New York Criminal Attorney Blog

New York criminal defense attorneys know that a Desk Appearance Ticket (DAT) can be your best friend. Its great for the attorney who doesn't have to go to Court in the middle of the night to do an arraignment, its great for the client who doesn't have to be locked up for 24 hours or more while they are waiting to see a judge and its even good for the police who can process the arrest at their leisure and who do not have to worry about racking up police overtime while processing the arrest.

Briefly, a DAT in New York is simply a notification to a person arrested that they must appear in Court on a future date in connection with certain specific charges. The police officer or prosecutor will then file those charges in Court. It permits a police officer to release the person prior to the charges being filed in Court and prior to seeing a judge.

DATs are governed by New York CPL Article 150 which limits when police officers may issue Desk Appearance Tickets. In sum, they may only be issued for Class A and B misdemeanors, Class E felonies and violations. There are also some specific exceptions such as certain Escape, Absconding or Bail Jumping charges. People charged with those crimes or more serious felonies will not be eligible for Desk Appearance Tickets.

It should be emphasized that Desk Appearance Tickets are issued at the discretion of the police. Ultimately, it is the police who will decide whether or not to issue a person a DAT. Ironically, in New York City, where a person can spend more than 24 hours waiting to see a judge and winding their way through the Central Booking Process, fewer cases are DAT'd than in other places where the arraignment process can be much shorter. In New York City, charges such at DWI, DWAI, Aggravated Unlicensed Operation of a Motor Vehicle are almost never DAT'd whereas outside of New York City they usually are DAT'd.

The statute permits police officers to accept bail as a condition of getting a Desk Appearance Ticket but in New York City the police will not accept bail. Bail amounts can range as a a maximum of $750 for an "E" felony down to a maximum of $100 for a violation.

DATs are a useful tool and for a person who is going to be arrested, they can be a huge benefit. If you are going to turn yourself in to the police an experienced attorney should explore whether or not you are eligible for and whether you will receive a desk appearance ticket. In many cases everyone wins when the accused is issued a DAT.

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Posted In: CRIMINAL PROCEDURE , Legal Terms Defined

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The Queens District Attorney’s Office announced the indictment of a Dutch man for his role in spraying graffiti on a subway car in Queens and then taking police on a foot pursuit on the subway tracks. The cases focuses attention on the serious charges associated with graffiti in New York including Criminal Mischief, Making Graffiti and Possession of Graffiti Instruments. It also focuses attention on “Graffiti Tourism” a growing phenomenon in this area.

Criminal Mischief in New York is a crime involving damaging property (either intentionally or recklessly) and is generally a misdemeanor punishable by up to one year in jail. Damaging property in an amount exceeding $250 can be charged as a class “E” Felony punishable by a prison term of up to 4 years and damaging property in an amount exceeding $1500 is a class “D” felony punishable by up to seven years in prison.

The problem is that the threshold amounts have not been changed since 1971 and when the New York State Legislature amended the Grand larceny Statutes in 1986 they forgot to amend the Criminal Mischief statutes. In practice, that means that if you steal property worth $300 you are only guilty of a misdemeanor but if you damage property worth $300 you are guilty of a felony.

In 1992 the New York State Legislature added Making Graffiti and Possession of Graffiti Instruments to the New York State Penal Law. Making Graffiti is a class “A” misdemeanor punishable by up to one year in jail and Possession of Graffiti Instruments is a class “B” misdemeanor punishable by up to 90 days in jail.

Making Graffiti involves painting, etching, covering or drawing upon either private or public property with the intent to damage property. Possession of Graffiti Instruments involves possessing tools commonly used to make graffiti such as paint or magic markers under circumstances that show an intent to use those tools to damage property.

New York City and other cities such as White Plains, Yonkers and New Rochelle have worked hard recently to rid their streets of graffiti. Those charged with making Graffiti or other Graffiti related charges often face very aggressive prosecution. It is important to remember that all offenses relating to graffiti are crimes and one charged with any of these offenses should contact an experience New York Criminal Defense Lawyer as soon as possible.

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Posted In: IN THE NEWS , Legal Terms Defined

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The New York Penal Law defines several different crimes such as Assault, Robbery and Burglary that have serious physical injury as an element. The definition of serious physical injury is complex and if a person finds themselves charged with a crime in which serious physical injury is an element they should consult an experienced New York criminal defense attorney as quickly as possible.

As the name implies, serious physical injury involves injury which is far more involved than physical injury which is defined in our April 16, 2008 blog. In a nutshell, Serious Physical Injury is a physical injury which:
• Creates a substantial risk of death;
• Causes death;
• Causes a serious and protracted disfigurement;
• Causes a protracted impairment of health; or
• Causes a protracted loss or impairment of the function of any bodily organ.

(For the exact wording of Serious Physical Injury see NY Penal Law § 10.00(10))

The difference between causing a “physical injury” and a “serious physical injury” is the former typically results in a misdemeanor charge while the latter will result in a felony charge. If charged with a crime involving injury, you’re criminal defense attorney must be well versed in the statutory definitions of “physical injury” and “serious physical injury” as well as the cases interpreting these definitions. You’re attorney might consider attacking the sufficiency of the accusatory instrument (the written accusation against you such as an indictment or information) because the injury alleged, while serious on its face, in reality does not fit the statutory definition of “serious physical injury”. For an example, see People v. Jerreld below. Serious physical injury is an element of several criminal offenses including but not limited to, Assault in the Second Degree.

ILLUSTRATIVE CASES CONCERNING SERIOUS PHYSICAL INJURY

People v. Coy, 45 A.D.3d 1050, 845 N.Y.S.2d 854 (3rd Dept. 2007), serious physical injury was found and an Assault in the Second Degree conviction upheld where the victim suffered bruised ribs, a broken clavicle and four broken bones in her face which required the surgical implantation of support plates, extensive bruising as well as lacerations which required stitches. Furthermore, she remained in intensive care for several four days and the numbness her face, the indentations in her head and her need for pain medication were likely to be permanent conditions.

People v. Betters, 41 A.D.3d 1040, 838 N.Y.S.2d 254 (3rd Dept. 2007) serious physical injury was found where the victim suffered a knife wound requiring nine stitches.

People v. Jerreld, 852 N.Y.S.2d 833 (N.Y.Co.Ct., 2008). In a somewhat puzzling decision, even by defense attorney standards, J. Dennis K. McDermott of the Madison County Court held that that it was not a “serious physical injury” where a two-year-old victim, who had been thrown by the defendant, suffered a fractured leg that required the two year old victim to be placed in a body cast for six to eight weeks.

Charges involving serious physical injury are generally classified as violent felonies many of which carry mandatory state prison sentences. These cases can be tough to prove (see our blog dated April 25, 2008 on self-defense) however, and it is important to get an aggressive and experienced attorney involved as early in the case as possible.

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If you are charged in New York State with any crime wherein “physical injury” is an element of the crime charged (for example, Assault in the Third Degree), you need a Criminal Defense Attorney well-versed in not only the statutory definition of “physical injury” but how the courts have interpreted the definition and applied that definition in other cases such as one of the attorneys at the Westchester Firm of Tilem & Campbell. Many times a good plea-bargain offer results from your attorney pointing out difficulties in the prosecutions case. For example, showing the prosecutor prior cases where similar allegations and injuries were found not to constitute a physical injury might result in the prosecutor offering the violation of disorderly conduct. If plea negotiations fail, an experienced criminal defense attorney usually will attack, among other things, the “physical injury” element of the crime at trial. But obviously, he or she must be well versed in the cases dealing with physical injury findings.

Physical injury: (PL § 10.00(9)). Physical Injury is defined as the impairment of one’s physical condition or substantial pain. For the exact definition, see NY Penal Law § 10.00(9). The definition of “physical injury” and whether one has in fact suffered a “physical injury” is of utmost importance where one is charged with Assault in the Third Degree (PL § 120.00); a Class “A” Misdemeanor. Virtually all Third Degree Assault charges hinge on whether the defendant intentionally, recklessly or with criminal negligence caused a physical injury. The state of mind element (intentional, recklessly or with criminal negligence) and the physical injury element are what we as defense attorneys look to attack.

A person is guilty of assault in the third degree when:

1. With intent to cause physical injury to another, he in fact causes a physical injury to another or to a third person; or

2. He recklessly causes physical injury to another person; or

3. With criminal negligence, he causes physical injury to another person with a deadly weapon or a dangerous instrument.

(For the exact wording of the Assault in the Third Degree Statute see PL § 120.00)

Recall, a physical injury can be established by impairment of one’s physical condition and/or by the suffering of substantial pain. However, because a serious criminal conviction can result from a physical injury, the Court of Appeals (the highest Court in New York) has been strict in requiring proof of an "objective level" of physical injury to hopefully ensure that one is not convicted of a crime where the injury was merely inconsequential. For example, in Matter of Philip A., 1980, 49 N.Y.2d 198, 424 N.Y.S.2d 418, 400 N.E.2d 358 (1980), the Court of Appeals held that two punches to the face causing red marks, crying, and an unspecified degree of pain was insufficient proof of a physical injury. Two years later, in People v. Jimenez, 55 N.Y.2d 895, 896, 449 N.Y.S.2d 22, 433 N.E.2d 1270 (1982) the Court of Appeal reaffirmed the need for a true “physical injury” holding that a one centimeter cut above the victim’s lip, without more, was insufficient proof of a physical injury.

Continue reading "NEW YORK PHYSICAL INJURY - ASSAULT" »

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New York Criminal cases often hinge on the legal definition of common terms. Experienced criminal attorneys know that often the legal definition of something is very different than its common definition. The term “possess” has significant legal implications in, among other areas, drug and weapons cases. Attorneys must be aware of the court rulings interpreting the term and how it applies to weapons and drugs. If you are charged with a crime that has possession as one of its elements, the lawyers at Westchester County based Tilem & Campbell would be happy to offer you a free consultation regarding your case.

Possess: (PL § 10.00(8)). To “possess” is to have physical possession or to otherwise exercise dominion or control over tangible property. The exact definition of “possess” for purposes of the Penal Law and the Criminal Procedure Law is found in PL § 10.00(8)

Actual physical possession is fairly easy to identify; did the person possess the tangible property? However, to exercise dominion or control over tangible property is a somewhat abstract concept. Dominion or control has been defined as “constructive possession”. In order to support an allegation that a defendant was in constructive possession of tangible property, the People (prosecutor) must show that the defendant exercised dominion or control over the property by a sufficient level of control over the area in which the contraband is found or over the person from whom the contraband is seized. People v. Manini, 79 N.Y.2d 561, 594 N.E.2d 563, 584 N.Y.S.2d 282 (N.Y.,1992)

For example, in People v. Torres, 68 N.Y.2d 677, 505 N.Y.S.2d 595, 496 N.E.2d 684 (1986), the New York Court of Appeals, held that the Evidence was sufficient to prove that the Angel Torres was in possession of a controlled substance found in his apartment, despite the fact that he was not in his apartment at time the controlled substance was found and even though others also used the apartment. In other words, Mr. Torres clearly did not physically possess the controlled substance at the time it was found by the police, however, the Court found that Mr. Torres was in constructive possession of the controlled substance because, among things, he was a named tenant on the lease; he had keys to the apartment; and when he arrived at a hotel in Puerto Rico he gave the searched New York apartment address as his home address.

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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.

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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.

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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 (1)

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.

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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.

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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)

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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 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 Jean Melino who was an assistant district attorney in the Westchester County District Attorney’s Office and in the Suffolk 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 to 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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