New York Criminal Defense Attorneys Blog

Drug charges: role of drug courts on the rise

2013-05-16T17:45:00Z

In New York and across the nation, this is National Drug Court Month. The theme this year is “Drug Courts: A Proven Budget Solution.”

Drug courts are an alternative way of dealing with people with addiction problems, outside of the traditional justice system. Though a judge presides over such a court, a multi-disciplinary team is typically involved.

]]> The elements of the program usually include not only intensive drug treatment, but also close supervision in community. This supervision often involves random drug tests. A judge monitors a participant’s progress, providing encouragement and accountability.

Court that use this model can be described as a proven solution because that’s what research has shown. In the more than 20 years they’ve been around at the state level, drug courts have been shown to cut down on drug use significantly — and on repeat offenses.

Indeed, drug courts have become so successful at the state level that the federal criminal justice system is moving toward using them as well. In March of this year, the New York Times ran a front-page article on the development of the drug court model in the federal system.

Federal judges have been partnering with prosecutors to get drug courts started at the federal level. The U.S. Justice Department has supported the effort by letting U.S. attorneys dismiss or reduce charges in some cases in return for participation in a drug treatment program.

Each jurisdiction runs its program a little differently. Eligibility requirements and other issues must be worked out. But clearly the trend toward encouraging the rehabilitation of drug offenders is on the rise. After a generation of a costly and counter-productive “War on Drugs,” drug courts offer a different way of dealing with people who face drug charges. This alternative way, emphasizing treatment and reintegration into the community, is gaining more and more acceptance.

Source: “Drug courts come to the federal system (and the New York Times’ front page)," Sentencing Law and Policy, Doug Berman, 3-3-13

Federal computer crime statute in urgent need of overhaul

2013-05-10T16:17:03Z

A generation ago, few people imagined the degree to which computers would come to be used for a remarkable array of interactions and services. When Congress passed the Computer Fraud and Abuse Act (CFAA) in 1986, the whole notion of unauthorized computer access was pretty new on the national scene.

But as our culture’s online world has evolved rapidly in recent years, CFAA’s overly broad definition of computer crime is increasingly putting ordinary Americans in New York and across the country at risk of unjustified prosecutions.

]]> One of the most notorious questionable prosecutions was against the well known Internet activist Aaron Swartz. He was the creator of the RSS feed, a key tool for sharing data online, and an important advocate for access to information on the Internet. But federal prosecutors brought serious criminal charges against him after he downloaded material from an academic database. Under pressure from this prosecution, Swartz committed suicide in January.

Swartz had been charged with unauthorized computer access under the CFAA. His death has put a spotlight on the need to revise the law to clarify what “unauthorized access” to a computer really means in 2013 — and what it should mean going forward.

For example, does it really make sense to interpret unauthorized access very broadly to include violating any of the many conditions of a terms-of-service agreement? Such an expansive interpretation of the law would cover a great deal of conduct that most people would not consider criminal.

As Judge Alex Kozinski, a federal appeals court judge, noted, a broad interpretation of the CFAA could potentially criminalize even such things as posting falsehoods about oneself on a ditching website whose TOS requires truthful statements.

Source: “Why Is Congress Trying to Make Our Internet Abuse Laws Worse, Not Better?” The Atlantic, Orin Kerr and Lawrence Lessig,” 4-22-13

Public lewdness: New York weighs penalties

2013-04-29T20:27:03Z

For more than 20 years, the reflexive (or knee-jerk) response to perceived threats from crime in America has been to increase penalties. New York State has been no exception. Ever since harsh Rockefeller drug laws of the 1960s and 70s, New York has long been looking to ratchet up sentencing severity for many different types of crime.

The latest example of this concerns the offense of "public lewdness." The state Senate passed a bill earlier this month that seeks to increase the penalties for that offense.

]]> The Senate bill would do this by creating new crimes of this type. Under current New York law, public lewdness is a Class B misdemeanor. The bill would create crimes for public lewdness in the first, second and third degree. It would also increase penalties for repeat offenders and those who actions are directed at children.

But what is public lewdness? New York law refers to it as intentionally exposing "private or intimate parts" in a lewd manner. Behavior of this sort is commonly called exhibitionism.

There has always been a significant distinction, however, between this type of behavior and offenses such as sexual assault.

The sponsor of the bill, Sen. Lee M. Zeldin, asserts that public lewdness is not merely a nuissance crime. Instead, it can supposedly pave the way for more serious sex offenses.

But as is often the case with legislative proposals, there was scant empirical evidence offered for this assertion. And so the basic premise of the bill - that public lewdness is treated too leniently - remains unproven.

Please visit our page on sex crime charges.

Source: "New York State Senate Passes Zeldin Bill to Punish Public Lewdness," Long Island Exchange," 4-16-13

Marijuana possession and federal immigration law: a Supreme Court case

2013-04-23T21:33:47Z

When is a crime so serious that it can lead to the deportation of the person who committed it, even if that person is permanent resident who has lived in the U.S. for years? Today the U.S. Supreme Court decided a case posing this question and ruled that that low-level marijuana possession is not a deportable offense.

The case arose in Georgia. But marijuana charges remain common in many states, including New York.

]]> The case was called Moncrieffe v. Holder. The defendant in the case was a Jamaican who had come to the U.S. at age 3 and grown up here. Though he was not a citizen, he had permanent resident status and was the father of two children.

In 2008, Georgia authorities arrested him for possessing marijuana that weighed only one-twentieth of an ounce. That's right: one-twentieth of an ounce. And they charged him with possession with intent to distribute marijuana, in the amount of 1.3 grams.

On a national level, that type of marijuana enforcement runs increasingly against the grain of public opinion. After all, attitudes toward marijuana are growing progressively more tolerant across the nation. Indeed, in two states it has been legalized for recreational use.

But marijuana remains a controlled substance under federal law. And federal appeals courts around the country did not agree on whether a first-time offender in a marijuana possession case has committed a crime that Congress considered to be an "aggravated felony" that can trigger deportation.

So the U.S. Supreme Court took the Moncrieffe case to clarify this. The Court held by a 7-2 vote that a legal immigrant cannot be deported for having such a small amount of pot. Marijuana may be a controlled substance under federal law, but it is not a felony that involves mandatory deportation.

Source: "Justices say marijuana possession is not a deportable offense," Thomson Reuters News & Insight, Lawrence Hurley, 4-23-13

Please visit our page on immigration crimes.

Orders of protection in New York: more than one type

2013-04-17T22:38:45Z

Protective orders are court orders that direct someone to avoid contact or communication with another person. Such orders are also sometimes called restraining orders. Though not exclusive to domestic abuse cases, they are commonly used in that setting.

Seeking such orders from the court involves a formal process. And pursuing that process takes time. That is why some states have passed laws in recent years requiring employers to allow employees to take a certain amount of unpaid time off from work that can be used to seek protective orders. New York is now considering becoming one of the states with such a law.

]]> The proposed law would allow employees to take three days of unpaid leave in a 12-month period to address domestic violence issues. The leave would not necessarily have to be used to work on getting an order of protection. It could also be used to get medical attention or to move to a different location.

Regardless of what the New York legislature decides on that proposal, there are a couple of important things to keep in mind about orders of protection. First of all, keep in mind that in New York not all orders of protection are criminal in nature. Some are issued as part of civil proceedings, through Family Court.

An order of protection issued by a criminal court is quite different. This type of protective order is generally issued as a condition of release from confinement in a criminal case.

In New York, there is also a third type of order of protection. This third type is issued by a civil court in a divorce proceeding.

Source: "New York weighs new domestic violence bill," Rochester Democrat and Chronicle, 4-1-13

Additional source: "Obtaining an Order of Protection," NYCourts.gov

Please visit our page on the defense of domestic violence charges.

Medical marijuana: New York considering legalization

2013-04-10T16:37:33Z

The national trend toward legalization of medical marijuana is clear. Eighteen states and the District of Columbia have now done so. New York hasn't done it yet, but that could change if a bill introduced in the state senate passes.

Supporters of the bill argue that therapeutic cannabis can be beneficial for patients with many different types of chronic health conditions. The bill's senate sponsor, Sen. Diane Savino, also points to countries such as Canada and Great Britain, where extensive research into the positive effects of medical marijuana have been done.

]]> The New York bill would allow a seriously ill patient to purchase medical marijuana with a doctor's authorization. The therapeutic pot would be available through dispensaries regulated by the state.

To be sure, there are always implementation challenges when a state allows marijuana to be used for medical purposes. Issues regarding growing and distributing medical marijuana take time to work out. But it can be done. New York's neighboring state of Connecticut, for example, is doing just that in order to implement the law passed last year.

Passage of the proposal in the New York legislature may be unlikely this year. Opponents of medical marijuana still make the "slippery slope' argument. They claim that legalizing pot - even if only for medical reasons - can start people on a path toward using harder drugs. And Gov. Andrew Cuomo does not support the bill.

But the overall trend toward allowing medical marijuana is undeniable. Indeed, two states have even legalized marijuana for recreational use.

Source: "State Senate to Consider Medical Marijuana Bill," KBW.com, John Borsa, 4-4-13

Please visit our page on drug charges.

When a Criminal Pardon Isn't Enough: Wrongful Conviction and Sex Crimes

2013-04-03T14:22:27Z

In 2009, three individuals of the "Norfolk Four" received governmental pardons, allowing them to leave prison after being held in custody for the rape and murder of a Virginia woman. According to their defense attorney, the men were coerced into admitting to the crimes. The evidence was not in the prosecution's favor:

The facts in the men's confessions did not match
None of the men, who were sailors, had criminal records
The DNA evidence implicated another man, who confessed that he committed the crime alone

The conditional pardons released the men from prison but did not exonerate them for the crimes. One man had already been released from prison and did not receive a pardon. Now, he is fighting for his future.

]]> No Freedom for Individuals Convicted Of Sex Offenses

While Eric Wilson is out of prison, he is not free. After seven years in prison, he still suffers the consequences of a crime he adamantly claims he did not commit. Among other consequences:

He faces the social stigma that attaches to individuals accused of sex crimes.
He must report his whereabouts and life changes to authorities.
His employment options are very limited.
He may have difficulty finding a place to live.
He cannot obtain a passport.
He cannot adopt the stepson he loves and cannot attend school events.

Unfortunately, Wilson feels like he is running into walls trying to get his rape and murder conviction vacated. A federal appeals court would not hear his habeas corpus petition because he was no longer in jail, even though a judge wrote, "Morally and legally, he is clearly entitled ... to a judicial forum." Does Wilson have to commit another sex crime before he can bring a habeas corpus petition?

The U.S. Supreme Court may not think so. His defense lawyer petitioned the Court for relief, and it has asked for a brief.

If you face sex crime allegations or believe you have been wrongfully convicted of a sex crime, speak with an experienced attorney as soon as possible. The consequences of a sex crime conviction are lifelong and, as Wilson's case shows, can affect all aspects of your life. Your future depends on a strong defense.

Source: The New York Times, "Out of Prison? For Some, That Might Mean Out of Luck," Adam Liptak, Apr. 1, 2013

Please visit our pages on sex crime charges.

GPS Tracking Debate Resurfacing In Federal Court

2013-03-26T18:11:59Z

The Obama Administration is, yet again, asking for approval to put GPS tracking devices on automobiles without a warrant. On Tuesday, the 3rd Circuit U.S. Court of Appeals in Philadelphia will hear a case that questions when warrantless GPS tracking is acceptable.

The GPS tracking saga is not new. In early 2012, the U.S. Supreme Court held that attaching a GPS device to a personal automobile constitutes a search under search and seizure laws. The Court also held, however, that it was not always necessary to obtain a warrant. It did not give examples of exceptions.

]]> In the case before the Circuit Court, US v. Katzin, the police planted a GPS device on a vehicle they suspected was involved in a string of burglaries. The police monitored the vehicle for two days and used the information to indict two brothers for the burglaries.

The government believes that the Supreme Court's 2012 decision applies only to installing a GPS device, not to tracking that device. Furthermore, it argues that law enforcement officials only need a reasonable suspicion to use GPS devices. "The balancing of law enforcement interests (gathering information to establish probable cause) with the minimally intrusive nature of GPS installation and monitoring makes clear that a showing of reasonable suspicion suffices to permit use of a 'slap-on' device like that used in this case," the government argues.

Yet, isn't the use of a GPS without a search warrant an infringement on our Constitutional rights? That is what the defense will argue on Tuesday.

It is also what certain members of Congress (Democrat Senator Ron Wyden and Republican Senators Mike Kirk and Jason Chaffetz) believe. They have introduced a bill, the GPS Act, that would require law enforcement to obtain a warrant before accessing tracking data either from a law enforcement-planted GPS device or a person's own GPS or cell phone. The bill would require probable cause, not just reasonable suspicion, to access the data.

We'll keep an eye on both the case and the bill.

Source: Albany Tribune, "White House To Argue For GPS Tracking Without A Warrant," RT, Mar. 22, 2013

NYPD's Stop-And-Frisk Practices Under Court Scrutiny

2013-03-19T18:08:16Z

Today, a U.S. District Court began hearings on the New York Police Department's controversial stop-and-frisk policy. The class action lawsuit claims the policy infringes on New Yorkers' constitutional rights. Furthermore, it raises questions regarding racial profiling - the majority of people stopped and frisked are Hispanic and black men.

The district court judge cannot ban the search tactic, which is legal, but can order reforms, such as a court-appointed monitor. Her decision could reach far beyond the NYPD. Other police forces in New York and around the country use similar tactics that could be put into question should the result favor the plaintiffs.

]]> Above And Beyond Typical Search And Seizure

According to the ACLU, "New Yorkers have been subjected to police stops and street interrogations more than 4 million times since 2002." Even though police officers should have a reasonable suspicion that a person has committed or will commit a crime before they stop and frisk that person, more than 80 percent of individuals stopped are innocent.

In other words, police officers could be abusing their power to stop and perform random pat downs on those they "believe" to be suspicious, instead performing the stops on account of race or another illegal factor.

As one young man who has been subjected to multiple stop-and-frisks noted, the frisks can be terrifying. "[They] threw me up against the wall, took everything out of my pockets, threw it on the floor, dumped my bag on the floor, my books and everything. I had the guns to the back of my head," he told NPR. Should law-abiding citizens be subjected to this fear and humiliation simply because they look suspicious?

Learn more about search and seizure law by visiting our page on New York search and seizure.

Source: ABC News, "Dozens Testify Against NYPD's Stop-and-Frisk Policy," Cristina Costantini, Mar. 18, 2013

The Public Creates Additional Restrictions On Convicted Sex Offenders

2013-03-11T20:36:16Z

A few weeks ago, we discussed the challenges that individuals face after being convicted of a sex crime. Two challenges are the sex offender registry and the social stigma. A recent New York Times article shows how those two challenges can work together to make life difficult for individuals convicted of sex crimes.

In Los Angeles, for example, one neighborhood is building a small, 1,000 square foot park for the sole purpose of forcing 30 registered and paroled sex offenders out of an apartment building. Under California law, sex offenders on parole cannot live within 2,000 feet of a public park. Parts of Miami have done the same thing, building small parks to the point that registered sex offenders have nowhere to go.

]]> Add this challenge to the fact that registered sex offenders already have trouble finding landlords willing to rent to them, and it is no wonder that many of these men and women end up on the streets after getting out of prison.

"It's counterproductive to public safety, because when you have nothing to lose, you are much more likely to commit a crime than when you are rebuilding your life," California Sex Offender Management Board member Janet Neeley remarked. Her comments draw from research that sex offenders who are homeless - often because they have trouble finding an acceptable place to live - reoffend more often than those with a stable living situation. Even when there is a stable living situation, sex offenders are often forced to live together in working-class neighborhoods that do not have the restrictions other neighborhoods do. This type of segregation can also affect rehabilitation.

In New York, the law does not restrict where a registered sex offender can live unless he or she is under parole or on probation. During that time, he or she cannot live within 1,000 feet of a school or childcare facility. There are also some local laws that limit where a sex offender can live, which vary from town to town.

If you have been charged with a sex offense, you may face sex offender registration and the social stigma that comes with it. It is vital to fight for your freedom NOW with the help of an experienced sex crimes defense lawyer.

Source: The New York Times, "Neighborhoods Seek to Banish Sex Offenders by Building Parks," Ian Lovett, Mar. 9, 2013

New York doctor pleads guilty to prescription drug crimes

2013-03-07T17:16:34Z

A New York physician pleaded guilty to multiple felony charges after selling Oxycodone and other pain pills to drug dealers. Over the last two years, the doctor wrote multiple pain killer prescriptions for fake patients and then sold the painkillers at $300 each to drug dealers in Manhattan and Nyack.

Charges levied against the doctor included felony drug sale, felony drug possession, conspiracy charges and tax fraud. According to authorities, the doctor underreported his income by nearly $500,000. He also made millions of dollars through the prescription drug crimes.

The doctor now faces large fines, and one to three years in prison for his felony crimes.

]]> New York is cracking down on prescription drug crimes

It is illegal to possess, sell, purchase or distribute prescription drugs such as OxyContin, Hydrocodone, Vicodin and Percocet. While doctors can legally write prescriptions for these drugs, the prescriptions must be for legitimate patients who need the drugs for medically sound reasons. Writing false prescriptions and illegally selling prescription drugs can lead to the same charges as those faced by people who have possessed and sold heroin, cocaine and other illegal drugs.

Federal and state investigators do not take prescription drug crimes lightly. In February, New York launched a new database that allows law enforcement to track patterns of prescription drug crimes throughout the state. This will help them uncover patterns regarding where drugs are being sold, what drugs are being sold and what tactics individuals are using to buy and sell the drugs.

Now, more than ever, it is important to have an experienced prescription drug crime defense attorney on your side if you are under investigation for prescription drug crimes.

Source: Daily News, "New York doctor comes clean about selling painkillers to drug dealers," Associated Press, Mar. 1, 2013

Are sex offender penalties too harsh?

2013-02-27T20:21:07Z

A recent discussion on the New York Times' "Room for Debate" page discussed whether our nation's (and state's) sex offender laws are too harsh or, in some cases, too lenient.

Those arguing for stricter laws propose additional penalties -- such as requiring sex offenders to have unique license plates -- and a stronger focus on prosecuting women offenders. They cite recidivism rates and the need to ensure that our children are safe.

Others argue that states are going in the wrong direction. They continue to add restrictions -- such as changes to how sex offender registries are used -- without looking at the crux of the problem. As one scholar argues, there is no difference in recidivism rates today than before the sex offender registries were created. "Ideally," one professor of psychology, Alejandro Leguizamo argues, "adult sexual offenders, whether they are placed on probation or incarcerated, should have quality treatment available to them."

]]> That is one of many things that is lacking. It seems that states have not really addressed the crux of the problem. Few states offer strong treatment programs and fewer still do an adequate job at differentiating between levels of offenders. For example, the majority of states require sex offender registration for a first offense, even if that offense does not involve coercion or violence.

In New York, there are three levels of sex offenders: Level 1 (low risk), level 2 (moderate risk) and level 3 (high risk). Everyone convicted of a sex offense must register, and while only level 2 and level 3 sex offender information is easily accessible by the public, anyone can call the Sex Offender Registry office to obtain information about anyone on the registry.

For those on the sex offender registry that never intended to offend or have been rehabilitated into the community and will not reoffend, the burden is significant. They must pay attention to where they live, face multiple job rejections and live with severe scrutiny from the public. It is not exactly the kind of punishment that leads to a productive life.

The philosophies are interesting to read and debate, but the sex offender registry is not going away anytime soon. Thus, if you are charged with a sex crime, it is essential to fight the charges with the help of an experienced sex crimes defense lawyer.

Source: New York Times, Room for Debate, "Too Many Restrictions on Sex Offenders or Too Few?" Feb. 20, 2013

Online sale of steroids could lead to criminal drug charges

2013-02-20T15:20:49Z

In 2007, an Albany District County Attorney began an investigation into a drug company that sold steroids online. During the course of the investigation, 17 individuals pleaded guilty to drug charges and conspiracy charges. Now, the drug company has pleaded guilty to fifth degree criminal sale of a controlled substance. It will pay $100,000 in fines.

While the company is based in Florida, it sold steroids to individuals in New York and across the country. In New York, it is illegal for a pharmacy to dispense drugs if they do not have a valid prescription. A person only has a valid prescription if he or she received the drugs from a doctor who examined the patient in person.

]]> Even if you are selling a legal drug in a way that is legal in your state, you can face criminal charges in another state if you do not follow its laws. In other words, if you are one of the many drug companies dealing over the internet, you must do due diligence to ensure that you are legally able to sell those drugs in another state.

Criminal sale of a controlled substance in New York

Criminal sale of a controlled substance in the fifth degree is the lowest degree crime for knowingly and unlawfully selling a controlled substance. It encompasses all types of controlled substances, including prescription drugs, and is a class D felony. Class D felonies can land a person in prison for up to seven years and lead to large fines.

Compare this to criminal sale of a controlled substance in the first degree, which is the sale of one or more preparations, compounds or mixtures containing a narcotic drug and weighing two ounces or more, or the sale of a certain amount of methadone. This is a class A-1 felony and can lead to life imprisonment.

If you face charges for criminal sale of a controlled substance in New York, whether you are selling illegal drugs in New York or prescription drugs from another state, you need experienced defense on your side. Your future depends on it.

Learn more by visiting our web pages on New York drug crimes.

Source: Bradenton Herald, "Fla. Pharmacy Pleads to Drug Charges in NY," The Associated Press, Feb. 8, 2013

New York bill would change criminal definition of rape

2013-02-12T20:26:43Z

A bill before the New York Legislature would define forced oral and anal sex as rape. Currently, New York law classifies both acts as criminal sex acts. The term "rape" is reserved for forced sexual intercourse with another person or sexual intercourse with someone too young or unable to consent to intercourse.

The bill, which has been dubbed "rape is rape," was introduced by Assemblywoman Aravella Simotas (D-Queens) and is backed by Lydia Cuomo, a woman who was sexually assaulted by a New York cop in 2011.

Some New York prosecutors, however, are not in favor of the bill. They claim it could make it more difficult to convict defendants of rape. One law enforcement agent said, "At the end of the day, the last thing you want is legislation that would make it more difficult to get these convictions."

]]> Differences between rape and criminal sex act charges

What does it matter? Both acts fall under "sexual misconduct," and carry the same penalties. The difference lies in what a prosecutor must prove. For example, district attorneys must only prove that a person had contact with the anus or mouth to convict someone of a criminal sex act. They do not need to prove penetration of those orifices. To prove rape, they must prove that penetration occurred.

Furthermore, prosecutors can currently charge someone with rape and sexual misconduct and obtain consecutive sentences. If the crimes were both classified as "rape," there would only be once sentence.

We will wait to see if the legislature rewrites and/or approves the bill. In the meantime, if you have been charged with either rape or a criminal sex act, you face significant legal penalties, a criminal record and sex offender registration. An experienced sex assault defense attorney can help you fight your charges and protect your future.

Learn more by visiting our pages on sex crimes.

Source: Daily News, "Lawmakers show support for 'rape is rape' bill that strengthens penalty for forced anal and oral sex," Kenneth Lovett, Feb. 12, 2013

Chief Judge: New York bail process in need of overhaul

2013-02-05T22:09:39Z

Today, New York Chief Judge Jonathan Lippman called for revision of the state's bail process. He believes the current bail system is "unfair" and "not credible" because it keeps those accused of minor crimes in jail while allowing some defendants who pose a danger to public safety back on the streets.

Unlike most other states, New York does not give judges the option to consider public safety in bail decisions, only the defendant's flight risk. "This makes no sense and certainly does not serve the best interests of our communities and our citizens," he said.

He believes that defendants facing minor criminal charges are often seen as a greater flight risk in large part because of the bail bond business. Bail bond companies help ensure defendants' return to court in exchange for a percentage fee of the bail. They generally refuse to work with clients with low bail amounts because that means a low fee.

]]> In fact, Chief Judge Lippman went so far as to say, "bail bondsmen, not judges and not prosecutors, ultimately make the most critical decisions affecting the liberty of those accused of crimes in our criminal justice system."

He would like to see public safety put into the bail equation, the creation of nonprofit bail bond organizations, as well as an expansion of New York's supervised release programs. Those programs monitor defendants while giving them services they need to overcome drug abuse, thus reducing recidivism rates as well as prison terms.

For now, whether you face minor or more significant crime charges, an experienced criminal defense lawyer can help you understand bail and fight for your freedom.

Source: The New York Times, "Chief Judge Seeks to Overhaul New York's Bail Process," Russ Buettner, Feb. 5, 2013