Criminal Law

Can a criminal record in New York be expunged? (NY)

New York criminal law dictates a criminal record in New York cannot be expunged. However, obtaining a certificate of relief from disabilities may be possible, which can be useful when seeking employment. It is important to note pleas to violations should be sealed unless they fall into a narrow category of violations in New York criminal law for which sealing is not an option.
(Courtesy of Association of the Bar of the City of New York)

Do I get a criminal record when convicted for a violation, like disorderly conduct? (NY)

New York criminal law does not view conviction of a violation as a crime therefore a criminal record is not received.
(Courtesy of Association of the Bar of the City of New York)

If asked on an employer questionnaire if I have ever been convicted of a crime and I once took a plea to a violation, do I have to answer yes? (NY)

Criminal law states a violation plea is equivalent to conviction of a violation. A violation is not considered a crime in New York therefore the question refers to convictions for misdemeanors or felonies, not violations.
(Courtesy of Association of the Bar of the City of New York)

I live in New York. If I am arrested, what should I do? (NY)

It is extremely important for a person under arrest not to discuss anything with arresting authorities without a lawyer present. It is also strongly advised not to sign anything, other than a property safekeeping receipt. Providing identification, and responding to mundane questions such as name, address, and phone number are mandatory by law in New York. New York criminal law also allows the arresting authority the opportunity to try a variety of means to obtain information prior to contact with a lawyer. These range from gaining confidence and be supportive, suggesting cooperation will lead to release, or having a lawyer present be unnecessary or unhelpful, all intended to garner information they can use. The presence of a New York attorney who understands criminal law is crucial before accepting any offer of negotiation between the arrestee and New York authorities. It is important to remember the positive affect a polite and respectful attitude will radiate to others and may grant the privileges not otherwise available, such as a phone call, which is not a right in New York and elsewhere, and create a more successful defense prior to criminal court proceedings.
(Courtesy of Association of the Bar of the City of New York)

A personal acquaintance of mine has been arrested by local authorities in New York. What do I do to try to find out some information about this problem? (NY)

If the precinct of arrest in New York is unknown, Central Booking should be consulted for information including the arrest number and charges. It is possible to attain more information at the precinct or by telephoning the precinct. However, it cannot be stressed more strongly that the ratio of information likely to be received is directly related to the attitude the caller presents to the responding officer. To determine when the person will be brought before a judge of the local district criminal court in New York to be arraigned, one should call the Arraignment clerk's office. The arrest number would be needed to release this information and as stated earlier, it is advisable to maintain a pleasant demeanor when seeking this information.
(Courtesy of Association of the Bar of the City of New York)

My friend from New York has just been arrested by federal agents, how do I find out information about the arrest and I¡¦d like to find out some information so I can assist. (NY)

The wisest course of action may be to contact a qualified attorney specializing in criminal law from the New York area. Otherwise, the F.B.I., D.E.A. , A.T.F., Secret Service and other federal criminal investigation agencies maintain a general number of their offices throughout the country, including New York. Contacting the "Duty Agent" may be able to give some limited information to a caller. Traveling to the agency's offices is not advisable post 9/11/01. If efforts to reach the agency are not productive, contact the Magistrate Clerk's office of the United States District Court for the district where the arrest took place. New York Eastern District's main criminal courthouse is located in Brooklyn Heights and the Southern District's main criminal courthouse is located in lower Manhattan's civic center. Both districts maintain secondary criminal courthouses in Central Islip and White plains respectfully. Local federal arrests outside New York in New Jersey are handled generally in the Newark criminal courthouse). The clerk's office will provide publicly accessible information and times for arraignments (known as presentments and detention hearings).
(Courtesy of Association of the Bar of the City of New York)

I was arrested ten years ago when I was nineteen for possession of a small amount of an illegal drug. I received an adjournment in contemplation of dismissal (ACD) under which my case was adjourned for six months and the file sealed. If I am in the employers' premises applying for a job and filling out a written application which asks whether I have ever been arrested or convicted of a crime what answer should I give? (NY)

Any arrest which is not pending or did not result in a conviction is not considered an arrest according to New York criminal laws. N.Y. Executive Law Section 296, subdivision 16, prohibits such a question with limited exceptions, for example on applications to become a policeman. A file that has been sealed also allows the applicant to answer no. New York Criminal Procedure Law Section 160.50 which requires the sealing states that when a criminal action terminates in a person's favor all records shall be sealed "and not made available to any person." An ACD is a form of dismissal of charges and is not a conviction.
(Courtesy of Association of the Bar of the City of New York)

I was in a restaurant in New York having dinner when a fight occurred between two people I didn¡¦t know. One of them was seriously injured. I witnessed the entire fight. The police arrive and began questioning possible witnesses. I told the police I was a witness and they ordered me not to leave the restaurant. I had personal reasons that made it important for me to leave. I refused to remain. What are my rights?

New York criminal law states the police may not detain a person unless there is reasonable suspicion to believe the person was implicated in the assault. Furthermore in New York, a person witnessing a crime by law is not required to volunteer information about what they may have seen. It is possible for a subpoena to be issued and a person compelled to divulge evidence but criminal law grants a person the right to leave the scene of the crime.
(Courtesy of Association of the Bar of the City of New York)

The police seized my car, can I get it back? (NY)

In New York, the police seize motor vehicles for a variety of reasons, typically ones which were driven by a person driving while intoxicated. If the vehicle title is in another person's name other than the arrested person, they can frequently get the car back as an innocent owner. If the owner is the defendant, it is more complicated. Assuming that the District Attorney does not want to keep the car as evidence, and it is a first DWI offense, the New York Police Department Legal Bureau will require that the defendant meet with an alcohol treatment professional to determine if there is a substance abuse problem. If there is, the vehicle will only be released to the defendant successful completion of a treatment program. If the conclusion is that the defendant does not have a drinking problem then the New York Police Department Legal Bureau will release the car right away. The New York Police Department charges $5.00 a day for storage with a minimum of $100.00 and a maximum fee of $500.00.
(Courtesy of Association of the Bar of the City of New York)

Is there any particular criteria to consider in hiring a lawyer in New York for a DWI? (NY)

There are several criteria to desire in an attorney and foremost is experience in New York DWI laws. Most attorneys who do not handle DWI's on a regular basis are not aware of all the developments in the law in New York, or the technical nature of the charges. An experienced DWI attorney has experience and familiarity with the testing procedures, including coordination tests and chemical tests. For example, the Intoxilyzer machine (New York no longer uses Breathalyzers) is a sophisticated machine which your lawyer needs to be familiar with as there are numerous physical conditions which can affect the results of the breath test, such as diabetes. A competent New York DWI lawyer would be aware of such conditions.
(Courtesy of Association of the Bar of the City of New York)

Is DWI a crime in New York? (NY) New York law holds three types of DWIs. The first is the Traffic infraction of Driving while Ability Impaired. This is analogous to a speeding ticket in terms of penalty and if convicted of this you will not have a criminal record. The second is a misdemeanor DWI. Those convicted of the Misdemeanor in New York are subject to a fine of up to $1,000 and up to one year imprisonment. The specific circumstances of each particular case will determine whether or not the District Attorney will demand jail time. Finally, there is a Felony DWI. The District Attorney can seek to "bump up" a new misdemeanor DWI to a felony for those arrested for a Misdemeanor DWI who have been convicted of a Misdemeanor DWI in the past 10 years. The maximum prison sentence for a Felony conviction is 4 years in prison. It is highly recommended to acquire the services of a qualified New York DWI lawyer in the latter two cases to possibly lessen or alleviate the charges.
(Courtesy of Association of the Bar of the City of New York)

If I'm arrested in New York by a police officer for something I didn't do, can I sue for damages? (NY)

In New York, cases involving false arrests can result in damages awarded to the victim. The key issue is not guilt, but whether the police officer had what is known as "probable cause" to make an arrest and pursue prosecution. If a DA takes a case to trial and a not guilty verdict is achieved, the probability for a lawsuit depends on whether during the trial it was established that the police had "probable cause" for an arrest and prosecution. A jury that failed to find guilt beyond a reasonable doubt is not indicative of a lack of probable cause.

The criminal case must be won in order for a civil lawsuit against a false arrest to have any possibility of success. A guilty plea for any reason, perhaps part of a plea bargain or even in return for probation or time served, will defeat a claim for false arrest. An "Adjournment in Contemplation of Dismissal" (ACD), under which the charges are dismissed and the record is sealed is another alternative that may be pursued and this will also restrict a civil lawsuit of false arrest in New York. An ACD prevents suing for malicious prosecution. Therefore it is suggested not to pursue an ACD unless terminating the criminal case is a greater priority than seeking restitution over a false arrest with a civil lawsuit against New York.

Very weak charges are frequently dismissed outright, either at the first court appearance after the arrest or shortly thereafter. An outright dismissal presents the best opportunity for a civil lawsuit against the New York, because it means that the DA or judge knew the case was very weak. On some occasions a DA declines to prosecute despite an arrest. This creates an even greater chance for a lawsuit in false arrest cases.
Trials for minor criminal charges may be conducted by a judge rather than a jury. A competent New York attorney should persuade a judge who delivers a not guilty verdict in a minor case to state the case was very weak and an arrest was not warranted. In a false arrest, a not guilty verdict may not be enough to win a civil lawsuit against New York.

In New York City, a Notice of Claim should be served on the City Comptroller within 90 days of the arrest to protect the right to sue for false arrest. This may be done at the Municipal Building in Manhattan, 1 Centre Street (corner of Centre & Chambers Streets), 12th floor, by filling out a form. This form must be notarized and instructions to that effect will be given when the form is received, if requested. It is important to acquire a copy of the Notice stamped by the Comptroller as proof that it was served within 90 days of the arrest. Once the Notice of Claim has been served, a term of one year and 90 days from the date of the arrest is granted to file a lawsuit. The criminal case should be completed by such time.
(Courtesy of Association of the Bar of the City of New York)

What should I do if stopped for driving while intoxicated (DWI)? Or, driving under the influence (DUI)?

Be polite and courteous. If you are stopped at a checkpoint the police may ask general questions to determine if you have been drinking. You may also be stopped for questioning if you are operating your car suspiciously, for example, driving at night with light off, broken headlight or taillight. Depending on your responses or explanations you may be asked to submit to road side coordination tests or to submit to a breath test. An admission that you have consumed an alcoholic beverage will almost certainly result in these tests. If you were involved in an accident, the police have the right to ask you to submit to a breath test. (Courtesy of Association of the Bar of the City of New York)

Do I have to take the tests?

No, but if you refuse there are serious consequences.
(Courtesy of Association of the Bar of the City of New York)

What if I refuse to take coordination tests? (New York State)

There are no penalties for such a refusal, but the fact that you refused can be used as evidence in any criminal case against you.
(Courtesy of Association of the Bar of the City of New York)

What if I refuse a breath test? (New York State)

If you are over 21 and a New York motorist, and the refusal occurs after you are advised of the consequences the Department of Motor Vehicles (DMV) will be notified and your license will be revoked pending a DMV hearing. At the hearing if it is established that (1) the police officer had reasonable grounds to arrest you for driving while intoxicated or impaired ; (2) you were lawfully arrested; (3) you were given proper warning that a refusal would result in revocation of your license whether or not found guilty of the charge; (4) you refused and this was the first time you refused (there are no prior incidents), then your license will be revoked for six months from the date of the DMV hearing (not the date of you arrest).

If you are not a New York driver your out-of-state driving privilege will be revoked; that means you can still drive in your home state but cannot drive in New York.
This revocation is in addition to any penalty (suspension or revocation) which may be assessed as part of the outcome of the criminal case.
(Courtesy of Association of the Bar of the City of New York)

What are the penalties if I am convicted? (New York State)

First offenders convicted of the traffic infraction (ability impaired by alcohol i.e. test results above .05 but no higher than .10) face: a fine of from $300 to $500 and/or up to 15 days imprisonment, and a 90 day suspension of license or out of state driving privileges; repeat offenders for the first repeat offense (of ability impaired by alcohol) within 5 years face higher fines of $500 to $750 and/or 30 days imprisonment; a third offense (of ability impaired by alcohol) within ten years elevates the charge to a misdemeanor with a fine of from $750 to $1500 and/or 180 days imprisonment.

First misdemeanor offenders (test results of .10 or higher) face a fine of from $500 to $1000 and/or up to a year imprisonment. Repeat misdemeanor offenders with the first repeat offense occurring within ten years face felony charges.

In addition if there was an accident which resulted in personal injury or death to another you may be convicted of vehicular assault or vehicular manslaughter which are felonies.

Under age 21 drivers face greater penalties: 6 months minimum suspension for impairment (where the test reading is between .02 and .07). The law provides for a separate DMV hearing in certain cases, generally where the amounts of alcohol are below the .05 level but are still prohibited because of the age of the driver. The DMV procedures are being streamlined to provide for faster suspensions. If an underage 21 driver has a reading above .10 and is convicted, the driver is subject to a one year license suspension.

In most cases, the court will also direct you to enroll in and complete the State's Drinking Driver Program (DDP) as part of the sentence. This is an alcohol awareness program which you must complete successfully if you are to regain your license if it has been revoked. In some cases, a motorist may be referred for further treatment, by a private provider (at significant cost) at the end of the State sponsored DDP program, so it is important to Apass@ the program.
(Courtesy of Association of the Bar of the City of New York)

How will I be able to get to and from work if my license is suspended or revoked, either pending prosecution or after sentence? (New York State)

The law recognizes hardship exceptions in situations where your license is suspended pending prosecution. But, the burden is on you to prove your inability to get to and from work, school or for medical treatment by other means will result in extreme hardship. Also, in the case of prompt suspension pending prosecution, after thirty days you are eligible for a pre-conviction Aconditional license@ if the criminal case is still pending.

After you are sentenced you are also eligible to apply for a "conditional license." Such a license reduces the harshness of a post sentence suspension or revocation because it allows you to drive to and from your place of employment and to choose three consecutive hours of leisure time driving on the same day each week.
(Courtesy of Association of the Bar of the City of New York)

Can I lose my car or vehicle? (New York State)

Yes. In New York City and in some of the suburban counties, the police may start a separate civil action to forfeit your car. In New York City, the NYC Police Department's Property Clerk will consider returning your car to you if your test reading is below .15, this is your first offense and there has been no accident.

You will probably have to undergo a special screening by a State certified evaluator to determine whether you must undergo treatment for alcohol abuse, and if such treatment is required, complete the program before your car is returned to you.
If you do not own your car and it is leased, your leasing company may be able to recover your car provided the leasing company agrees not to lease the car back to you.
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