enter into plea bargain negotiations with the prosecutor in a criminal case, we advocate strongly for a plea bargain wherein our client would plead guilty to a non-criminal offense such as Disorderly Conduct. Keep in mind, Tilem & Campbell is NOT a “read them and plead them” law-firm. Our experienced Criminal Defense Attorneys will only recommend that our clients take a plea deal if, and only if, we feel it is the best possible deal for our client. There are plenty of storefront hacks who will gladly take a small fee and then strong arm his or her client to take the first offer and get the case over with. If that is what you are looking for, Tilem & Campbell is NOT the law firm for you. However if you are looking for experienced and aggressive representation in New York, please contact us.

Posted by John Campbell | Permalink | Email This Post | Comments (2)

Posted In: Legal Terms Defined

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If you are charged with a “Traffic Infraction” such as speeding, passing a school bus, red light violation, etc, you should not plead guilty but instead should hire an attorney skilled in defending such charges. The lawyers at the New York Law Firm of Tilem & Campbell have experience in fighting thousands of tickets. The Website trafficticketexpess.com is also a great resource to find out more about your ticket and your right. Tickets issued in New York City (Bronx, Manhattan, Brooklyn, Queens and Staten Island), Rochester, Buffalo and parts of Brookhaven, Babylon, Islip, Huntington, Smithtown and Riverhead, in Suffolk County, your case will be handled by the New York State Department of Motor Vehicles Traffic Violations Bureau. If you received your ticket anywhere else in the State such as Westchester County, White Plains, New Rochelle, Mt. Vernon, Mamaroneck, Larchmont or other municipality, your ticket will be handled by the local criminal court. Below is a brief definition and explanation of a “Traffic Infraction”.

Traffic Infraction: A Traffic Infraction is any offense defined as a “traffic infraction” by VTL § 155. A “traffic infraction” is any violation of the VTL (except Articles 47 & 48) or of any ordinance, law, rule, regulation or order regulating traffic which are not misdemeanors or felonies. VTL § 155. Traffic infractions are not crimes and the punishment imposed for committing a traffic infractions shall not be deemed a penal or criminal punishment nor shall a conviction for a traffic infraction impair one’s credibility as a witness. Id.

A conviction for a New York traffic infraction can result in fines, the remote possibility of jail and fines imposed under the New York State Point System.

Where “traffic infractions” are handled in local criminal court, for purposes of procedure and otherwise, they shall be deemed misdemeanors and, with some limited exceptions, all provisions of law applicable to misdemeanors are applicable to “traffic violations” except no jury trials are permitted. Id. The Court of Appeals has stated that prosecutions for “traffic infractions” in local criminal court are generally governed by the rules of criminal law. People v. Phinney, 22 N.Y.2d 288, 292 N.Y.S.2d 632, 239 N.E.2d 515 (1968).

Despite this very clear language establishing that the procedures and law pertaining to misdemeanors shall apply to “traffic infractions”, one does not have any statutory speedy trial rights when charged with a “traffic infraction”. People v. Solomon, 124 Misc.2d 33, 475 N.Y.S.2d 749 (1984)

For the exact definition of “Traffic Infraction”, see NY VTL § 155.

What this means is that many legal “loop holes” exist that can be used to fight your traffic ticket. These loop holes can be used to get tickets dismissed but also used to obtain favorable plea bargains for drivers. The key is to have an experienced attorney, such as an experience New York Traffic Attorney from Tilem & Campbell who knows the procedures and can best fight your ticket.

Posted by John Campbell | Permalink | Email This Post | Comments (0)

Posted In: Legal Terms Defined , TRAFFIC

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While procedure in New York criminal actions and proceedings can vary from Westchester County to New York County and may even vary from one local court such as Yonkers Criminal Court to New Rochelle City Court definitions of terms and phrases generally are the same throughout the State. In other words, whether you are in Greenburgh, White Plains, Mamaroneck, Larchmont or New York City, the terms used in the criminal courts will have the same meaning. At the New York Defense Firm of Tilem & Campbell, our attorneys are very experienced in criminal defense and have a thorough understanding of the definitions relevant to criminal actions and proceedings.

Definitions of terms germane to criminal cases in New York are found in Section 2 of the New York State Criminal Procedure Law (CPL) and Section 10 of the New York State Penal Law (Penal Law). I will first discuss the definitions of terms found in Section 10 of the PL as they are applicable to the CPL unless the CPL contains a different definition of the term. CPL § 1.20

Offense: The definition of “offense” is found in Section 10 of the Penal Law. It applies to the CPL unless the CPL contains a different definition. An “offense” is any violation of law, including state and local laws as well as local ordinances, for which a term or imprisonment or a fine may be imposed. See PL § 10.00(1). Any “crime”, including a “felony,” “misdemeanor,” “petty offense,” “violation” and/or “traffic infraction” are “offenses”. It’s interesting to note that the term “petty offense” includes the non-criminal offenses of “violation” and “traffic infraction”. CPL § 1.20(39)

To summarize, an “offense” is a violation of any law for which imprisonment or a fine may be imposed including:

• State Laws
• Local Laws
• Local Ordinances
• Crimes
• Felonies
• Misdemeanors; and
• Petty offenses which include Violations and Traffic Infractions.

If you find yourself or a loved one charged with any offense, be it a speeding ticket, felony gun offense, prostitution related offense or anything else contact one of the experienced New York Criminal Lawyers at Tilem & Campbell.

Posted by John Campbell | Permalink | Email This Post | Comments (0)

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As discussed in my previous blog (Legal Definitions, March 14, 2008), convictions for misdemeanors and felonies in New York State can leave a person convicted of a crime with a permanent criminal record and many other “collateral” consequences such as effecting employment, immigration and civil rights. Here at the New York Criminal Defense Law Firm, Tilem & Campbell, preserving a clients “clean” record is often our paramount concern. Many clients however want to preserve their “clean record” without the expense and risk of taking their case to trial. (Please see our March 7, 2008 blog for some general principles of plea bargaining.)Moreover, New York does not have any mechanism for “expunging” a criminal record once you have one. So the stakes are high and the effects are long lasting.

ACD

New York has two options than can often help; they are the Violation and the ACD. The ACD which stands for Adjournment in Contemplation of Dismissal is often the best option for a person accused of a relatively minor crime or offense in New York. If an accused is granted an ACD their case is adjourned for a period of either six months or a year depending on the offense. (Marihuana and domestic violence have one year ACD’s.) On the next date (six months or one year later), if the accused has stayed out of trouble and otherwise abided by the terms of the ACD, the accused does not have to appear in Court and the case will be dismissed and the record sealed. If the person is rearrested or does not live according to the terms of the ACD the case is restored to the Courts calendar and the prosecution begins where it was stopped when the ACD was granted. In my seventeen year legal career, both as a New York County Prosecutor and a Criminal Defense Attorney, I have seen an ACD restored only a handful of times. The net result of an ACD, is almost always a dismissal and a sealed record.

VIOLATION

The New York State Penal Law defines several offenses that are not crimes. The two most common examples are Disorderly Conduct and Harassment. Although these offenses are defined in the New York State Penal Law and they carry maximum sentences of 15 days in jail, they are not crimes but are called Violations; they are neither misdemeanors nor felonies. A conviction for a violation in New York State will not leave you with a criminal conviction. In addition the Criminal Procedure Law in New York (CPL) requires Courts to seal the record of conviction of a violation. It is important to remember that the sealing of the record is under a different section of the CPL than the sealing for an ACD or, for example, a dismissal and that sealing is less complete than if the matter is dismissed.

It is important to think toward the future. Many job applications and other applications will ask if you have “ever been convicted of a crime.” If you receive an ACD or a violation the answer is clearly no. However, certain applications such as the application for admission to bar or to become a police officer may ask about arrests. Neither an ACD nor a violation can undo the fact that you were arrested and you must answer truthfully that you have been arrested. However, an arrest in and of itself is generally not sufficient to keep you out of the bar or to keep you from becoming a police officer if you are truthful about what happened. In any case, you should consult an experienced criminal defense lawyer such as one of the lawyers at Tilem & Campbell if you are unsure how to answer a question on an application after receiving an ACD or a conviction for a violation. As a free service to our clients, we do not charge for over the telephone conversations about questions on applications even years after our representation has ended.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

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Westchester based Criminal Defense Law Firm, Tilem & Campbell, is following with great interest the case of District of Columbia v. Heller which was argued in the United States Supreme Court yesterday morning. Peter H. Tilem, Senior Partner at the firm is a former member of the Firearms Trafficking Unit of the New York County District Attorney’s Office and has handled numerous firearms and weapons related cases both as a prosecutor and a criminal defense attorney. The firm, Tilem & Campbell owns the domain name handgunattorney.com and has handled numerous firearms and weapons related cases in both Federal and State Court.

The Heller case involves a Federal challenge to the District of Columbia ban on private possession of handguns. This marks the first Second Amendment case considered by the United States Supreme Court since 1939. The question being considered by the Supreme Court in this case is whether the District of Columbia ban violates the rights of citizens who, though not part of any militia, wish to keep handguns in their home. The United States Court of Appeals for the District of Columbia Circuit has already ruled that the ban is unconstitutional and has struck down the DC law. The decision from the U.S. Supreme Court is likely to have far reaching ramifications.

If the Supreme Court agrees with the Circuit Court, it will mark the first time in this nation’s history that the Supreme Court has applied the Second Amendment to citizens not a part of a State Militia and therefore can have an impact on the gun laws of States throughout the Country. New York City and other localities throughout New York State that have particularly restrictive gun laws may be profoundly affected by the Decision particularly if the Supreme Court Decision upholds the Circuit Court ruling.

While it is often difficult to predict how the Court will rule from the questioning of the Justices, some of the questioning today seemed to indicate that at least some of the Justices will vote to uphold the Circuit Court decision which struck down the DC Law. Chief Justice Roberts asked the lawyer arguing on behalf of the District of Columbia what was reasonable about a total ban and likened the ban to a ban on newspapers in violation of the First Amendment.

While the Supreme Court is not expected to rule for several months, this Firm will continue to monitor the case and report on any decision as soon as becomes available. This Firm will be preparing constitutional challenges to New York gun laws on behalf of our clients in appropriate situations, should the Supreme Court uphold the Circuit’s decision.

Posted by John Campbell | Permalink | Email This Post | Comments (0)

Posted In: GUN CRIMES , IN THE NEWS

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At the New York Criminal Defense Law Firm of Tilem & Campbell our lawyers recognize that understanding criminal procedure is sometimes as important, if not more important, than understanding the substantive criminal law. Sadly, our criminal defense attorneys will agree that procedure in criminal actions varies drastically from county to county. It even can vary drastically from one local criminal court to another within the same county. That is to say that procedure in New York County (Manhattan) can vary drastically from procedure in Westchester County but even within Westchester County procedure can vary drastically from, for example, the Yonkers local Court to the Greenburgh local Court. Local custom can make the most experienced criminal defense attorney appear like a novice when he or she appears in an unfamiliar court. That is why it is important to utilize lawyers, such as ours, who are familiar with the customs and practices of Courts throughout New York State.

The procedure followed in criminal actions and criminal proceedings in the state courts of New York is found the New York Criminal Procedure Law (CPL). CPL § 1.10. Some provisions of the CPL are specifically applicable under the Family Court Act. See e.g. In re G 68 Misc.2d 80, 326 N.Y.S.2d 483 (N.Y.Fam.Ct. 1971)(provisions of CPL which that fall within the requirements of due process must be applied to juvenile proceedings). The provisions specifically applicable under the Family Court Act will be discussed later. Procedure in federal criminal cases is found in the Federal Rules of Criminal Procedure.

The CPL became effective September 1, 1971 and replaced the Code of Criminal Procedure. Unlike the Code of Criminal Procedure (the Code), the current CPL is found in the New York State Consolidated Laws. The Criminal Procedure Law is cited as, or in other words referred to as; the C.P.L. NY CPL § 1.00. As with the CPL, the Code was applicable in all criminal actions and proceedings. Code Cr.Proc. § 962.

Cases interpreting and applying the old Code are many times still applicable to, and useful in, analyzing the current CPL. The New York State Legislature originally enacted the Code to make a uniform and comprehensive system of criminal practice throughout the State. People v. Bartone, 12 Misc.2d 926, 172 N.Y.S.2d 976 (N.Y.Co.Ct.1958). The Legislature has the power to create statutes governing the procedure in criminal actions. People v. Cully, 33 N.Y.Crim.R. 219, 167 A.D. 332, 153 N.Y.S. 125 (1st Dept. 1915). Courts construed the Code liberally in an effort to systematize and coordinate the practice and procedure in criminal actions. People v. Bailey, 103 Misc. 366, 171 N.Y.S. 394 (N.Y.Sup.Apr1918).

It is important to note that there are some actions that clearly affect criminal actions and proceedings but are most definitely civil in nature and therefore, guided by the Civil Procedure Laws and Rules (CPLR). For example, habeas corpus proceedings are covered by Article 70 of the CPLR, People ex rel. Curtis v. Kidney, 225 N.Y. 299, 122 N.E. 241 (1919), while mandamus and prohibition actions are governed by Article 78 of the CPLR. However, the CPLR has no application when dealing with procedure in a criminal action or proceeding. People v. Knobel, 94 N.Y.2d 226, 230, 701 N.Y.S.2d 695, 697-98, 723 N.E.2d 550 (1999)

Posted by John Campbell | Permalink | Email This Post | Comments (0)

Posted In: Legal Terms Defined

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Here at the New York Criminal Defense Firm of Tilem & Campbell we often represent defendants who, in addition to being charged with Driving While Intoxicated or Driving While Ability Impaired (please see previous posts), refused to submit to a chemical test. Almost always, the chemical test in question is a Breathalyzer or similar machine such as an Intoxilyzer which is usually used in New York City or DataMaster which is often used in Westchester County. Our attorneys are often confronted with questions about the consequences of the refusal. There are no New York State criminal consequences; however, there are other consequences that result from a refusal. First, the refusal can be introduced at trial as what is known in New York as consciousness of guilt evidence. Second, at the time of your arraignment, the court will immediately suspend your license pending the prosecution of your case.

Whether one should refuse a chemical test or not is a complex question well beyond the scope of this Blog. As always, my advice is to consult with a skilled and experienced criminal defense attorney. This Blog provides general informative reading but is not a substitute for personalized legal advise.

Essentially, any person who operates a motor vehicle in New York is be deemed to have given consent to a chemical test of, among other things, his or her breath for the purpose of determining the alcoholic and/or drug content of that person’s blood. See generally VTL 1194(2)(a). However, before an officer may request that a motorist take a chemical test, either a lawful arrest for Driving While Intoxicated or Driving While Ability Impaired, or a positive result on a lawfully requested breath screening test must have occurred. (Note: a breath screening test is NOT a Breathalyzer but is instead a test of one’s breath (not blood) given by an officer on the side of the road. The machine used is a small handheld device. The results can be used to establish probable cause to arrest for DWI or DWAI but the results are not admissible at trial. Breath Screening Tests will be discussed in subsequent Blogs.)

Where a motorist, after being properly warned of the consequences, refuses to take a lawfully requested chemical test, his or her license is immediately suspended (at arraignment) and, if the defendant subsequently loses his or her Refusal Hearing, revoked for refusal to submit to the chemical test (most likely a Breathalyzer or similar machine). NY VTL 1194(2)(b)(1). Please view the diagram at tilemandcampbell.com to see specific revocation periods. Where a defendant refuses, the officer must prepare a “Report of Refusal” which is given to the judge at arraignment.

The arraignment court is then required to temporarily suspend the defendant’s license pending the outcome of a DMV Refusal Hearing. VTL 1194(2)(b)(3). (Note: in New York City arraignment usually occurs within about 24 hours, the accused is held in jail for that period pending the arraignment but in most courts in Westchester County a summons is issued and the arraignment can take place weeks later.) The arraignment court must then notify the defendant of his or her “Refusal Hearing” date. In that regard, VTL 1194(2)(b)(4) requires that the arraignment court provide the defendant with a scheduled Refusal Hearing date.

The Refusal Hearing is an excellent opportunity for your attorney to cross-examine the officer without the prosecutor present. Because the officer need not appear but instead, may simply provide his report, it is sometimes wise to subpoena the officer to the hearing. The Refusal Hearing itself will be addressed in subsequent Blogs.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (5)

Posted In: DWI/DWAI

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Learning New York Criminal Law is often similar to learning a different language. Every legal term often has a very specific legal definition and sometimes that language can even differ from County to County. Here at the New York Criminal Defense Law Firm of Tilem & Campbell part of our mission is to help our clients understand exactly what they are facing and how the legal system works. That often means giving definitions of legal terms that lawyers, judges and other legal professionals take for granted. Our mission also requires us to know this different terminology and how it’s used in the many different Courthouses around the State.

Here at the New York Law Firm of Tilem & Campbell we are truly a New York State law firm. With two former prosecutors, Peter Tilem who spent ten years at the New York County District Attorney’s Office and Jeremy Saland who spent seven years at the New York County District Attorney’s Office, we handle cases literally throughout the state. Attorneys at this firm have appeared from Manhattan to Suffolk, Westchester to Albany, Brooklyn to Buffalo and most places in between. That experience means that our lawyers understand the legal terms as they are used throughout the State and are in a position two explain those terms to our clients.

This article is the first of a several part series in which I will define basic legal terms that our clients and others charged with a crime need to understand. Today, I will start with two very basic terms and define them is easy to understand terms. Where terms that I define in this series, have different meanings in different Courthouses I will explain that as well.

FELONY

In New York a felony is the most serious type of crime for which an accused person faces more than one year in prison. Felonies are broken up by classes from class “E” being the least serious felony and a class “A” being the most serious. A class “E” felony in New York carries a maximum penalty of up to Four Years in prison and a class “A” felony carries a maximum sentence of Life. These are maximum penalties and it still possible to get a local jail sentence or even a non-jail sentence for many felonies.
It is important to remember that a conviction for a felony in New York has several long-lasting effects such as a permanent criminal record, enhanced penalties for future felony charges, the loss of certain civil liberties such as the right to vote and hold certain jobs and possible immigration consequences if you are not a citizen.

MISDEMEANOR

In New York a misdemeanor is the least serious type of crime broken down into two classes, class “A” and Class “B” misdemeanors. In addition certain misdemeanors that are defined outside the Penal Law such as the Vehicle & Traffic Law are called “unclassified misdemeanors. A misdemeanor is a crime for which an accused faces one year in jail or less. The maximum penalty for a class “A” misdemeanor is one year in jail and the maximum term for a class “B” misdemeanor is ninety days in jail.

Remember! Even though misdemeanors are less serious they are still crimes and whether class “A” or “B” still carry long-lasting consequences including a permanent criminal record, possible immigration consequences if you are not a citizen and the conviction for certain misdemeanors can elevate certain misdemeanor crimes to felonies. For example, a conviction for DWI can cause a second DWI to be charged as a felony.

A little knowledge is a dangerous thing and the information contained in this article should not be considered a substitute for the advice from an experienced New York Law Firm such as Tilem & Campbell.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (0)

Posted In: Legal Terms Defined

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As promised, here is a the video of New York Criminal Defense Attorney John Campbell commenting on the Governor Spitzer prostitution scandal.

As discussed in my previous post John Campbell, the managing partner here at the White Plains, New York law firm of Tilem & Campbell which owns the domain name escortattorney.com was asked to comment on the scandal and specifically whether Governor Spitzer was likely to be charged. Please see below.

Posted by Peter Howard Tilem | Permalink | Email This Post | Comments (1)

Posted In: IN THE NEWS , PROSTITUTION

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RNN, the Regional News Network just came by the office to get comments from Criminal Defense Lawyer John Campbell the managing partner here at the firm about the prostitution and Mann Act issues in which New York Governor Elliot Spitzer finds himself embroiled. The firm has handled numerous prostitution related cases and while John and I are often the “go to” lawyers here in Westchester County for the media to get their legal comments, it is nice to be able to comment on an issue with which we are so familiar.

Tilem & Campbell, PC owns the web domain name escortattorney.com and has had the opportunity to represent clients in a wide variety of prostitution related cases that go far beyond simple prostitution. As such, John was a natural choice to comment on the Governor Spitzer situation.

John explained to RNN that while the Governor’s conduct may have technically violated the Mann Act, it is unlikely that he will be prosecute because customers also referred to as “Johns” (no pun is intended) are usually not prosecuted under the Mann Act. John explained that often, federal investigations often focus more on the organizers and managers and the prostitutes or customers.

John also speculated that a deal would be worked out in which the Governor would be allowed to resign in exchange for an agreement that he would not be prosecuted. Elliot Spitzer has hired a large Manhattan based law firm to represent him which seems to indicate that he at least believes that he will have upcoming legal issues.

When the video from RNN becomes available we will post the link on this Blog.

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Posted In: IN THE NEWS , PROSTITUTION

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As all New York Criminal attorney's know, very, very few criminal cases actually go to trial. The vast majority of cases are resolved with a plea bargain. This is especially true in the busiest Courts in New York such as Brooklyn, Manhattan and the Bronx where calendars of 100 cases or more per day are not uncommon. In fact, without plea bargaining, the criminal justice system would simply collapse.

The United States Supreme Court has recognized plea-bargaining as both essential and desirable. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). Plea-bargaining results in several benefits: (1) the relief of court congestion; (2) alleviation of the risks and uncertainties of trial for both the government as well as the defendant:, and (3) its information gathering value that results from the government offering favorable pleas in return for cooperation, information and/or testimony. People v. Glendenning, 127 Misc.2d 880, 487 N.Y.S.2d 952 (N.Y.Sup. Westchester Cnty 1985).

In New York DWI cases, several factors come into play when plea bargaining takes place. In virtually all cases, the prosecutor is concerned with (1) the defendant’s prior criminal history, especially prior DWI or DWAI arrests (prosecutors typically consider arrests the same as convictions for plea purposes); (2) whether anyone was injured; and (3) whether there was any property damage. In DWI cases other considerations are whether there was an accident and whether the defendant refused to take a chemical test (i.e. a Breathalyzer). The DWI defendant also must be cognizant of the policy of the District Attorney’s Office in the particular county he or she is charged. For example, in Westchester, there will be no offer if the defendant refuses or “blows” .14 or above.

Finally, with rare exception, the law in New York requires that a defendant charged with Driving While Intoxicated plead guilty to Driving While Intoxicated (DWI) or Driving While Ability Impaired (DWAI). Therefore, a plea bargain will usually result in an alcohol related conviction (DWI or DWAI). Of course, the main goal in plea bargaining DWI cases is to negotiate a plea bargain wherein the defendant pleads guilty to the violation of DWAI. If, however, the district attorney, after reviewing the available evidence, determines that a DWI or DWAI conviction is not warranted, the district attorney may consent, and the court may allow a plea of guilty to another charge in satisfaction of the DWI charge. In such a case, the court must set forth on the record the basis for such disposition.

As one can see, an attorney who handles DWI cases must be well versed in the general plea policies that affect every criminal case, the particular District Attorney’s office policies germane to DWI’s as well as the statutory plea restrictions applicable to DWI cases. Clearly, those charged with a DWI or DWAI need an attorney experienced with such cases.

Posted by John Campbell | Permalink | Email This Post | Comments (0)

Posted In: DWI/DWAI

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