New York Criminal Attorney Blog

Those drivers who receive the new E-Tickets that police officers and New York State Troopers conveniently print from their police cars should take note that one judge is Oneonta has ruled that the tickets are not legal and recently dismissed an Aggravated DWI case as a result. Ruling in the case of People v. Nathaniel White, City Court Judge Lucy Bernier ruled that the actions of the police officers in entering the data into the computer are indistinguishable from mere word processing and therefore the tickets are not affirmed or sworn under penalty of perjury as required by law.

The White ruling conflicts with a 2005 ruling by a City Court judge in Rochester that described the process of filling out the electronic ticket troubling but found that the tickets were ultimately legal. In the Rochester case, the City Court Judge found that the supporting deposition which was signed rescued the defective traffic ticket. The White ruling however, is both lengthy and well reasoned and will likely be appealed. In the interim, New York Traffic Court lawyers and New York DUI attorneys will continue to fight this issue.

If you or any family member has been charged in New York with any DWI, Speeding ticket or other traffic infraction or traffic misdemeanor investigate your rights. Contact one our experienced attorneys for a free over-the-phone consultation.

In addition to the mandatory reporters I previously discussed, the New York Social Services Law specifically authorizes “any person” to make a report of suspected abuse or maltreatment when they have reasonable cause to believe a child is the victim of abuse or maltreatment. (Soc. Ser. Law § 414). While seemingly supported by good intentions, the ability of anyone to make a purely anonymous report of abuse or maltreatment poses a tremendous problem because New York treats any complaint, whether from a known source or a purely anonymous caller, the same. Each triggers what can probably be described as the most intrusive, humiliating, frightening and, far too often, constitutionally improper investigation into the inner, most private workings of a family. And to repeat, this can all be triggered by a purely anonymous “tip”.

It is because New York treats anonymous reports the same as reports from known mandatory reporters; the nosey neighbor, the angry neighbor, the spurned ex-lover, the “do-gooder”, the disgruntled parent, grandparent, uncle, aunt or any variety of wackos can throw one’s life into turmoil with a simple anonymous report to an abuse hotline. There have been cases where families have gone through entire investigations and hearings because a passing motorist saw a child “unattended” in the driveway of a home. Imagine you are watching your child from the porch, just 10 feet away, and because some passing motorist sees only your child, you become the subject of an abuse or neglect investigation.

If the allegations contained in the report, whether anonymous or from a know source, “could reasonably constitute a report of child abuse or maltreatment”, or “if true would constitute child abuse or maltreatment”, the report must be transmitted to the appropriate local child protective agency for investigation (Social Services Law § 422[2][a], [b] ). Therefore, as long as the false report made by an anonymous ex-boyfriend, disgruntled ex-spouse, nosey neighbor or whomever, makes out a plausible claim of abuse or maltreatment, you will be investigated. I have personally handled cases where a single parent has been the subject of repeated false anonymous reports all of which resulted in an investigation.

If you have been notified that you are the subject of a child abuse, neglect or maltreatment investigation by a child protective services agency or by the police, you have rights and you must know them. Contact Tilem & Campbell toll free at 1-877-377-8666 for a free consultation or visit www.tilemandcampbell.com.

In an effort to identify those children who might be the victim of abuse or neglect in New York, certain individuals who are in a position to observe signs of abuse and/or neglect are required by law to make a report when they have reasonable cause to suspect that a child coming before them in their professional or official capacity is abused or maltreated. These individuals are referred to as “mandatory reporters”. (See Soc Ser. Law § 413).

Almost all reports of abuse or maltreatment are made by “mandatory reporters”. The list of mandatory reporters is quite long and includes physicians, dentists, nurses, social workers, school officials, substance abuse counselors, police officers, and assistant district attorneys. When one of these mandatory reporters has reasonable cause to believe your child has been abused or maltreated, they are required by law to report such suspected abuse or maltreatment in accordance with Soc. Ser. Law § 413(1)(b) & (c).

Employers of mandatory reporters must provide new hires with written information explaining their mandatory reporting requirements. (See Soc Ser. Law § 413(2)). Any state or local agency that licenses or issues certificates to day care facilities shall provide the licensee with written information regarding mandatory reporting requirements. (See Soc Ser. Law § 413(3)). Finally, any agency, employer or other organization that employs mandatory reporters who travel, in the normal course of their duties, to where children reside must provide those mandatory reporters with information or how to recognize an unlawful methamphetamine laboratory. (See Soc Ser. Law § 413(4)). As a result of mandatory reporting laws, most reports of child abuse, neglect and/or maltreatment are made by school employees or doctors who observe signs of abuse, neglect and/or maltreatment.

If you are the subject of a Child Protective Services, Administration for Children’s Services or a police investigation, contact Tilem & Campbell toll free at 1-877-377-8666 or visit www.tilemandcampbell.com for more information. You do have rights and you should know them.

As I have explained in my previous blog, the common law, the Penal Law and the Family Court Act all, in theory, allow a parent to inflict reasonable corporal punishment. This does not mean, however, that a parent may freely beat his or her child. To the contrary, “a parent may use some physical force in disciplining their children, but it has to be reasonable and in no way gives them permission to cruelly beat their children.” People v. Prue, 219 A.D.2d 873 (4th Dept. 1995). Similarly, in Matter of Rodney C., 91 Misc. 2d 677 (1977), the Family Court of Onondaga County held that parents do not have an unlimited license to use physical force against their children.

In Monroe v. Blum, 90 A.D.2d 572 (3rd Dept.1982) the Appellate Division, Third Department held that marks on a 16 year-old child's lower back and buttocks, caused by the father striking the child with a plastic cord and belt, in addition to the fact that the father threw milk on the child, amounted to substantial evidence of excessive corporeal punishment.

In Matter of Jonathan C., 195 A.D.2d 554, 600 N.Y.S.2d 480 (2nd Dept.1993), the Appellate Division, Second Department upheld a finding that a mother had neglected her child where she admittedly struck her five-year-old son, causing him to lose consciousness. The Court concluded that the child's physical condition was impaired by the unreasonable infliction of excessive corporal punishment and upheld the placement of the child with the Commissioner of Social Services for a period of nine months.

As shown by the above cases, a parent would be ill advised to dispense unreasonable, unnecessary and excessive corporal punishment thinking they can rely on their common law and statutory right to inflict corporal punishment. Further, what many parents don’t realize is their right to utilize reasonable corporal punishment is in reality a defense under New York law. That means that the parent doesn’t avoid the prosecution for assault on their child or the finding of abuse or neglect by simply telling investigators they were simply disciplining their child. That’s not how it works at all. In reality, the slightest indication of corporal punishment will result in a Child Protective Services investigation and possible police investigation. The parent can really only utilize the “corporal punishment defense” after they have been indicated as an abuser or neglecter or charged with some type of criminal assault against their child. And while the parent might win in the end, it will take months if not years to do so and during that time, orders of protection will be issued, the parent and/or child might be ordered to counseling and the parent might be excluded from the home. So the question becomes, does a parent’s common law and statutory right to inflict reasonable corporal punishment amount to anything more than hollow, worthless words?

For more information about child abuse and neglect cases including any criminal charges resulting from the alleged abuse or neglect of a child, contact Tilem & Campbell toll free at 1-877-377-8666 or visit us on the web at www.tilemandcampbell.com.

While virtually all investigators with Child Protective Services, members of law enforcement, prosecutors and even judges have chosen to totally disregard a parent’s right to use reasonable corporal punishment, New York law permits parents to use reasonable corporal punishment to maintain discipline. Indeed, Penal Law 35.10(1) states in substance that a parent may use “physical force ... when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of [the child]”. Furthermore, the Family Court Act only prohibits the infliction of “excessive corporal punishment” (Family Court Act § 1012(f)(i)(B)). Therefore, corporal punishment that is not excessive does not run afoul of the Family Court Act. What this means is that a parent who uses reasonable corporal punishment in New York should not find themselves criminally charged with Assault or the subject of a child abuse investigation.

Perhaps New York Child Protective Services, the New York City Administration for Children’s Services, members of law enforcement, doctors, nurses, school teachers and those nosey neighbors next door should be reminded that “[i]t is important that we not lose sight of a parent's common-law privilege to use reasonable physical force to discipline his or her children.” In re Peter G., 6 A.D.3d 201, 206, 774 N.Y.S.2d 686, 689 (1st Dept. 2004).

However, parents would be ill advised to believe they can actually inflict reasonable corporal punishment. Despite the fact that the Family Court Act only prohibits excessive corporal punishment, and despite the fact that a parent’s right to utilize reasonable corporal punishment is as old as mankind, and despite the fact that the Penal Law allows a parent to use physical force to maintain discipline or to promote the welfare of their child, almost any allegation of corporal punishment brought to the attention of your child’s teacher, doctor, other mandatory reporters or just your nosey neighbor will undoubtedly result in an investigation by Child Protective Services and maybe even the police.

The reality is, the Department of Social Services, Child Protective Services, the Administration for Children’s Services, social workers, pediatricians, law enforcement, school administrators and others have simply chosen ignore a parent’s right to inflict reasonable corporal punishment. Unfortunately, a parent’s right to utilize reasonable corporal punishment had devolved into nothing more than meaningless words. Very rarely will a courageous judge find that the parent was inflicting permissible corporal punishment thereby exonerating that parent. But even in such a situation, that parent will have already gone through a year or more of a living hell tangled up in the Family Court and/or Criminal Court before he or she was exonerated.

If you have any questions regarding child abuse and neglect or if you are the subject of a child abuse or neglect investigation, contact Tilem & Campbell toll free at 1-877-377-8666 for a free consultation or visit us on the web at www.tilemandcampbell.com. You do have rights and you should know them.

As previously discussed, New York Child abuse cases that allege that a child was "abuse" as opposed to neglected may be difficult to prove since abuse requires proof of the infliction of a physical injury caused by other than accidental means that causes a substantial risk of death or other or serious or protracted disfigurement, or a protracted impairment of the child’s physical or emotional health or the protracted loss or impairment of the function of any bodily organ. 18 NYCRR § 432.1(a)(1); Fam Ct. Act § 1012(e)(i).

Clearly, to meet the definition of an abused child due to the infliction of a physical injury, the physical injury must be fairly serious. Indeed, it must cause a substantial risk of death or other serious and/or protracted injuries. Therefore, excessive corporal punishment that does not cause a substantial risk of death or the other serious and protracted conditions listed in the definition of “abused child” found in 18 NYCRR § 432.1(a)(1) and Fam Ct. Act § 1012(e)(i) but did otherwise constitute excessive corporal punishment would most likely be deemed a form of neglect as defined in Fam. Ct. Act § 1012(f)(i)(B) or maltreatment as defined in 18 NYCRR § 432.1(b)(1)(ii).

For example, in the Matter of Rodney C., 91 Misc.2d 677, 682, 398 N.Y.S.2d 511, 516 (Fam.Ct., Onondaga Co., 1977), the Court ruled on three separate cases of alleged abuse. In evaluating the first case, the Court held that 26 marks on the back of a seven year old boy still visible three days after his mother beat him were not so excessive as to be life-threatening or likely to cause permanent disfigurement and therefore the child was not an abused child but was instead a neglected child.

In the second case, the Court ruled that punishment which required an 11 year old boy to hold his ankles and keep his knees straight for variable lengths of time causing him to scream, constituted excessive use of corporal punishment that did not rise to the level of abuse but instead constituted neglect. Id. In the final case, the Court ruled that punishing a ten-year-old boy by forcing him to stand in a contorted position causing him to scream and to vomit, did not rise to the level of abuse but did result in a finding of neglect. Id.

If you are the subject of a New York State Child Protective Services investigation or a police investigation involving allegations of child abuse or neglect, call Tilem & Campbell toll free at 1-877-377-8666 to schedule a free consultation.