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Finally, New York State is Nearing Passage of New Laws To Seal Criminal Conviction Records

March 31, 2012 By

It’s a common story:  a decent, hardworking young man has a momentary lapse of good judgment and is caught and charged with driving while intoxicated.  The young man goes on to serve the sentence imposed on him.  Often the young man then finishes college, obtains a degree and seeks employment in a field for which he is academically and intellectually qualified.  His potential employer does a quick background check and discovers the young man’s criminal conviction for driving while intoxicated.  Do you think the employer will hire the young man with a criminal record, even if the conviction was for a misdemeanor committed many years before?  Would you hire him if he applied at your office?

What if the criminal conviction was many years ago, and since then the individual has led an exemplary life?  Notwithstanding the conviction, he has managed to make something of his life, and yet that conviction follows him like a shadow, haunting him and making it difficult for him to get a job.

This situation is all too common, and the penalty for one momentary lapse of good judgment is too severe.  Fortunately, there is growing support to improve this situation, which is finally being perceived as a real problem, by the New York State Legislature.  There are two bills pending in the State Legislature, and support is growing, for a new law to allow the sealing of criminal conviction records.  If enacted into law, these proposals would allow otherwise law-abiding citizens, who have certain criminal convictions in their past, to seal those criminal records.

The purpose of these two pending bills is the same: both bills aim to improve the chances for employment by making past criminal records unavailable to private persons or private employers.  It is the view of the sponsors of the bills that past criminal convictions should not be so readily accessible or available to employers who might then be inclined to deny employment to a person on the basis of these past criminal convictions.

The sponsors of the bills lament that despite reformation of the convict and despite the fact that he has not committed any further criminal acts, records of past convictions still hamper career opportunities for an individual who has duly paid his debt to society and has become a productive and law-abiding citizen.  These bills, we hope, will remedy that problem.

At the root of these proposed bills is the question: how long should the punishment last?  Shouldn’t the sting and humiliation of these convictions be lifted for those individuals who have already been duly punished for the crime, have paid their debt to society, and who have subsequently led a life of honor and decency?

Under appropriate circumstances, criminal convictions should be sealed.  This law in New York is long overdue.  We hope that the Legislature acts quickly and enacts a new law to permit the sealing of criminal convictions.

Filed Under: Criminal

Martin & Colin’s Request for Leniency in DWI Case

November 20, 2011 By

 

Printed below is an application filed by the lawyers at Martin & Colin, P.C. seeking a reduced plea offer from the prosecutor.  Our application is also available in easy to read, Google Docs format here.  Only the names have been changed.

 

MARTIN & COLIN, P.C.

April 30, 2007

 

Honorable Jane DiLorenzo
District Attorney
Westchester County
Richard J. Daronco Westchester County Courthouse
111 Martin Luther King Jr. Blvd.
White Plains NY 10601

 

Re:  People v. Alan Bender
Justice Court, Rye Town

 

Hon. Judge DiLorenzo:

I am the attorney representing the defendant Alan Bender in a criminal prosecution currently pending before the Hon. John Colangelo in the Justice Court, Town of Rye.  The matter is next scheduled for all purposes on Wednesday, May 9, 2007.

The defendant is charged with a crime of driving while intoxicated for having a .16 blood alcohol content as measured by an intoxilizer instrument administered by the Rye Brook Police Department.  The purpose of this letter is to demonstrate to you that the best interests of the people of Westchester County, the community which you so honorably protect and defend as its top law enforcement official, would be best served by offering this individual defendant a reduced plea offer to the lesser offense of Driving While Ability Impaired in full satisfaction of the current misdemeanor charge of Driving While Intoxicated.

The truest administration of justice in its finest form requires the considerations of compassion and kindness and necessitates the application of mercy.  The People of this State, by statutory enactment of their state legislature, could have imposed upon you the requirement that you hold as charged every individual accused of the crime of driving while intoxicated for having a .15 % or higher blood alcohol content.  By not doing so, the People of this State expressly vest in you the power and authority to apply considerations of kindness, compassion and leniency to all of your criminal prosecutions, including the prosecution of individuals accused of the crime of driving while intoxicated for having a .15 % or higher blood alcohol content.

Whereas I do know what factors you do not consider in the exercise of your prosecutorial discretion: as stated above, economic privilege, social status, political affiliation and any other form of rank favoritism are all rejected by you; I do not know what factors you do consider in your dispensation of justice.  Obviously, your ultimate obligation as top law enforcement officer is the overall safety and security of the entire community; you carry out that obligation best when you protect those least able to protect and care for themselves.  Similarly, I will bet that you shower the most favor upon those members of the community who have previously given of themselves to those other members of our community who are least able to provide for and care for themselves.  In other words, the community should give back to those who have previously given to it.

Most respectfully, I submit to you that the community which you so honorably serve would be entirely satisfied if you exercised your prosecutorial discretion in favor of the accused, Alan Bender.  Most respectfully, I suggest to you that because Alan Bender volunteered so much of his time, and devoted so much of his talents, to those in our community least able to care for themselves, prior to his involvement in the alleged DWI charge, that our community would rightfully acknowledge his prior good deeds, our community would agree that his prior good deeds outweigh the current misdeed for which he stands accused, and when balancing all of the factors, our community would be well served if you made an exception for Alan Bender and offered him a reduced plea to a DWAI as a thoughtful exercise of your prosecutorial discretion.

An exercise of prosecutorial discretion in favor of Alan Bender would promote volunteerism, encourage community involvement and most importantly, improve the quality of life of some of the most vulnerable members of our society.  Thus, if you were to show mercy to Alan Bender you would be furthering your objective of improving the quality of life of the residents of our community.

Prior to his involvement in the alleged DWI charge, Alan volunteered his time at a local children’s center for many years.  Starting in middle school, Alan has been devoting hundreds of hours per year volunteering his time working with young children at the Children’s Center at Purchase College.  The staff at the Children’s Center has been so grateful to Alan for his many years of volunteer service, and so impressed with his ability, that they recently hired him as an assistant teacher.

Prior to his involvement in the alleged DWI charge, Alan volunteered his evenings at the local soup kitchen.  He spent countless evenings at the AME Zion Church on Smith Street in Port Chester, New York serving meals to the indigent and cleaning up after them.  Under the supervision of Ms. Logan, Alan spent many nights helping out the least fortunate of his community.

In recognition of his many hours of volunteer service to his community, in November 2000 Alan Bender was awarded a Certificate of Merit from the Westchester County Youth Board and the Westchester County Board of Legislators.  In making this request for a special exception and a reduced plea for Alan, I suggest to you that the citizens you serve and protect would select Alan for special treatment because in the last ten years he has given so much to them.

Finally, Alan Bender recognizes that he is not worthy of any leniency from his community or from the District Attorney if there is any possibility of the situation ever happening again.  There are no conditions on Alan’s ROR status.  He was not referred to TASC or anywhere else.  Nevertheless, Alan immediately and voluntarily enrolled himself into an OASAS-approved Outpatient Chemical Dependency Treatment Program.  He attends and participates in the program, and will continue to do so, until successful completion.  He entered the program voluntarily to evaluate himself for any underlying problem and also to assure you that there is absolutely no chance that the situation that Alan Bender placed himself in will ever happen again.

Thank you so very much for taking an office full of excellent prosecutors and transforming it into an ethical instrument of justice, honorable and even-handed.  A rising tide does indeed lift all boats, and your leadership has raised the bar throughout the County.  I thank you, in advance, for your consideration of our application for leniency and a reduced plea, and assure you that I would not make this request if there was any chance that granting my request would be inconsistent with the high standards you have set for yourself and your office.  Rather, I believe that if you grant my request, and thereby give clemency to the person who volunteered countless hours to his community, you are using your prosecutorial powers for community improvement, promoting the noble endeavor of civic duty, and encouraging acts of charity and kindness toward our neighbors.

Once again, I thank you for your consideration of my request.  If you have any questions or concerns, please contact me.

 

Sincerely,

 

MARTIN & COLIN, P.C.
WILLIAM MARTIN

WM/cb
Enclosures
cc:  Alan Bender

Filed Under: Criminal

Complete Dismissal of All Charges against Business Owner

November 13, 2011 By

Martin & Colin, P.C. announces that it has obtained the complete dismissal of all charges filed against a New York City business owner (identity withheld) in Manhattan. As part of his business operation, the owner delivers cash to several different locations throughout Manhattan, the Bronx and Westchester each day. The businessman was seated in a work vehicle when NYPD police detectives approached, with guns drawn but without any probable cause, and ordered all occupants to get out of the van. While the occupants were handcuffed and seated behind the van, the detectives conducted an illegal search of the entire work vehicle. The NYPD police officers seized the owner’s van and tens of thousands of dollars in cash stored within the van, charging the business owner and all other occupants of the vehicle with drug possession. As soon as they were retained, the lawyers at Martin & Colin, P.C. aggressively pursued complete dismissal of all charges based on the business owner’s Fourth Amendment constitutional right to be free of unreasonable search and seizure. On November 10, 2011, the date trial was scheduled to begin, the New York County District Attorney’s Office conceded that the defendants had been deprived of their right to a speedy trial, and the judge dismissed all charges. Records of the case were sealed.

Filed Under: Criminal Tagged With: , , , ,

What if Your Driver’s License is Taken Away

August 19, 2011 By

The New York State Bar Association has published a brochure highlighting offenses that will result in your license being taken away and explaining actions that will be taken by the Department of Motor Vehicles (DMV). These are some of the New York State Bar Association’s findings:

Criminal Convictions Can Result in DMV Actions

- Driving while intoxicated (DWI) or with .08% blood alcohol concentration . . . 6-month revocation.

-DWI or DWAI-Drugs committed within 10 years of any previous violation . . . 1-year revocation.

-DWAI committed within 5 years on any previous alcohol or drug related violation . . . 6-month revocation.

-First alcohol or drug-related violation by a driver, except Zero Tolerance, under age 21 . . . 1-year revocation.

-Second alcohol or drug related violation by a driver, except Zero Tolerance, under age 21 . . . revocation until age 21 or 1-year, whichever is longer.

Driving under the influence (DUI) outside of New York State

-Alcohol…90-day revocation.

-Homicide, assault, or criminal negligence resulting in death from the operation of a motor vehicle…6-month revocation

-False statement on an application for a license or registration, or substitution by another driver for a road test: Conviction in criminal court…6-month revocation/Finding by a DMV administrative law judge… 1-year revocation

-Speed contest …..6-month revocation

-Second speed contest within 3 years… 1-year revocation

-3 Speeding and/or misdemeanor traffic violations committed within 18 months…6-year revocation

-3 Violations for passing a stopped school bus within 3 years…6-month revocation

___________________________________________________________________
Suspension Charges

 -Driving while ability impaired by a drug(DWAI-Drug)……. 6-month suspension

-Driving while ability impaired by alcohol (DWAI)….90-day suspension

-Driving under the influence of a drug outside of New York State..…..6-month suspension

____________________________________________________________________
Your license will be suspended if you are arrested or detained for any alcohol or drug related charge and refuse to take a chemical test.

If refusal to take a chemical test is confirmed at a DMV hearing, your license will be revoked for at least six months and you will be assessed a civil penalty of at least $300.

Zero Tolerance Law makes it illegal for a driver under the age of 21 to have consumed alcohol.

A police officer who believes you have consumed alcohol but not enough to charge you with a DWI or DWAI may temporarily detain you and request a test for blood alcohol content.

If you illegally purchase alcoholic beverages by using a New York State driver License or Non-Driver ID card as proof of age, state law requires suspension of your driver license or privilege of applying for a license.

Under the New York State’s Open Container Law, it is a traffic infraction for a driver or passenger in a motor vehicle to drink or possess an alcoholic beverage with intent of drinking it.

Completion of a motor vehicle accident prevention course will not reduce the calculation of points affecting the driver responsibility assessment.

If you receive a DMV inquiry letter about vehicle liability insurance, read it carefully and be sure to respond as directed.

You can reduce up to four points from your driving record and save up to 10 percent on your auto liability insurance premiums by completing a DMV-approved accident prevention course.

There is a $25 fee to have a license suspension terminated.

$35 fee for failure to pay a fine, or failure to answer a traffic ticket, mandatory surcharge, or crime victim assistance fee.

If your license is revoked, you may not apply for a new one until you pay a $50 non-refundable re-application fee. The fee does not apply to drivers whose licenses are revoked for not having insurance, or who complete New York State’s Drinking Driver Program.

Aggravated Unlicensed Operation (AUO) is driving while your license is under suspension or revocation.

AUO-3rd degree is a misdemeanor

AUO-2nd degree is a misdemeanor

AUO-1st degree is a felony.

Aggravated failure to answer tickets or failure to pay fines is a misdemeanor punishable by a mandatory surcharge, and/or imprisonment for up to 180 days.

If your license is suspended or revoked you may be eligible for a conditional or restricted license that allows you to drive in limited situations. (Example: to and from work)

If you have an out-of-state license, your privilege to drive to drive in New York State can be suspended or revoked. You may request for your driving privilege to be restored by writing to The New York State Dept of Motor Vehicles, Driver Improvement  Bureau, 6 Empire State Plaza, Albany, NY 12228.

DMV Definitions:

  • Compliance- Credit for the suspension or revocation of a driver’s license does not begin until the license is turned in to a court or DMV.
  • Suspension- Your privilege to drive is taken away for a period of time, then returned.
  • Revocation- Your privilege to drive is cancelled. Re-application for a new license or permit is  necessary once the revocation period is over.
Filed Under: Criminal Tagged With: , , , , ,

Your Rights if Arrested

August 19, 2011 By

Your Rights if Arrested

Recently, the New York State Bar Association published a brochure highlighting the rights a person has if ever arrested in New York. These are some of the Bar Association’s findings:

  • When making an arrest without a warrant a police officer must tell you the reason for the arrest, unless you’re in the act of committing the crime or being chased.
  • Warrants may be executed at any time during the week.
  • A police officer must tell you that he is acting under the authority of a warrant and show you the warrant if you ask.
  • If you refuse to let a police officer with a warrant in, he/she may break open the door or window to gain entrance, after he has given you notice of his authority and purpose.
  • A police officer may arrest you without a warrant if a crime or violation is being committed in his presence or if he has reason to believe that you committed a crime although not in his presence.
  • A citizen may arrest you if you have committed a crime in his presence.
  • You may sue a private individual for an unlawful arrest if you did nit commit any crime, even if the individual had reasonable cause to believe you had committed a crime.
  • If you have been arrested by a private citizen, you must be turned over to a judge or police officer without unnecessary delay.
  • If you resist arrest, a police officer may use all necessary means to arrest you, including force.
  • The law permits a police officer to approach any person in a public place to request information if he reasonably suspects that you have committed or are about to commit a crime. However, you are not required to answer.
  • When you are lawfully arrested, your person and the immediate are of the place of your arrest may be searched.
  • If a police officer searches you for dangerous weapons and finds something, he may keep it until he finishes questioning you. If he does not arrest you, he must give you back the weapon (if you have a permit to carry it.)
  • In all situations, a police officer needs a warrant to search you, unless under special circumstances that can be justified by the lay.
  • Anything unlawfully taken by the police may not later be used against you.
  • If taken into custody:
  1. -You have the right to telephone your lawyer or your family or friends to notify them of your arrest.
  2. -You have the right to speak with your lawyer at the place you are being held.
  3. -You have the right to remain silent.

-Before the police question you, they must tell you that you have the right to remain silent. That anything you say can be used as evidence against you, and you have the right to first speak with an attorney. If you cannot afford one, one will be appointed to you.

  • When you are arrested, a record of your arrest is made. If the case I dismissed, you may apply for the sealing of the record of that case. If personal items are taken from you, you must be given a receipt to show what was taken.
  • Your right to a lawyer is a fundamental one at every stage of a criminal proceeding.
  • If you appear in court without a lawyer, the judge must allow you “reasonable time” to find one.
Filed Under: Criminal Tagged With: , , , , ,

The Dangers of Drinking and Driving in New York State

August 8, 2011 By

Even a Little Alcohol is Too Much Alcohol

If you think that it is safe to drive after having consumed only a small amount of alcohol, euphemistically referred to as merely “social drinking”, the facts and statistics on this page may surprise you. Recently, the New York State Bar Association published a brochure demonstrating the dangers of driving while under the influence of alcohol, and here are some of the Bar Association’s findings:

  • One third of the fatalities in New York State involve impaired or intoxicated drivers and pedestrians.
  • A driver with a BAC (blood alcohol content) of 0.08 is four times as likely to cause an accident as a driver who has not been drinking. A driver with a BAC of .16 is 25 times as likely to do so.
  • Young drinking drivers are at the highest risk of all. Drivers 20 years old or younger are almost 3 times as likely to be involved in alcohol related fatal crashes than other drivers.
  • Any amount of drinking will affect your judgment and coordination, and reduce your ability to judge distances, speeds, and angles.
  • The degree of impairment depends on four basic factors: 1) The amount you drink; 2) Whether you’ve eaten before or while drinking (food slows absorption); 3) Your body weight; and 4) The length of time spent drinking.
  • The only way to reduce your BAC is to wait for your body to metabolize (eliminate) it.
  • Every county in New York State has a STOP-DWI program.
  • If you are stopped by an officer who believes that you are under the influence of alcohol or drugs, you may be asked to take a field sobriety test. If you are arrested for allegedly being under the influence of drugs or alcohol, you will be asked to take a chemical test for BAC (i.e., blood alcohol content).
  • BAC is the measure of concentration of alcohol in a person’s blood.
  • License penalties for drinking and driving are different for people who are under 21 vs. people who are 21 and older.
  • Your privilege to drive or apply for a license will be suspended if you are found guilty of using a non-driver identification card or NY State Driver’s License to illegally purchase alcohol under the age of 21. (Motorboat and snowmobile operators under the age of 21 are subject to similar penalties and sanctions against their operating privileges.)
  • The law prohibits a plea to a non-alcohol or drug-related violation.
  • Refusal to take a chemical test for BAC will result in a license suspension at a DMV hearing and a civil penalty of $300. Drivers under 21 years old are subject to 1 year license revocation and a $300 civil penalty.
  • Drivers holding a CDL (i.e., Commercial Driver’s License) are held to stricter BAC standards and face tougher penalties, while operating a vehicle that requires a CDL license.
  • The Zero Tolerance Law makes it illegal for a driver under the age of 21 to consume any alcohol.
  • The ignition interlock program can be a condition of probation due to an alcohol or drug related license revocation.
  • The ignition interlock device connect to the motor vehicle ignition system and measure the alcohol content on the on the operator’s breath. It prevents the vehicle from being started until the driver provides an appropriate sample breath.
  • Some penalties for DWI and DWAI include annual payments to the Department of Motor Vehicles each year for an appointed number of years.

 

Filed Under: Criminal Tagged With: , , , , ,

Off Duty Police Officer Acquitted of All Charges

July 16, 2011 By

Martin & Colin, P.C. announces that it has obtained the complete dismissal of all charges filed against a local village police officer (identity withheld) in Westchester County, New York.  The officer had been charged with attacking another individual, while off duty, at a local summer camp.  The trial was concluded in one day.  At the conclusion of the trial, the judge dismissed all charges, finding the off-duty officer was not guilty.  Local media carried the following comments by William Martin, who represented the off-duty officer at the trial:  ”The judge’s ruling was correct.  The entire prosecution was a travesty.  It was clear from the outset that [the off-duty police officer] was the victim all along, and I think that is what the trial showed.”  Records of the trial were sealed.

 

 

 

Filed Under: Accomplishments, Criminal Tagged With: , , , , , , , ,

Attempted Murder Charge – Dismissed!!

May 20, 2011 By

Martin & Colin, P.C. announces that it has obtained the complete dismissal of all criminal charges lodged against a client in the Bronx, New York.

On October 13, 2010, a client, Mr. B. (fictitious name), was charged with the Class A Misdemeanor crime of Leaving the Scene of an Accident Involving Personal Injury based upon an incident that allegedly occurred on October 1, 2010. When Mr. B. appeared in court with his attorney on January 27, 2011, two NYPD detectives arrived at the Bronx Criminal Courthouse on 161st Street and took Mr. B. into custody. They advised Mr. B. and his attorney that, at the direction of the District Attorney’s Office, the charges were being upgraded.

Mr. B. was taken into custody and booked on a total of ten charges; the most serious charge was Attempted Murder in the Second Degree. The District Attorney’s office sought $250,000 bond/cash bail, but the lawyers from Martin & Colin, P.C. fought for Mr. B.’s release on his own recognizance, and after a bail hearing, Mr. B. was released R.O.R.

After a speedy but extensive investigation, the attorneys at Martin & Colin, P.C. advised the Bonx Criminal Court of Mr. B.’s desire to waive immunity and testify before the grand jury. We prepared our client Mr. B. thoroughly for his grand jury appearance. With counsel present, the defendant Mr. B. appeared and testified to the grand jury.

Our client’s compelling testimony caused the grand jury to demand additional evidence, and its review of the additional evidence, the grand jury voted not to indict the defendant, Mr. B., on any charges. All ten charges were dismissed.

Upon being informed by the Office of the District Attorney that the grand jury had voted to dismiss all charges against their client, Mr. B., the lawyers at Martin & Colin, P.C. advised Mr. B. that justice had been served, and the accused was relieved that the criminal case was resolved quickly, efficiently, and entirely in his favor.

Filed Under: Accomplishments, Criminal Tagged With: , , , ,