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New York’s “move over” law was expanded starting at the beginning of this year (January 1, 2012) making it applicable to not only emergency vehicles that are stopped on the side of the road but now to “hazard vehicles”. The law, which originally went into effect last January originally only covered “emergency vehicles” those vehicles which are displaying either a red light or a combination of red and white lights such as a police, fire or emergency medical vehicle. Now, as of this year, the law also applies to “hazard vehicles” those vehicles which display one or more amber lights such as tow trucks, road service vehicles and highway crews.

New York Vehicle and Traffic Law Sec 1144-a requires that drivers on a limited-access highway or parkway to exercise “due care” when approaching an emergency or hazard vehicle and defines due care as requiring at a minimum that the driver move from the lane adjacent to the shoulder where the emergency or hazard vehicle is stopped. In other words if the emergency vehicle is stopped on the right shoulder and you are driving in the right lane, you must move over to the center lane as you pass the emergency or hazard vehicle. Since moving over is not always possible on busy New York highways, the law does set the condition that you should move over only if it complies with other New York Vehicle & Traffic Laws such as moving from lane unsafely under V&TL 1128 and disobeying a traffic control device under V&TL 1110. In other words, if it is not safe to do so you or it is otherwise illegal to move over you should not. Rather, in that case you should slow down.

Violating the new “move over” law is a traffic infraction under New York Law punishable by a fine of $150, 2 points on you license and up to 15 days in jail although it should be emphasized that jail in not a likely possibility and that the points have been improperly reported in the media. The points count toward suspension of your driver’s license and/or the driver responsibility assessment.

Motorists should be warned that when section 1144-a originally went into effect last year the police were very aggressively enforcing the new law. We fully anticipate that the police will be aggressively enforcing all of the new provisions of section 1144-a. In addition motorists need to exercise extreme caution when they attempt to move over. The purpose of the law is safety and changing lanes create another risk. Vehicle and Traffic Law section 1144-a makes clear that you must observe all other Vehicle and Traffic Laws including but not limited to using your turn signal, changing lanes safely, complying with lane markings, signs and speed restrictions.

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The Wall Street Journal Reported last week, that criminal charges were being prepared against British Petroleum and/or individuals who worked for British Petroleum and who were supposedly responsible for the oil spill that occurred in the Gulf of Mexico last year after the Deep Water Horizon drilling platform caught fire. This news highlights another troubling trend in the national trend toward over criminalization; “there are no accidents.”

Traditionally, criminal liability required two elements; a criminal act and a criminal mind referred to in Latin as “MENS REA”. The criminal mind required for criminal liability traditionally and under New York law was either that you acted intentionally, knowingly, recklessly or with criminal negligence. Specifically absent from the list was acting negligently or carelessly. Under New York law one who merely acts negligently or carelessly could be held liable for financial damages but could not be found guilty of a crime. As we over criminalize our society the traditional rule is giving way to attempts to hold someone criminally liable for every tragedy.

Recently in New York, three individuals were indicted by a grand jury, tried and acquitted of Manslaughter and related charges after a tragic fire in the Deutsche Bank building in lower Manhattan tragically killed two firefighters. The sadness and the outcry were great as the City attempted to place blame for the tragedy. Ultimately, a site safety officer, a contractor and an an abatement foreman, all of whom worked at the site were indicted for Manslaughter under the theory that they recklessly caused the death of the two firefighters. All were ultimately found not guilty in separate verdicts.

Whatever the tragedy, our society has moved to the point where it is not enough to merely hold someone civilly responsible and force them to pay for the damage they caused. Rather someone must be indicted, tried and if convicted sent to prison. It does not really matter whether the tragedy is a crane collapse, elevator accident, collapse of a company, oil spill or fire. The issue of who is to be held criminally responsible seems to take a back seat to the outrage and the need to find anyone who can be sent to prison. In the Deutsche Bank case, the jurors who were interviewed after specifically rejected such scapegoating.

As we have discussed in our prior blog, the element of having a criminal mind has been substantially relaxed or eliminated in many newer statutes, particularly in statutes that punish “Environmental Crimes.” As a result, convictions are easier to obtain in many of these cases brought as a result of tragic accidents.

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As of 2008, 2 million youths are arrested each year. While the original intent of the juvenile justice systems created throughout the country was to prevent stigmatization and collateral consequences that could naturally flow from an arrest. As experienced criminal defense lawyers know the system is less than perfect in that regard. Examples abound of the collateral consequences that can and sometimes do flow to juveniles who are arrested.

For example, children can be suspended or expelled from school under the federal “Gun Free Schools Act (GFSA) for certain weapons offenses committed on school grounds. The GFSA requires that schools that receive federal funds expel a student for one year for certain weapons offenses. A student can be expelled even if found not guilty of the weapons offense. Many states have expanded this to require expulsion for weapons offenses committed off school grounds (New Jersey) or in the case of Missouri any student charged with a felony can be suspended or expelled even if they were found not guilty of the offense.

A common belief is that individuals arrested as youths have their records destroyed when they reach the age of 18. This is not necessarily the case. In New York, for example, there is absolutely no provision for expungement of criminal records and the statutes that require that records be sealed, never completely seal the records leaving the records accessible for a host of reasons. This can lead to more limited employment options for youths who have been arrested, even if those records were eventually sealed.

In addition, the misapplication of sex offender registration databases can have long lasting effects on youths who are charged as juveniles with sex offenses. In Michigan, for example, 8% of the sex offender registration list is made up of juveniles including children as young as 9 years old. In a well publicized and outrageous case in New Jersey a 14 year old girl was arrested and faced child pornography charges after she posted naked pictures of herself on myspace. The charged carries a possible sentence of up to 17 years and mandatory registration as a sex offender.

Sex offender registration laws, which arguably could have the most severe collateral consequences for youths, are a prime example of just how far off mission the juvenile justice system has drifted. Clearly, the aforementioned 14 year old needs help. But she is clearly not the intended target of either child pornography laws or sex offender registration laws which were originally passed to register sexual predators.

The issue of the over criminalization of our society and the resulting collateral consequences that flow to a large percentage of the population has a tremendous cost to our youth and to our economy at large as a large percentage of people are either unemployable or underemployed as a result of the consequences of an arrest. The issue and costs are clearly too significant to ignore.

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The issue of the over criminalization of our society has been the focus of an increasing amount of media coverage and even led to recent hearings in congress. As discussed in the past in this blog (September 27, 2011 blog), the number of federal criminal statutes has increased to over 4500 and the watering down of some basic protections has led to convictions of people without criminal intent. Now, a recent study reveals that the number of youths being arrested has steadily increased to a staggering 30% of all youths by the time they turn 23 years old. This number while staggering is not surprising in light of the trend toward over criminalization and the increased reliance on police to address problems.

The number itself bears repeating. Thirty percent of youths are arrested by age 23, nearly one third of all youths. This number reflects all youths, not any particular group and is therefore likely higher among boys than girls and among minorities than non-minorities. The explanation however, is a lot more elusive. Certainly, crime nationally is on a protracted decline but it seems the propensity to arrest, for even minor offenses is clearly on the upswing. There is clearly less of a willingness on the part of the police to allow a school or the parents to handle a minor infraction.

As a criminal defense lawyer, involved with the criminal justice system for more than 20 years, I have noticed, a dramatic increase in the willingness of the police to intervene in what used to be matters often left to the school or the parents. Recent examples that I have noticed include a young high school student who “keyed” another student’s car in the high school parking lot is arrested and charged with the felony of Criminal Mischief for damaging property in excess of $250. Another example involves youths who attend parties where underage drinking occurs are arrested rather than being brought to their parents. Often times the parents who hosted the party are arrested themselves, even if they didn’t know about the drinking.

The potential for these arrests as youths to have long lasting effects even into adulthood is a legitimate fear as youths with arrests and convictions can lose valuable civil rights, the ability to obtain professional licenses and the ability to get jobs. The study which led to the report concluded that risk factors such as “being poor, struggling in school and having a difficult home” life were all factors that increased the likelihood of a youth being arrested.

As we discuss in a future blog, the consequences of an arrest, even if it doesn’t result in a conviction can be devastating to a young person and his or her future plans. The societal issues that have created this problem need to be dealt with. However, more immediately, if you or a loved one has been arrested for an offense you should immediately obtain experienced legal representation who is in a position to explain the process and the potential consequences whether or not a conviction results.

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As discussed in our previous blog the Greenburgh Drug Court was so out of control that Court officials eventually had to transfer all of the cases out of the Court to protect the rights of those participating in its Drug Court. As it turns out, Drug Courts in general have become controversial and several studies that have been released this year raise several areas of concern for the people convicted of drug offenses who participate in these programs. Many of the concerns raised are related to the issues that derailed the Greenburgh Drug Court.

Generally, Drug Courts are a type of problem solving Court a new breed of specialized Court that attempts to solve a community problem such as drug abuse, domestic violence or guns. In the case of Drug Courts, participants, individuals arrested for drug related or drug motivated, non-violent crimes are asked to plead guilty in return for entering the Drug Court system where a “carrot and stick” approach will be used to get the participant to deal with their addiction. Participants who are successful are rewarded with such things as applause, certificates, praise and ultimately dismissal of their charges. Participants who are not successful are punished by being required to write essays, do community service, attend extra court sessions and in some cases lengthy jail sentences.

In a series of reports issued this year and discussed in a National Association of Criminal Defense Lawyers magazine article, the efficacy of the drug court model, as well as its expense and denigration of basic constitutional principles are called into question. In the Drug Court model used most often, drug court participants are often forced to plead guilty to crimes more severe than they might without Drug Court in the hopes that they will be able to get the charges dismissed after completing the Drug court program. In this model, as a cost of entering Drug Court, broad waivers are required, contracts and releases are signed and guilty pleas are entered giving the Court the “stick” to punish those who fail.

The Office of Court Administration, transferred all of the cases out of the Greenburgh Drug Court this week in an apparent response to complaints made by Tilem & Campbell partner, Peter H. Tilem. The problems began when a client of Tilem & Campbell, unhappy with her representation in the Town of Greenburgh Drug Court hired the firm to represent her. When Mr. Tilem, a 20 year veteran of the legal profession, and a member of the bar of New York and Connecticut as well as the United States Supreme Court and numerous federal courts initially appeared in Court he was told that he was not permitted to practice before the Greenburgh Drug court. From that moment the situation got worse.
Mr. Tilem observed that this Court was violating numerous constitutional rights of his client and potentially others and reported the conduct to the Deputy Chief Administrative Judge of New York State. After only a couple of hours after the report was made Judge Friedman one of the two judges in the Greenburgh Drug court agreed to comply with the suggestions of the supervising judge. However, when Mr, Tilem appeared next time before Judge Forster, Judge Forster steadfastly refused to comply with basic due process requirements as suggested by the supervising judge. Judge Forster continued to attempt to keep Mr. Tilem from representing his client and permitted the drug court “team” a group of non-judges to vote on matters that can only be decided by a judge such as the issues of bail or sentencing.
Judge Forster told Mr. Tilem and a reporter for the New York Law Journal who wrote a front page article about the matter that because the Court was funded through a federal grant and not through the Court system that they could have their own rules and that the supervising judges were not their supervisors. Judge Forster obviously learned differently when Judge Alan D. Scheinkman, the Administrative Judge for the Ninth Judicial District transferred all of the cases out of the Greenburgh Drug Court to the White Plains Drug Court and leaving Judges Forster and Friedman with no Drug Court cases.
Prior to the actions of Judge Scheinkman, Tilem & Campbell filed an Article 78 seeking to restrain Judge Forster and members of the Drug Court “Team” from continuing a list of illegal activities and from sentencing the firm’s client. On November 25, 2011, an acting Justice of the Westchester Supreme Court signed an order barring Judge Forster from sentencing the Tilem & Campbell client and from continuing other illegal practices that were going on in the Court.
Judge Forster had threatened to give the client one year in the Westchester County Jail for a shoplifting case, a Petit Larceny of less than $250 from a TJ MAXX in the Town of Greenburgh. It was only after Mr. Tilem pointed out that the Court could not conduct the sentencing because Mr. Tilem had not had the required 24 hours to review the pre-sentence report from the Department of Probation, that the sentencing was adjourned giving Tilem & Campbell enough time to file the Article 78 and get the restraining order.
Yesterday, a Judge in the Westchester County Court reversed Judge Forster on the issue of bail. Judge Forster had previously remanded the client, meaning that she was held without bail. Yesterday, after an extensive bail hearing County Court Judge John P. Colangelo agreed that the client should be released on bail.
“Other Judges ruled against Judge Forster every step of the way,” according to Mr. Tilem. “The Supreme Court obviously decided that there was enough evidence of impropriety to issue a stay, an extraordinary remedy. In addition, she was reversed on bail and had her calendar taken away, “according to Mr. Tilem.”

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As criminal defense lawyers most of the time we represent the rights of the accused but sometimes we are called upon to represents the right of a victim. In the typical case, the victim report a crime to the police, the police investigate, make an arrest and the case is referred to the District Attorney’s Office. The victim needs no lawyer because the prosecutor will prosecute the case and often assist the victim in getting compensation from the perpetrator or the Crime Victim’s Assistance Fund.

However, all too often, especially in New York City, criminal cases are not handled in the typical way leaving victim’s to fend for themselves. In a recent case handled by this office and as reported in the New York Post yesterday, an individual who was ripped off by a car dealership and whose signature was forged on loan documents for a car was repeatedly denied the right to make a police report by the New York City Police Department. With no police report, no investigation and no arrest its as if the crime did not occur and the victim must deal with the consequences, in this case a monthly car loan bill that he didn’t bargain for, by himself.

By getting an experience criminal defense lawyer involved we were able to file complaints, with the Bank that issued the loan, the New York State Attorney General’s Office, credit reporting agencies such as TRW, Experian and Equifax and the United States Federal Trade Commission. In addition, we are working on getting the loan rescinded. As a result of our work the Bank has already terminated its relationship with the car dealership which has more than 40 complaints against it to the New York Department of Consumer Affairs.

The practice of not taking police reports is unfortunate but also wide spread as has been reported on several occasions by the New York Post and other Newspapers. It appears to be a result of a combination of laziness, sometimes ignorance and is also a symptom of how the Police Department tracks crime statistics. Simply put, if there is no police report the crime didn’t happen so crime must be going down. But the practice endangers the public and causes inconvenience and expense for the victims.

Here is a dealership that has over 40 complaints against it and rather than investigating what is happening, the police allow this dealership to continue to rip people off. Sometimes, the consequences of not taking a report or investigating a crime can be even more severe. Its at those times that an experienced New York Criminal defense lawyer can help.

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An article in today’s Wall Street Journal entitled “As Federal Crime List Grows, Threshold of Guilt Declines” focuses public attention on two trends that has long been followed by Federal Criminal Defense lawyers and has raised concerns among civil rights advocates and attorneys. The first trend, involving the rapid and uncontrolled growth of federal crimes (as distinguished from state crimes like murder, rape, assault, etc) has seen the number of federal crimes rise from just 20 to about 4500. The other trend is the erosion of the proof necessary to prove many federal crimes and send someone to prison.

The uncontrolled growth of federal criminal statutes has resulted in many individuals who are clearly not criminals getting caught up in the criminal justice systems for acts that they were clearly not aware constituted crimes. In legal thought there are generally considered two types of crimes. Crimes that are called in Latin malum in se, meaning wrong in itself are crimes that are generally obvious or inherently wrong or evil such as murder, stealing, assault or rape. The other type of crimes are called malum prohibitum in Latin, meaning wrong as prohibited are those crimes which are wrong only because they are prohibited by a statute such as gun possession, drug possession, copy write infringement, tax evasion or illegal immigration.

Since most crimes that are malum in se crimes, the obvious ones, have already been illegal, the new crimes are the malum prohibitum crimes, the crimes that are not so obvious. To make matters worse, according to the Wall Street Journal article, federal criminal offenses are not limited to one section of federal law but are scattered among 42 of the 51 titles of the United States Code. That means there is no one place where you can look to see if your acts are illegal. So the combination of having non obvious criminal offenses scattered all around the law results in frequent accidental transgressions of sometimes serious laws.

Aggravated Harassment in the Second Degree defined under New York Penal Law 240.30, makes it a class “A” misdemeanor, punishable by up to one year in jail to basically cause a communication to occur with another person by mail or telephone or other electronic means in a manner likely to cause to alarm or annoyance if that communication is made with the intent to annoy, harass, alarm or threaten a person. When the New York State Legislature talks about communication what they are really talking about is speech. New York State is attempting to regulate what you say and that is problematic in light of our Constitution’s First Amendment protection of speech; even unpopular or disagreeable speech.

In a decision issued earlier this week and has huge implications for New York criminal defense lawyers, Judge Valerie Alexander ruled that Penal Law sections 240.30 (1) and (2) were unconstitutional in that they were vague and over broad. She ruled that this Aggravated Harassment statute is analogous to one found unconstitutional by New York’s highest Court in 1989 and that Federal decisions have agreed that the statute is unconstitutional.

Penal Law section 240.30 clearly attempts to punish particular speech. The issue of what speech may be regulated by law in light of the Constitutional protections associated with speech has been the subject of numerous United States Supreme Court decisions. While not an absolute right (for example in might be permissible top punish someone for yelling fire in a crowded theater), freedom of speech is a fundamental right worthy of substantial protection. The New York State legislature made no attempt to distinguish in the statute between protected speech and unprotected speech or define a line that may not be crossed. Rather New York attempted to punish all speech that was annoying or alarming. Clearly, that is unconstitutional. The judge indicated that a criminal prohibition against communicating in an alarming or annoying way is by its nature facially unconstitutional.

New York Traffic Ticket lawyers are monitoring New York’s recently enacted Texting While Driving Law which was made tougher this week after a new law signed by governor Cuomo went into effect. The new law makes Texting While Driving a primary enforcement statute. This means that a police officer may stop a vehicle because the driver is observed violating this statute. In the past, a police officer could only stop a vehicle for a reason other than texting while driving and then issue the summons for Texting While Driving if there was probable cause to believe that the operator also committed an offense under New York Vehicle & Traffic Law (VTL) 1225-d. .

While New York VTL 1225-d is usually referred to as New York’s Texting While Driving Statute it punishes a broad range of conduct that does not involve texting or even using your cell phone. For example the statute is entitled “Use of Portable Electronic Devices” and defines portable electronic devices as any: hand-held mobile telephone (cell phones), PDA (personal digital assistant), handheld device with mobile data access (such as a IPAD, IPOD, or Tablet or GPS), laptop computer, broadband personal communication device, pager, two-way messaging device, electronic game, or portable computing device. This list seems like it would encompass pretty much any electronic device you can conceive of including devices that are commonly used in cars such as I-Pods and navigation devices.

In addition, if you simply are holding the device while viewing it that is considered viewing and there is a presumption built into the statute if you hold the device while driving in a “conspicuous manner” you are presumed to be “using” the device. This all means that simply holding any electronic device in your hand while driving can cause you to receive a three point ticket punishable by a fine of up to $150 plus a surcharge of a minimum of $80 for a total of $230. Plus there of course exists the possibility of insurance surcharges or increases and if you accumulate 6 points, additional fees under the Driver Responsibility Assessment.

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