Recent Blog Posts

Criminal Procedure Law 170.55-The regular A.C.D.

Stephan J. Siegel — Mon, 14 May 2012 18:23:00 GMT

The most common adjournment in contemplation of dismissal is the one granted pursuant to Section 170.55 of the New York State Criminal Procedure Law. The statute states that:

"1. Upon or after arraignment in a local criminal court upon an information, a simplified information, a prosecutor's information or a misdemeanor complaint, and before entry of a plea of guilty thereto or commencement of a trial thereof, the court may, upon motion of the people or the defendant and with the consent of the other party, or upon the court's own motion with the consent of both the people and the defendant, order that the action be "adjourned in contemplation of dismissal," as prescribed in subdivision two.

2. An adjournment in contemplation of dismissal is an adjournment of the action without date ordered with a view to ultimate dismissal of the accusatory instrument in furtherance of justice. Upon issuing such an order, the court must release the defendant on his own recognizance. Upon application of the people, made at any time not more than six months, or in the case of a family offense as defined in subdivision one of section 530.11 of this chapter, one year, after the issuance of such order, the court may restore the case to the calendar upon a determination that dismissal of the accusatory instrument would not be in furtherance of justice, and the action must thereupon proceed. If the case is not so restored within such six months or one year period, the accusatory instrument is, at the expiration of such period, deemed to have been dismissed by the court in furtherance of justice.

3. In conjunction with an adjournment in contemplation of dismissal the court may issue a temporary order of protection pursuant to section 530.12 or 530.13 of this chapter, requiring the defendant to observe certain specified conditions of conduct.

4. Where the local criminal court information, simplified information, prosecutor's information, or misdemeanor complaint charges a crime or violation between spouses or between parent and child, or between members of the same family or household, as the term "members of the same family or household" is defined in subdivision one of section 530.11 of this chapter, the court may as a condition of an adjournment in contemplation of dismissal order, require that the defendant participate in an educational program addressing the issues of spousal abuse and family violence.

5. The court may grant an adjournment in contemplation of dismissal on condition that the defendant participate in dispute resolution and comply with any award or settlement resulting therefrom.

6. The court may as a condition of an adjournment in contemplation of dismissal order, require the defendant to perform services for a public or not-for-profit corporation, association, institution or agency. Such condition may only be imposed where the defendant has consented to the amount and conditions of such service. The court may not impose such conditions in excess of the length of the adjournment.

7. The court may, as a condition of an adjournment in contemplation of dismissal order, where a defendant is under twenty-one years of age and is charged with (a) a misdemeanor or misdemeanors other than section eleven hundred ninety-two of the vehicle and traffic law, in which the record indicates the consumption of alcohol by the defendant may have been a contributing factor, or (b) a violation of paragraph (a) of subdivision one of section sixty-five-b of the alcoholic beverage control law, require the defendant to attend an alcohol awareness program established pursuant to1 subdivision (a) of section 19.07 of the mental hygiene law.

8. The granting of an adjournment in contemplation of dismissal shall not be deemed to be a conviction or an admission of guilt. No person shall suffer any disability or forfeiture as a result of such an order. Upon the dismissal of the accusatory instrument pursuant to this section, the arrest and prosecution shall be deemed a nullity and the defendant shall be restored, in contemplation of law, to the status he occupied before his arrest and prosecution.

9. Notwithstanding any other provision of this section, a court may not issue an order adjourning an action in contemplation of dismissal if the offense is for a violation of the vehicle and traffic law related to the operation of a motor vehicle (except one related to parking, stopping or standing), or a violation of a local law, rule or ordinance related to the operation of a motor vehicle (except one related to parking, stopping or standing), if such offense was committed by the holder of a commercial driver's license or was committed in a commercial motor vehicle, as defined in subdivision four of section five hundred one-a of the vehicle and traffic law."

This is the classic A.C.D. that criminal practitioners love to obtain for their clients. In Queens County, it seems that the disposition is underutilized by prosecutors who seem to prefer that the defendant plead guilty to something rather than consent to charges ultimately being dismissed.

An A.C.D. is basically a dismissal in the interests of justice and can only be granted with the consent of the prosecutor.

The court is authorized to set conditions on the ultimate dismissal pursuant to an A.C.D. Participation in a program or in counseling is quite common, as is the issuance of an order of protection with respect to the complaining witness. Any violation of these conditions can be the basis for the prosecution to exercise the right to restore the case to the calendar. Barring violation, eventuality the case will automatically be dismissed at the end of the adjournment period. C.P.L. 170.55 provides for a ROR release upon initial granting of an A.C.D.

While an A.C.D. IS a favorable termination of the case, it is not considered to be a termination in favor of the defendant for the purposes of a subsequent civil lawsuit. Accordingly, it tends to have a negative effect on the viability of a subsequent lawsuit for civil damages.

NEVER turn down an A.C.D.

Stephan J. Siegel — Mon, 07 May 2012 17:25:00 GMT

Any time a person is arrested, their ultimate goal is to obtain the best possible result. The best possible result is a dismissal of the charges. That is why, subject to a few exceptions that are relatively rare, I tell almost all of my clients to never turn down an A.C.D.

An A.C.D. (or an ACD, commonly known in Nassau and Suffolk as either an ACOD or an A.C.O.D.) is the abbreviation of a disposition authorized in sections 170.55 and 170.56 of the New York State Criminal Procedure Law (commonly referred to as either N.Y.S.C.P.L., C.P.L. or CPL) more formally known as an adjournment in contemplation of dismissal.

An adjournment in contemplation of dismissal is a disposition where the court adjourns the case for six months. If the defendant is not rearrested (for any reason) and complies with all terms and conditions of the court when the case appears again on the calendar the judge orders that the case papers be physically sealed and that the fingerprints and the mug-shots be deleted from the system. Accordingly, there is no legal record of the arrest or prosecution as a result of whatever caused the arrest in the first place. In fact, according to the law, the defendant can legally state that he or she was never arrested as a result of the incident. In the eyes of the law, the incident never happened! It is a very big win indeed!

Before deciding whether to take an A.C.D. or any other criminal disposition, it is vitally import to consult with your lawyer and make sure that you understand completely what is going on. Otherwise, you may make a serious mistake. I always encourage my clients to feel free to call me if they have any questions about their case. A lawyer can only provide the best defense when he and the client are on the same page. Therefore, if my clients have questions, I want them to ask away. The only dumb questions are those questions that the clients are afraid to ask because they are afraid to ask what they think may be a dumb question. Good luck!

In future blog posts, we will examine in more detail the differences between regular and drug adjournments in contemplation of dismissal brought pursuant to sections 170.55 and 170.56 of the New York State Criminal Procedure Law (CPL 170.55 & CPL 170.56).

A domestic violence connundrum

Stephan J. Siegel — Fri, 04 May 2012 19:11:00 GMT

It was a beautiful afternoon on a surprisingly sublime Sunday afternoon during the Indian summer about eight months ago. My soon-to-be client returned home about two or three hours after the time he told his wife he would be home for dinner. When he arrived home it was clear that he had been drinking more than a reasonable amount. Thank G-d he did not hurt anybody on his drive home. When he finally entered his home, it was not only the roast beef that was burnt to a crisp. In fact, his wife's burning rage made the roast seem cool at that. It was a recipe of impending disaster.

After yelling at him for a while about his being late and keeping the company waiting, she started to berate his intelligence and his inebriation. To prove her wrong, he slapped her across her cheek. His wife's sister, one of the dinner guests was not amused. She joined the fight and put herself very much in his face so he gave her a slap as well. When his sister-in-law tried to hit him with her I-Phone, he took a hammer and smashed it, along with her brand new I-Pad that had been resting on the kitchen table, minding its own business. While he did not succeed in endearing himself to anybody, he did succeed in getting himself arrested for assault in the third degree, criminal mischief and harassment. The first two charges were "A" misdemeanors punishable by up to one year in jail and the harassment was a violation punishable by up to fifteen days in jail.

At his arraignment, the court issued orders of protection with respect to his wife and sister-in-law. The orders of protection ordered him to stay away from them and have no contact of any sort with either of them. After he was released, he contacted me to represent him. The first thing that he told me was that his wife keeps on calling him asking him to come back home. I explained to him that the policy in Queens is to issue what is known as a "full stay-away order of protection" any time that allegations of domestic violence are made against a defendant. I further explained that if he did not comply with the order that he could be arrested for a criminal contempt of court charge as a "D" felony that carries a maximum punishment of seven years incarceration in state prison.

He told me that he did not have a problem with the "stay away" order but his wife was very upset. She wanted him back badly. He told me that he thought it was safer for him to stay away from her as long as the case was pending since he was afraid that she might get angry at him and have him arrested again. A wise decision indeed!

My client and I were quite lucky in that the assistant district attorney assigned to the case was extremely wise and interested more in a resolution to the underlying issues rather than a quick conviction. She agreed with me that it was more important to resolve his alcohol and anger issues than to bestow a criminal record upon him, even though it would have been legally justified. I suggested that a court-approved program that dealt with alcohol abuse, anger management and spousal abuse was the way to go. The assistant district attorney agreed and my client enrolled in the Queens PAC Program, a well-run program that is well equipped to deal with alcohol/substance abuse issues, anger management as well as the various sequella that are frequently found in criminal cases involving allegations of domestic violence. After about twenty-four weeks of counseling and several speed bumps, my client received his certificate of completion. As a result, the assistant district attorney prosecuting the case consented to an adjournment in contemplation of dismissal, commonly known as an A.C.D. An adjournment in contemplation of dismissal is a disposition where the matter is adjourned for six months. At the end of the six month adjournment, if there are no further arrests and full compliance with all of the terms and conditions set by the court and the program, the judge dismisses the case and orders that the case papers be physically sealed and that the fingerprints and the mug-shots be deleted and expunged from the system. Accordingly, the client has no criminal record as a result of the incident and the client can legally state that he was never arrested. In the eyes of the law, the incident never happened! It is a very big win indeed!

My client was lucky. Not every person accused of domestic violence ends up having their case dismissed. It requires an enormous amount of hard work by an attorney who is intimately involved in defending clients accused of domestic violence. That lawyer must have complete credibility with the district attorney and must be a skilled and articulate advocate who is dedicated to providing the best defense possible. It also requires that the judge and prosecutor be wise and focused on helping resolve problems rather than merely interested in obtaining convictions.

My rights were violated: what should I do?

Stephan J. Siegel — Fri, 20 Apr 2012 16:12:00 GMT

The most common comment I hear from a newly arrested defendant is that "my rights were violated." The question is what to do as a result of the violation of the rights of the defendant.

At the outset, it is appropriate to explore the most common rights that are violated by law enforcement officidals. It also makes sense to examine certain common law enforcement practices that in fact are not violations of any constituitonal rights.

While mostcriminal defendants arenot aware of the actual names of their rights, it seems that somehow many accused individuals know that they have certain rights. I believe that there are seven common rights that are frequently violated by law enforcement officials. These rights are all accorded hearings to determine if the rights have been violated as follows:

Darden: People v. Darden, 34 N.Y.2d 177, 356 N.Y.S.2d 582 (1974) A hearing held in camera in which the judge determines, without disclosing the identity of an informer, whether sufficient information was given by the informer to justify the search warrant that was issued.

Dunaway: Dunaway v. New York, 441 U.S. 200, 99 S.Ct. 2248 (1974) A hearing to determine whether the prosecutions' evidence should be suppressed because it resulted from a defendant's arrest without probably cause.

Isaacson: A hearing to determine whether prosecutorial misconduct was so egregious that the case should be dismissed, People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714 (1978)

Mapp: Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961)

Miranda: The warnings that a law enforcement offical must give to a defendant or a suspect beofer he or she commences any interrogation

Sandoval: People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974) A hearing to determine which portion of a defendant's prior record can be brought out by the prosecution at his trial if the defendant testifies.

Stovall: Stovall v. Denno, 338 U.S. 293, 87 S.CT. (1967) A hearing to determine whether a witness in-court identification of the defendant violates the due process of the Constitution.

Wade: United Statesv. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967) A hearing to determine whether an in-court identification should be suppressed as being in violation of the defendant's Sixth Amendment right to counsel.

Assuming that one or more of these rights have been violated, a skilled criminal defense lawyer will obtain a hearing to determine if the evidence obtained as a result of the violation fot he particular right is properly admissalbe against the defendant.

In order to take advantage of the rights that the law bestows upon every suspect, you must hire a skilled criminal defense lawyer. In this regard, you must evaluate your choice of counsel as a functio of who will provide the best defense.

Good luck!

Prosecution of Prescription Drug Abuse

Stephan J. Siegel — Wed, 04 Apr 2012 15:46:00 GMT

Recently, the perilous potential for disaster with the use of prescription drugs was viscerally illustrated in a tragic incident in Medford, New York in a picturesque part of Long Island. A crazed man and his drug-crazed wife were desperate for oxycodone and robbed a pharmacy. For no good reason, the man shot and killed a pharmacist and customers in the store.

For good reasons, law enforcement has taken a sincere interest in preventing the abuse of prescription drugs, especially narcotic painkillers such as oxycodone, hydrocodone, Endocet, Endodan, ETH-Oxydose, Endone, Oxycontin, OxyFast, OxyNorm, Percodan, Percocet, Rosicodione, roxilox, Roxiprin.

In addition to causing decreased levels of testosterone, other common side effects include dizziness, itching, nausea, sweating, drowsiness, constipation, vomiting, euphoria, urethra spasms, difficulty in urinating and respiratory depression. More worrisome to society is the fact that these drugs can cause anxiety, paranoia, panic attacks and aggressiveness.

For these reasons, there is an increased emphasis on prosecuting patients who misuse these drugs as well as physicians who prescribe them. Generally, the prosecutions are for various felonies, some of which can carry life sentences. These are serious crimes indeed!

If you or a loved one is arrested in connection with the wrongful distribution, proscribing or abuse of prescription drugs, you must immediately hire a lawyer who is experienced in defending these cases. While no honest lawyer can promise a specific outcome, you best chance of minimizing the prejudice that inures to your detriment is by hiring an attorney who is experience in handling drug cases and who has established an excellent reputation for competence, integrity and hard work.

Factors in choosing the best criminal defense attorney

Stephan J. Siegel — Mon, 27 Feb 2012 17:16:00 GMT

If you are reading this article, you probably are trying to find that lawyer who will obtain the most favorable outcome for your case. Because every criminal case is different, the range of outcomes will vary based upon the specific facts and circumstances of each particular case. You want to hire the lawyer that you are confident will succeed in bringing about the best possible result. We briefly discussed the basic criteria of choosing a criminal defense lawyer in a previous blog entitled "When the detective calls and wants to talk with you." We will go into more detail here.

You need a lawyer with a reputation of competence, dedication, experience, integrity and the willingness to work hard to get the best result possible for you.

How do you find the lawyer that has these attributes?

The best way to find any good professional is to obtain a referral from somebody in the same general profession. If you have a family lawyer, ask him or her for the name of a good criminal lawyer. If your family lawyer is unavailable or you have none, try and get a referral from a trusted clergyman or a friend. In either case, make sure that the clergyman or friend has personal knowledge about the competence, dedication, experience and integrity of the lawyer being recommended. Each of these attributes is important but in my opinion, the order of importance of these attributes is:

(1) Integrity;

(2) Experience;

(3) Competence; and

(4) Dedication.

If you are unable to obtain a personal referral, call the local bar association in the county where the incident occurred which will almost always be the same county in which the case is prosecuted.

If none of these methods are available, you should conduct an on-line search for a criminal lawyer who has his office in the county where the charges are pending and who regularly practices there. Of course you want to try and hire an advocate who will have the above four requisite characteristics.

Any on-line search and examination of an attorney's website should give you a general idea about the lawyer and if he or she seems likely to be able to provide the kind of defense your case demands. It is important that you read between the lines and be a wise consumer. Use the vitally important criteria mentioned above to help you make a wise decision. Your entire future may depend on the person you choose to represent you.

Reject immediately any lawyers who offer guarantees as to the outcome of your case. After thoroughly discussing the particular facts and circumstances of a case with a potential client, I am always happy on those occasions when I can tell the client (and usually his or her family as well) that we have a good chance of obtaining a dismissal. However, no honest lawyer can ever promise that the case will be dismissed. And if the lawyer you choose is an expert criminal lawyer, he or she probably represents many clients charged with serious crimes where the best outcome may be to obtain a prison sentence less than that sought by that is less than what is re is a possibility of lengthy prison sentences where it is not always possible to predict a positive outcome. Sometimes, it is the lawyer's ethical obligation to tell a potential client that their best strategy is to minimize their losses as quickly as possible by negotiating as favorable a plea bargain as soon as possible. The only guaranteed results or promise that an honest lawyer can make is that he will do his best for his client.

An honest and effective advocate who has the respect of the court and the local district attorney's office will always prefer that a defendant hire another lawyer rather than not provide an absolutely accurate and truthful analysis of the case.

Several years ago, I was hired on the recommendation of several local lawyers, each of whom have been sending cases to me for more than a quarter of a century. The defendant was charged with vehicular homicide. Accompanied by several friends who were drinking with him in the car, he drove more than 90 miles per hour while drunk on an access road at J.F.K. Airport. He killed one of his friends who was driving with him. It turned out that over the last twenty-five or thirty years, Upon being retained, I immediately called the prosecutor asigned to the case. We have been adversaries on many occasions. While he had a well-deserved reputation of being a skilled, tough and well prepared adversary, he was also known as an extremely ethical, fair and reasonable person. He agreed that if the defendant immediately pled guilty that he would recommend a sentence of one to three years in prison. The defendant and his family felt he should not have to serve any time at all. They replaced me with a much more "skillful" lawyer who I understand told them that he could get the defendant a sentence of probation. Ultimately, the client received a sentence of four to twelve years in prison. Honest advocacy means that sometimes you have to tell clients things they may not want to hear.

What about fees. Obviously, you cannot pay more than you can afford. Some lawyers charge bargain basement prices, some charge fees only celebrities can afford and most lawyers charge somewhere in between.

You need to hire a lawyer who will focus on your case and spend as much time as is needed to bring about the best possible outcome, whatever that may be based on the particular facts and circumstances of your case. It is therefore difficult to understand how some lawyers advertise that they can take a case for $750 or $1,500 and be able to spend as much time as is needed to properly handle the case. Criminal cases are serious matters that require the full, complete and undivided attention of the lawyer handling the case. They often require the attorney to invest substantial amounts of time and effort on your behalf and they cannot do so without adequate compensation.

On the other hand, it is true more often than not that most of the times a person hires a celebrity lawyer, he is paying more for the excellent public persona that the lawyer has developed rather than legal skills that frequently are not any better than the skills of any other first rate lawyer who charges fees that more accurately reflect the experience of the lawyer and the anticipated time that a case may require.

Competent lawyers who are not satisfied with providing less than superlative representation require more substantial retainers than their cheaper colleagues because of the time, effort and skill they invest in their clients' cases. They are not satisfied with providing less than exemplary criminal defense services. Before you hire a lawyer who charges much less than other lawyers, ask him how many cases he or she handles a year and how many trials he conducts a year. A lawyer who handles a large number of cases probably cannot devote as much time to a case as will his better paid colleague. Highly talented, trained and experienced attorneys must charge somewhat higher prices for their services as a function of their being ready to put in the time and effort needed to effectively bring about the best possible result for you.

When you are facing a criminal conviction and possible imprisonment you must maximize your chances of obtaining the best possible result.

Good luck!

When the detective calls and wants to talk with you

Stephan J. Siegel — Tue, 21 Feb 2012 13:26:00 GMT

You come home and somebody says hello and then tells you that Detective SoAndSo from the 103rd Precinct Detective Unit called a few hours ago and wants to speak with you. Yikes-what do you do? The first thing to do is to not to talk to the detective. The second thing to do is to find a good criminal defense lawyer as soon as possible. Uh-Oh, how do you find a good criminal lawyer, especially when you are in a hurry?

The best way to find any good professional is to obtain a referral from somebody in the same general profession. If you have a family lawyer, ask him or her for the name of a good criminal lawyer. Most lawyers who have been practicing for a number of years have built up a network of reliable lawyers who practice in areas other than their own.

If your family lawyer is unavailable or you have none, try and get a referral from a trusted clergyman or a friend. In either case, make sure that the clergyman or friend has personal knowledge about the competence, dedication, experience and integrity of the lawyer being reccomended. Each of these atrributes is important but if pressed, i guess the order of importance of the atrtibutes you should be looking for in your lawyer are:

(1) integrity;

(2) experience;

(3) competence; and

(4) dedication.

If that doesn't work, call the local bar association in the county where the incident occurred. Usually that will be the same county as the county where the detecitve's precinct or detetive unit is located.

Finally, if none of the above work, do an internet on-line search. Call the lawyer whose website seems to project and display the attributes mentioned above in the order in which they are listed. In our next blog post, we will discuss in more deatil how to choose the right criminal lawyer for your case.

Good luck!

Desk Appearance Tickets

Stephan J. Siegel — Mon, 06 Feb 2012 16:22:00 GMT

Perhaps one of the scariest things that can happen to you is being issued a "desk appearance ticket" or an "appearance ticket," and most commonly refrred to as a "D.A.T." It is so scary because it almost always happens to a person who has never before come into contact with the criminal justice system.

A D.A.T. is most commonly issued to a person who is charged with a misdemeanor, which is the least serious type of criminal offenses or a violation, which is a non-criminal offense such as speeding, disorderly conduct, simple harassment or driving while impaired by the use of alcohol.

However, you need not worry about receiving a D.A.T. for driving while impaired, even though it is a violation with the same theoretical seriousness as disorderly conduct, going through a red light or speeding. The internal administrative rules of the N.Y.P.D. as well as every other jurisdiction I have dealt with in the New York metroplitan area, including New Jersey all require that any person charged with any traffic offense involving the use of alcohol or any other controlled substance must be formally arrested and put through the arrest process.

Similarly, while according to the New York State Penal Law, any person charged with a misdemeanor is eleigible to receive a desk appearance ticket, in fact if the allegations involve an alleged incident involving child abuse, domestic violence (including even domestic disputes) or any sexual improprieties, invariably the accused will be formally arrested and incarcerated until he or she is formally aprised of the charges by a judge at his arraignment. While a felony arrest can theoretically result in the issuance of a D.A.T., I have heard of this happeneing only a few times in the more than thrity five years that I have been practicing law and where I have witnessed well in excess of one hundred thousand cases being handled at one stage or another. It need not be stated that all of these rules can be waived by the commanding officer of the precinct who will do so under appropriate circumstances, generally with the approval of a deputy commissioner or higher officer.

At this point, the question you want answered is what should be done when you either just received a phone call that a family member was arrested or that the family member (or you) just received a D.A.T. We will deal with these two problems separately.

Any time that a family member has been arrested for any charge, the firtst thing to do is to immediately contact an experienced criminal lawyer. He will advise you what to do and as soon as he is formally retained, he will call the precinct and see if it is appropriate to visit the precinct to speak with the arresting officer and his supervisor in an effort to try and obtain a D.A.T. You need to hire a lawyer who is competent, experienced and dedicated to providing first rate professional services. That lawyer must know when to try and get the D.A.T. and when not to do so. In any event, he will instruct the arresting officer to not question the person who was arrested. When it comes to enforcing the law, the police are not your friends and they will spare no efforts to get the accused to mak statements that can be used against him later. The best way to find a fine lawyer is to rely on a reccomendation from a friend or family member. Even with a reccomendtion, if you do not feel that you will be able to work with the lawye, you should go with your gut and go somewhere else to find a lawyer that you will feel dcomfortable with. Once you have contacted a good criminal lawyer, he will guide you through the process. You may want to read the atricle in my wesite entitled Your Criminal Case.

If your loved one has already received a D.A.T., then you should endeavour to find a lawyer who is honest and experienced and who has a reputation of competence, dedication to his craft and excellent trial skills. IN this case, you have the luxuryf speaking with as many lawyers as you need to in order to find a lawyer who you are comfortable with and who you feel will provide your loved one with the best defense possible.

Good luck!

Gambling against your lawyer's advice is a losing propositon

Stephan J. Siegel — Sun, 25 Dec 2011 18:19:00 GMT

"You got to know when to fold, know when to hold em, know when to walk away, know when to run . . . you never count your money when you're sitting at the table, there'll be time enough for countin when the dealin's done" (The Gambler by Kenny Rogers). This is great advice at the poker table and when realisticially evaluating a criminal case. Some cases shouold be fought until dismissal and others require the pilgrm approach-an early settlement.

Havinig been trying criminal cases just several weels shy of thirty-five years, I am very aware that in order to stay in shape as the best trial lawyer possible in terms of keeping sharp, learning new tricks and maintaining a reputation of excellence, I am very well aware that it is still absolutely essential to constantly try cases. Trial law is like a ladder: you can go up or you can go down but it is almost impossible to stay in one place.

While I stopped keeping win/loss statistics more than twenty-five years agoo, I am reasonably certain that during my first fifteen or so years of practice, I was probably winning more than three quarters of my criminal trials, a percentage to be proud of since the Queens county district attorney generally boasts of close to a ninety percent convcition rate. About twenty years ago, I started accepting court assignments of homicide cases, almost all of which have been slam-dunks for the prosecution. Since finding cases to try that presented an intellectual challenge (and a learning experience) had become extremely difficult, I decided that to continue growing as an advocate that I would have to look for advrsaries who were the best trial alwyers to be found. That is why I joned the "homicide bar" where one can find prosecutors and defense lawyers who ove their profession and excel at trial advocacy because they work hard at being the best there is.

Ironically, since I began trying homicide cases, I have found that the quality of the plea offers that I receive in all criminal cases seems to be getting better and better. However, I alsoo recognize that the tryability and likelihood of a defense prevailing in almost all of the homicide cases presently pending in Queens county is getting worser and worser. Statistically speaking, based upon the facts and circumstances surrounding most Queens murders, the prevailing probability of a defense win is somewhere between slim and none. It is a widely known secret among elite trial lawyers that district attorneys prefer to dispose of all cases, including homicides, through negotiated settlements commonly known as plea-negotiations or "copping a plea." This both punishes the defendant, albeit with a reduced sentence, and at the same time keeps the number of trials necessitated in the criminal and supreme courts to an almost manageable level. It avoids the need to triple or quadruple the size of the courts, the prosecutors' offices and the publicly underpaid attorneys who represent the majority of criminal defendants in most courts around the state.

I recently finished a perfect example of a perfect case to resolve via negotaited plea. The defendant, a former burtcher, and his wife were in a long-term disaster of a marriage. She was happy with the marriage and especially did not like the fact that the defendant seemed to like to drink too much and request sexual favors without bathing or brushing his teeth. It is surprising that she never complained of domestic violence. It might have saved her life.

Her last evening in this world occurred during an argument about his physiological desires that need satsifying that was overheard by a sub-tenant who rented a room from them. He heard screaming and him telling her that he would smack her if she refused him. She said to go ahead (ouch). He then threatened to kill her if she did not give him sex. She told him to go for it, a fatal and foolish mistake as it turned out. It only took about five seconds to choke her and crush the jugular veins and carotid arteries, thus stopping any blood flow to her brain. Death by strangulation probably occurred in one minute, two at the most. The second witness was their daughter who was going to testify that Mommy always got her ready for school except for the next day. That day, Daddy got the kids ready. When the daughter passed by the parents bedroom and saw Mommy's feet sticking out of the blanket she asked if she could kiss Mommy goodbye and the defendant told her "no because Mommy is sleeping." Nobody ever heard from Mommy again. There were a bunch of other witnesses as well, about twenty-five in all, but you should have the general picture by now.

About a year later, some body parts were found that had been neartly disarticulated, much as might be done to the carcass of an animal that was slaughtered and sold in a butcher shop.

Facing the enormity of what he had done was probably tougher than strangling his wife, done in the midst of an emotion charged argument. As the jury was being brought in, he wisely decided to accept a rather beneficial plea bargain that meant that he would be able to look forward to getting out of prison in another fifteen years or so as oppposed to his serving a certain life sentence with a definitie minimum of at least fourty years or death in prison, whichever came first. He made the right decision.

The lesson is that when a skilled, talented lawyer tells you to take the plea, you will almost always be best off if you follow his advice. He has been there many times before. If you do not believe him get a second opinion. Betting against the sound judgment of an expereience trial lawyer is never a good bet.

Domestic Violence and Contempt of Court

Stephan J. Siegel — Wed, 07 Dec 2011 19:07:00 GMT

Domestic violence crimes are prosecuted under numerous sections of the Penal Law, including assault, menacing, reckless endangerment, stalking ( found in article 120 of the Penal Law), homicide ( found in article 125 of the Penal Law), rape, sodomy, sexual abuse ( found in article 130 of the Penal Law), kidnapping, coercion, custodial interference ( found in article 135 of the Penal Law) and criminal obstruction of breathing and strangulation (found in article 121 of the Penal Law).

During more than thirty four years of experience as a criminal defense lawyer, I have had the opportunity to represent clients charged with all of these charges, including obstruction of breathing and strangulation, which were only added to the Penal Law in 2010.

Domestic violence crimes are always more difficult to defend against than the same crime not charged in the context of a domestic violence incident as a function of the fact that the courts rightfully treat them as more serious than the same crime committed against a person not involved in an intimate relationship. Special units in the police department handle domestic complaints, special bureaus in the various district attorneys' offices handle the prosecutions and special courts are designated to handle only domestic violence matters.

The courts understand that generally speaking, a defendant is not charged with a domestic violence crime the first time that he or she abuses a spouse, child or other party involved in an intimate family-like relationship. Furthermore, a domestic abuser generally does not stop abusing until something drastic happens. Usually that is a serious physical injury, homicide or arrest arising out of the fact that the abused person can no longer tolerate what generally is an escalating pattern of abuse and violence.

A part of every domestic violence prosecution is the issuance of orders of protection against the alleged abuser.

Sadly, many abused persons (mostly women) either feel that they deserve the abuse or depend upon the abuser for financial support and are afraid to cut off contact. As a result, these women contact the abuser to either see them on occasion or have the abuser move back home against the terms and conditions of the orders of protection. That is a bad idea indeed!

More frequently than one would expect, the courts do find out about the violation of the order of protection. Generally, this happens in one of two ways. Firstly, since people who commmit acts of domestic violence generally present a wide array of anomalous personality disorders such as anger control deficit and poor self image, the same factors that precipitated the first act of domestic violence will often precipitate additional acts of domestic violence. In this regard, it should be noted that as a general rule, subsequent acts of domestic violence generally escalate in frequency and intensity. The second common way that violators of the order of protection get caught is when an A.C.S. worker interviews the children and finds out that daddy has been visiting them or sleeping at the marital abode notwithstanding the order of protection.

If the court finds out about the violation of the order of protection, the defendant is charged with new charges of criminal contempt of court, charged as either a misdemeanor or a felony pursuant to sections 215.50, 215.51 and 215.52 of the Penal Law. This creates a real problem. Instead of one case that can frequently be resolved with little or no permanent damage to the defendant, the alleged abuser now faces two charges and a court that will always be rather angry that the domestic violence defendant allegedly violated the court's order. Not a pleasant kettle of fish, for sure. Those defendants who are contemplating public service jobs will have a problem with a criminal contempt conviction. A person seeking a career as an attorneys will probably not find the Committee on Character and Fitness very sympathetic to an incident of domestic violence or criminal contempt in his past, even if the charges were dismissed.

Unfortunately, as much as I tell my domestic violence defendants to obey the orders of protection, I suspect that perhaps half of them ignore this no-brainer advice. Getting caught means new charges of criminal contempt in addition to what other charges may be brought as a result of the new incident.

The lesson is quite clear. If you are violating an order of protection issued in a domestic violence matter, stop immediately. Be smart and exercise restraint. You will then be able to obtain the best possible disposition of your case in the least possible amount of time and as cheaply as possible under the specific facts and circumstances of your case..

Sale of Illegal cigarettes and improperly licensed alcohol

Stephan J. Siegel — Fri, 04 Nov 2011 19:39:00 GMT

Two great revenue raisers enthusiastically endorsed by Mayor Michael Bloomberg are vigorously prosecuting and fining those accused of violating the rules and regulations dealing with the sale of cigarettes and alcohol, especially beer. While I have no doubt that a collateral purpose of this enforcement is to prevent the sale of cigarettes and alcohol to minors, I will bet you dollars to doughnuts that an even more important function is to help fill the empty coffers of our great city.

These cases are vigorously prosecuted and generally start with an undercover police officer or agent of the Alcohol Control Board (A.C.B.) going to an establishment, pretending to be under the legal age and purchasing either cigarettes or beer or an undercover agent purchasing either untaxed cigarettes or occasionally untaxed liquor. Usually, there are at least three or more undercover incidents involved. An even more serious crime occurs when the shopkeeper sells cigarettes with phony tax stamps on the bottom of the pack or if the amount of cigarettes sold exceeds $20,000.00. In either case, an additional "E" felony charge can be brought in addition to the misdemeanor charges. That enables the enforcement agency to claim there is a persistent pattern that can only be remedied by closing down the establishment.

After the undercover sales, police go to the establishment and frequently close the establishment by padlocking the entrance. At the same time, they serve an order to show cause returnable in State Supreme Court demanding that the respondent show cause why the establishment should not be permanently closed or (if you are lucky) why you should not be permanently prevented from selling liquor or cigarettes. Here in Queens, the summonses are returnable at the General Courthouse at 88-11 Sutphin Boulevard before the Honorable Orin R. Kitzes.

The potential penalties are draconian in scope and size. You cannot go there alone. If you do, you will almost certainly end up paying significantly larger fines than necessary. The better approach is to hire a lawyer who is familiar with these matters. He (or she) will negotiate a penalty that is significantly less than you would otherwise pay, even considering the legal fees that will be required. Additionally, if your establishment was closed (as often happens) your lawyer will be able to get you back in business sooner than you would be able to do by yourself. Sometimes, with the juxtaposition of divine providence and favorable facts, he can even prevail and show that the allegations were incorrect.

While I hope that you are never on the receiving end of such a summons, if you are, make sure that you hire a lawyer to protect your rights. Good luck!

Fire Department Violations

Stephan J. Siegel — Fri, 04 Nov 2011 19:21:00 GMT

When I first started practicing law, neither I nor any other lawyer plying the halls of the criminal courts of New York City ever heard of fire department summonses. Well, that is not exactly accurate. Although we all knew they existed, we never actually represented any clients who received them.

Except for really serious safety problems that were a threat to life, there were very few summonses issued for violations of the fire codes. Rather, what used to happen was that when the fire inspectors found a violation, they told you that they would be back in a week or two to make sure that you had properly taken care of the problem. And the citizenry complied with the code.

That was before the great financial crisis and our electing one of the richest men in America as our mayor. Michael Bloomberg is a brilliant business man above all else. He knows how to make money. He is an extremely efficient administrator and a brilliant delegator. That is why he worth about twenty billion dollars. For better or worse, Mayor Bloomberg runs his mayoralty as a business and he appears to be rather out of touch with the life of a normal middle class (or poor or even regular rich) person. To help resolve the city's massive financial problems, he has taken advantage of every possible path to promote and raise revenues. Unfortunately, he occasionally forgets that most of us cannot afford to shell out as much money as he tries to exact from us. Also, he seems to forget that there are places other than Manhattan in New York City. Oh well.

Back to fire summonses. If you receive a fire summons or a building safety violation, you should hire a lawyer who handles these matters. It will almost always be worth the price. while the default penalties for these violations are generally astronomical, a lawyer will generally be able to negotiate a fine that is significantly less than the maximum, even considering the money you have to pay to the lawyer.

While I hope that you never receive such a summonses, if you do receive one, I suggest that you hire a lawyer to minimize the amount of money you will have to fork over to Mayor Mike. Good luck!

Anwar al-Awlaki and the ethics of killing American citizens without a trial

Stephan J. Siegel — Mon, 10 Oct 2011 23:10:00 GMT

Just as all loyal Americans rejoiced at the elimination of Osama bin Laden, it is clear that few tears were shed when Anwar al-Awlaki, the charismatic Muslim preacher who spread his poisonous message of hatred of all things American and who became an operational leader of the Arabian peninsula branch of Al Quaeda,was killed.

While we do not know the full extent of his terrorist acts, we do know that he was instrumental in implementing attacks on Americans here and across the middle east from Afghanistan to Yemen. Awlaki is the exception to my rule of regret when people are killed. I am glad that he is dead and I hope that his colleagues join him and Osama bin Laden in Hell real soon.

Nevertheless, as a lawyer I note that there are interesting issues raised by his killing. Specifically, is it justifiable to kill an American citizen without a trial.

A principle of Jewish jurisprudence enunciated in the Bible is that it is an affirmative obligation to kill a person who seeks to kill others without legal justification. This right of self-defense was adopted by New York as well as by the federal government and every state in the nation. Article 35 of the New York State Penal Law sets forth the defense of justification and authorizes the use of deadly physical force to prevent serious physical injury to either the actor or a third party threatened by an attacker.

Seen in this light, a man such as Anwar al Awlaki who intentionally targeted innocent women and children falls into the category of a person who we must defend against. While it is unclear if he was on the way to an act of murder and mayhem when he was killed, it is clear that he constantly involved himself in the operational side of Al Quaeda with respect to planning attacks against American citizens here and abroad. His actions were directly responsible for killing and maiming American citizens and destroying millions of dollars of American property as well as being an integral element of the national need to spend billions of dollars fighting wars in Iraq, Afghanistan and here at home.

Liberals may call it murder or assassination. Nevertheless, at the end of the day,his death may save hundreds or even thousands of American lives as well as the lives of many Muslims who might otherwise kill themselves in an act of suicide bombing murder or be killed in a fight against us or our allies. The fact that Awlaki had to be killed without a trial presented a problem for President Obama. To his credit, Obama took a courageous stand and ordered that Awlaki be killed. It was determined by numerous governmental agencies that it would be virtually impossible to capture him and prosecute him in a court of law. The only viable option was to kill him, which was done in a drone attack last week. May G-d bless America and continue to give our president the wisdom to act in the best interests of our great nation!

Enterprise corruption and identity theft in Queens County, New York

Stephan J. Siegel — Wed, 05 Oct 2011 23:40:00 GMT

A friend and colleague called me yesterday morning and told me that Justice Buchter needed me in his part to represent a defendant. He explained that Justice Buchter had requested the services of lawyers authorized to accept court appointments as there were 109 defendants who needed to be represented by lawyers who were certified to handle serious felonies in one of the largest cases ever prosecuted in Queens County in terms of the number of defendants.

When I got out of the elevator on the third floor of the Queens Supreme Court, I was greeted by the senior photographer from the New York Post. Ellis Kaplan is a great photographer even if he does consistently refuse to take a picture of me in the court room, although he has shot numerous of my more infamous clients while conveniently cropping me out of the picture. True to form, he did not take a picture of me in the process. He did tell me that he was quite happy with the purchase of a Canon 7D that I constantly raved about after he initially recommended it to me.

When I arrived in the courtroom, I was pleased to see that sitting in the first row were most of the better lawyers in the county. A place was made for me, I sat down and asked what was happening They told me that the district attorney decided to try and arrest all identity theft with respect to credit cards in Queens by making an enterprise corruption case out against about 109 defendants. The defendants were charged with various permutations of identity theft, aggravated identity theft, unlawful possession of personal identification information and different grades of larceny.

The multiple indictments alleged that under the leadership of about four or five of the defendants, a scheme was hatched whereby bank employees would steal identity information from customers and give the information to others who would manufacture credit cards that were used by "shoppers" who would either make A.T.M. withdrawals or buy articles that could be readily sold. Other defendants operated "skimmers," machines that would read the magnetic credit card information when the cards were used for legitimate purchases. Unusually high bail was asked for under the watchful eyes of the fifth estate which was granted for the most part.

As we chatted I realized that the case was nowhere near the 458 count indictment that I obtained an acquittal on after a nineteen month trial about twenty five years agowhen I served as a public defender in Queens before obtaining an acquittal as a public defender twenty five years ago. Nevertheless, it promised to be an interesting case. Based upon comments made by the prosecutors, I suspect that significantly fewer than 109 defendants will ultimately be convicted. Only time will tell.

Battered Wife Syndrome as a defense to murder: the Barbara Sheehan trial

Stephan J. Siegel — Wed, 21 Sep 2011 20:01:00 GMT

During the last two weeks or so, every day that I have gone to handle my complement of murder cases before Chief Homicide Judge Gregory L. Lasak, I am greeted by famous New York Post photographer Ellis Kaplan who is camped out on the third floor of the Queens Supreme Court to digitally capture forever the dramatis personae of the Barbara Sheehan murder trial presently pending before Justice Richard Buchter.

For those unfamiliar with the case, Ms. Sheehan admitted to shooting her husband Raymond eleven times after having allegedly suffered intimate partner violence at the hands of her deceased former N.Y.P.D. sergeant husband. Unfortunately, I have been extremely busy recently so I have been unable to watch what must be better courtroom drama than Perry Mason in the match between defense lawyer Michael Dowd and prosecutor Debra Pomidor. While neither lawyer is especially low key, they are both colorful and skilled advocates. Justice Barry Kron, a legal scholar with a a dry and sometimes sardonic wit is the perfect judge to keep both lawyers in line in terms of his "take no nonsense" attitude. Nevertheless, both sides can be confident in the knowledge that they will receive a fair trial.

The prosecution contends that Ms. Sheehan cold-bloodedly executed her husband. The defense contends that after many years of being the recipient of violent spousal abuse, she believed that her husband was going to shot her and she acted first to defend herself by shooting him eleven times with two different handguns.

The interesting issue is whether or not the defense will fly based upon the eleven shoots she fired into his body from the two guns. While I will not make any predictions, I note that psychologically, it is not necessarily inconsistent for a battered wife defense to be viable even when there were eleven shoots from two different guns. In fact, it makes sense. While I cannot justify the actions of Ms. Sheehan under any circumstances, I can understand them to a certain extent.

Classically, the domestic violence battered wife syndrome defense involves a reaction to a long time pattern of abusive behavior over many years. The abuse may be physical or psychological or both. Having represented many spouses who were either accused of domestic violence as the primary instigator or as a recipient responding to long time abuse, I have seen that when a long suffering recipient of spousal or other domestic violence finally reacts and strikes back, the reaction is horrific in its intensity and ferocity. Having suffered for many years, the injured party wants to inflict infinite eternal suffering on his or her former torturer and generally will do so in an exaggerated fashion.

While I cannot predict the outcome of this particular trial, the defense is real and manifests an inappropriate but psychologically reasonable reaction to an unreasonable situation.