New DWI Felony

It is now a class “E” felony to drive while intoxicated (DWI) with a child 15 years of age or younger in the car.  In addition, if the defendant is the parent, legal guardian, or custodian of the child in the vehicle, the police MUST file a report with Child Protective Services (CPS). 

Also, in Westchester County and other surrounding counties such as Rockland, Putnam, Dutchess, Orange and the Bronx it is common to see an additional charge of Endangering the Welfare of a Child (EWC) for such a DWI arrest. 

This new felony change and the usual accompanying EWC charge are common and place a burden on the defendant not only with respect to a criminal charge but also for school, employment and special licenses in addition to the penalties for DWI.  It is common to have to address most of these penalties even before one is found guilty.   Prompt legal representation is very important to address these issues to aggressively present the best defense.

Ignition Interlock Device — New Law

Beginning on August 15, 2010, courts will be required to sentence defendants after conviction for a DWI offense to probation or a conditional discharge a condition of which MUST be the installation and maintenance of an ignition interlock device in any car owned or operated by the defendant for the duration of the probation or conditional discharge or 6 months, whichever is longer.

The cost of the installation and maintenance must be paid by the defendant unless the court finds that the person is financially unable to afford the cost in such cases the court may waive the cost or impose the cost pursuant to a payment plan.

DWI Law Updates

For more information about the DWI law changes or DWI laws in New York State in general feel free to contact our firm.  We appear in all courts in New York including Westchester, Putnam, Dutchess, Orange, Rockland and New York City.

Criminal matters in New York State are governed by a statute of limitations.  The time within which a criminal action may be brought is the statute of limitations.  Most of the time the statute of limitations refers to the time allowed to bring a civil action however, the similar legal theory also applies to the prosecution of a criminal offense. 

Generally the more serious the crime the longer the prosecution has to bring the charges.  In the case of Class A felonies, such as Murder, there is no limitation on when the action may be commenced.

STATUTE OF LIMITATIONS

• Class A Felony — No time limit, CPL 30.10(2)(a)
• Other Felonies — 5 years, CPL 30.10(2)(b)
• Misdemeanor — 2 years, CPL 30.10(2)(c)
• Violations — 1 year, CPL 30.10(2)(d)

Generally after a crime is committed charges must be filed within the above time frames. CPL 1.20(17)

Speedy Trial

Usually in a criminal matter charges are filed with the Court almost immediately.  However, an accused has a right to a speedy trial once the charges are filed with the Court.  The United States Constitution (6th Amendment) and by law in New York State require a speedy trial.  The laws governing speedy trial are some of the most complex in all criminal law however this overview should give you a good understanding of the speedy trial laws in New York State. 

These laws are litigated in every county including Westchester County, Orange County, Putnam, Rockland and Dutchess County.  In local criminal courts such as White Plains City Court, County Court, Yonkers, Greenburgh, Bedford, North Castle, Mount Vernon, Newburgh, Goshen, New Windsor, Southeast, Kent and other similar Courts all keep records of speedy trial time.   

The right to a speedy trial is broken down into two areas a Constitutional Speedy Trial Right and a Statutory Speedy Trial Right.

Constitutional Speedy Trial

The constitutional speedy trial looks to the length of time between the commencement of the action against the defendant and the commencement of trial.  A due process argument may be made if an inordinate amount of delay has occurred between stages in a criminal matter such as between commission of the offense and arrest.  This applies to all offenses.

To usually obtain dismissal of a criminal matter on constitutional speedy trial grounds in New York State any argument must include a showing that the accused has been prejudiced by the prosecutions failure to prosecute the charge in question.  If the delay is significant (usually a number of years) prejudice need not be shown unless there was justification for the delay (People v Guzman, 227 AD2d 219).

The Court will consider five factors to determine dismissal on Constitional speedy trial grounds.  Those factors include:

1. The length of the delay
2. The reason for the delay
3. The degree of actual prejudice to the defendant
4.  The seriousness of the underlying charge
5. the extent of any pretrial incarceration

See, People v Taranovich 37 NY2d 442 and People v Vernace 96 NY 2d 886

Statutory Speedy Trial under CPL 30.30

CPL 30.30 the speedy trial statute requires the People announce their readiness for trial within a certain amount of time after the action has been commenced against the defendant.  The important dates are the date of the commencement of the action and the date on which the prosecution announces readiness for trial.

The trial does not actually have to begin but if the people do not or can not announce readiness the case will be dismissed as a violation of the statutory speedy trial law.

CPL 30.30 —  Time restrictions

• Felony — 6 months
• A Misdemeanor — 90 Days
• B Misdemeanor — 60 Days
• Violation — 30 days
• Traffic Infraction — N/A

There are excludable periods of time that will stop the speedy trial clock and the prosecution will not be charged with the delay.  Some of the excludable time includes:

• Reasonable period of delay attributable to other proceedingsconcerning the defendant such as a competency proceeding, demands to produce, pre-trial motions, appeals. 
• Adjournments at the request of the defendant or consented to by the defendant.

• The defendant is absent or unavailable, such as a bench warrant or in jail in another jurisdiction.

• Time that the defendant is without counsel.

The Best Speedy Trial Defense

The best speedy trial defense involves a calculation of time starting with the date of the alleged crime itself and determining what time is chargeable to the prosecution as a violation of either statutory or due process rights.

Some cases may be dismissed in court others require a written motion.  A clear understanding of the various time periods is required.

All felonies in New York State must be charged by either a Felony Complaint, Indictment or a Superior Court Information (SCI).  In Westchester County, Rockland, Orange, Putnam and Dutchess Counties it is common to see a felony charged by way of a Felony Complaint.  However, in New York City, Bronx, Queens and Brooklyn Felony Complaints are rare. 

FELONY

First, some basic information about Felony Charges.  A Felony is a charge that can result in State Prison upon conviction usually over one year.  In New York State felonies are the most serious crimes.  Felonies are classified from the most serious “A” felonies to the less serious “E” felonies.   All felonies have the potential for a state prison sentence and are generally more complex then lesser crimes.

Accusatory Instrument

An “Accusatory Instrument” is the generic term that describes a variety of documents used to accuse a person of a crime.  A Felony Complaint, Indictment and Superior Court Information are all “Accusatory Instruments”.  The Accusatory Instrument sets forth the crime charged and in most cases the facts supporting the crimes charged.

Felony Complaint

A felony complaint serves as the basis for the commencement of a criminal action, but NOT as the basis for a prosecution.  CPL 100.10 and CPL 1.20.  Basically, a Felony Complaint can start a case but not finish it.  In order for the case to be brought to trial an Indictment or Superior Court Information is necessary.

In Westchester County, Putnam, Dutchess, Rockland and Orange counties in a local justice court such as Bedford, White Plains City Court, Greenburgh, Yonkers, North Castle, Port Chester in Westchester County a Felony Complaint will be filed by the police and the District Attorney.  When an accused appears in those courts or any justice court a felony complaint will charge a felony.  If an accused appears in County Court such as White Plains, Westchester County Court at 111 Dr. Martin Luther King Jr. Blvd. or in Goshen, New York in Orange County Court 255-285 Main Street a felony charge is usually prosecuted by way of an Indictment or Superior Court Information.

Indictment

An indictment occurs only after a grand jury has voted to prosecute a charge(s) against an accused.  The Grand Jury Process will be discussed in another blog but for these purposes the point is that a felony must be prosecuted by way of indictment after a grand jury vote.

Superior Court Information

A Superior Court Information (SCI) is an instrument that a prosecutor can use to charge a felony but only if the accused waives their right to a Grand Jury.  An SCI is usually a accusatory instrument filed by the District Attorney during a plea bargain on a felony charge in County Court.  As part of that plea bargain the accused must agree to waive prosecution by Indictment and therefore a Grand Jury presentation.  Since this is a plea bargain it is usually agreed to prior to Court.

Speedy Trial and Discovery Concerns

Since a Felony Complaint is not a trial instrument, a prosecutor in local court can not announce readiness for trial under CPL 30.30.  Such and announcement would be illusory.  Readiness for trial on a felony charge requires an indictment.

Where a felony is charged in local court the accused is arraigned on the felony and arraigned on the felony again after an indictment.  Once the arraignment after indictment defense counsel will be able to obtain discovery, a bill of particulars, engage in motion practice and assert certain defenses.

Best Felony Defense

The best defense on any felony charge is to get as much information from the prosecution as possible before an indictment.  By way of policy several District Attorney Offices are less willing to negotiate with an accused after an indictment.  This is true in Westchester County, Putnam, Dutchess, Rockland and Orange Counties.  Of course, every case is different but the main concern is to avoid indictment if possible since the penalties are much more severe than a charge of a misdemeanor or violation.  Also, an accused does have the right to testify at a grand jury presentation and in some cases this is absolutely essential.

If an Indictment has already been handed down without a felony complaint it is very important to obtain all of the discovery in the case quickly and review the file with the accused to determine the best defense.  Afterwards, the criminal defense attorney should immediately contact the district attorney to determine their position on the case, and get any more information not obtained in discovery to determine the strength of the prosecutions case.  Only then can accused make an informed decision regarding how to proceed.  Lastly, it is absolutely essential that the accused and their attorney keep in contact with each other on a regular basis.

I hope this information has proven helpful.  The differences between Felony Complaint, Indictment and Superior Court Information (SCI) are important and should be reviewed carefully since there are so many different consequences at each level.

A second DWI charge within 10 years could be prosecuted as a felony.  This felony prosecution is discretionary unlike a predicate felony — second felony offender, that the prosecution must pursue.

Both predicate felony offender status and felony DWI invlove a conviction within 10 years. 

Predicate Felony

In calculating the time for a predicate felony, the law states that “sentencemust have been imposed more than 10 years before the commission of the felony” PL 70.06(1)(b)(iv). 

Felony DWI Law

The felony DWI statute refers to committing the new offense “after having been convicted of” the predicate crime.  VTL 1193(1)(c)(i).

This is an important distinction.  It is very important in either a DWI felony sitiuation or a Felony under the Penal Law to know this difference.

A “conviction” is defined in the Criminal Procedure Law (CPL) as “the entry of a plea of guilty to, or a verdict of guilty upon an accusatory instrument” CPL 1.20(13).  A judgment is the conviction AND the sentence imposed.  Sometimes in criminal court the conviction will be months before the sentence.  Usually this occurs when the Court orders a pre-sentence report from the Department of Probation.

Felony DWI Example

Where a motorist was sentencedon the prior DWI and occurred within the 10 year limit, but the motorist plead guilty or was convicted at trial more than10 years ago, felony DWI status should not apply.  Therefore, where sentencing is adjourned this time delay should not be used at a later point to increase a seconf felony DWI to a felony.

Misdemeanor DWI

In any DWI offense this rule will apply.  For example, two prior DWAIs within 10 years raises the current DWAI to a Misdemeanor from a violation.

Defense of a Felony DWI

In order to present the best criminal defense a criminal defense attorney in Westchester, Orange, Rockland, Putnam counties or elsewhere need to be aware of the date of arrest, conviction and sentence in order to properly defend a DWI felony charge.

District Attorneys have relied on certified records to introduce certain lab reports in DWI, DWAI, DWAI drugs and other drug cases instead of having the actual lab analyst testify.  This seems to be changing with the most recent US Supreme Court case as outlined below.

Lab Reports at Trial in DWI, DWAI, DWAI Drug  and Drug Cases

At trial for an offense involving any Laboratory Report (usually a drug, DWI or gun charge case) the confrontation clause of the sixth amendment requires a criminal accused to be confronted with the testimony of lab analysts.

The United States Supreme Court in Melendez-Diaz v Massachusetts, 129 S Ct 2527, held that a lab analyst’s certificate is testimonial and can not be admitted unless the analyst was unavailable to testify at trial and the accused had a prior opportunity to cross-examine the analyst.

DWI Blood/Breath Test Lab Reports

In Nassau County after a DWI trial the court sustained the defendant’s objection to the admission of the calibration log of the breathalyzer machine used to test his blood alcohol level as a certified business record and required the prosecution to present live testimony from the lab technicians who preformed the calibration.

The Best Criminal Defense

The best criminal defense is one that holds the government to their burden on each and every element of the crime.  This is especially true of DWI, DWAI, DWAI Drug and other Controlled Substance cases where a lab report is necessary.  In Westchester, Rockland, Bronx, Orange, Putnam and Dutchess counties the government will have their own report usually from the County Department of Lab and Research.  These lab reports must be attacked for their accuracy.  This additional requirement that the government bring the actual analyst into court is helpful to the experienced criminal defense attorney and the accused since it opens the door to in depth cross examination.

White Plains City Court Criminal Defense 

In the City Court of White Plains there has been an increase use by the department of labs and research in Westchester County of “preliminary” lab reports to support DWI, DWAI, DWAI Drug and other drug charges.  These lab reports are the very reports that need to be scrutinized for their accuracy and demanding the actual lab analyst to testify will help any criminal defense.

Southeast DWI Criminal Defense

Likewise, for any criminal defense for a DWI, DWAI, DWAI drug charge in busy DWI courts such as the Town of Southeast in Putnam County (Brewster).  These lab reports must be scrutinized as they usually are the prosecutions strongest form of evidence.

Leaving the scene of a PROPERTY damage accident without reporting

VTL 600(1) provides that ” Any person operating a motor vehicle who, knowing or having cause to know that damage has been caused to the real property or to the personal property … due to an incident involving the motor vehicle operated by such person shall, before leaving the place where the damage occurred, stop, exhibit his or her license and insurance identification card for such vehicle, … and give his or her name, residence, including street and number, insurance carrier … and license number to the party sustaining damage, or in case the person sustaining the damage is not present at the place where the damage occurred then he or she shall report the same as soon as physically able to the nearest police station, or judicial officer.”

A violation of VTL 600(1)(a) is a traffic infraction punishable by :

1. A fine of up to $250;

2. Up to 15 days in jail; or

3. Both

Leaving the scene of a PERSONAL INJURY accident without reporting

VTL 600(2)(a)  “Any person operating a motor vehicle who, knowing or having cause to know that personal injury has been caused to another person, due to an incident involving the motor vehicle operated by such person shall before leaving the place where the said personal injury occurred, stop, exhibit his or her license and insurance identification … to the injured party, if practical, and also to a police officer, or in the event that no police officer is in the vicinity of the place of said injury, then he or she shall report said incident as soon as physically able to the nearest police station or judicial officer.”

The level of the offense and the punishment depends upon if the mororist has ever committed this crime in the past and also the level of injury or death of the party.  Leaving the scene of a Personal Injury Accident is a CRIME and ranges from a class “B” misdemeanor to a class “D” felony.  The Sentences for Misdemeanors and felony range from fines, probation to jail.

Leaving the scene of a PERSONAL INJURY accident is a fingerprintable offense and a crime.  Any conviction will result in a license revocation and the motorist will not be permitted to obtain a conditional license.

In any criminal defense its important to know the classes of misdemeanors and the types of misdemeanor crimes including felonies.  Here in this case leaving the scene of a property damage accident is a noncriminal offense while leaving the scene of a personal injury accident is a crime.

If you have any questions how these charges are defended or how they relate to other charges such as driving while intoxicated (DWI) or driving while ability impaired (DWAI) contact my office for a free consultation.

In Westchester County Court (White Plains) a handgun was suppressed with the consent of the District Attorney due to an admitted illegal search of an automobile by the Rye City Police Department.  The two felony charges for possession of a weapon were dismissed after indictment.

Rye City Police Search of a Vehicle

In the City of Rye a motorist was stopped for making an illegal right turn on a red light (traffic infraction).  After the vehicle was stopped the driver was found to have a suspended driver’s license (VTL 511) and asked to exit the vehicle.  The driver was handcuffed, placed under arrest and seated in the rear of the officer’s police vehicle.  After the arrest the officer began the search of the client’s vehicle and discovered a gym bag next to the driver’s seat.  The officer opened the bag and found gym clothes and a loaded, defaced, handgun wrapped in a sweatshirt.  The defendant was arrested for Criminal Possession of a Weapon and Aggravated Unlicensed Operation of a Motor Vehicle (VTL 511).

The Illegal Search

After an investigation by criminal defense trial attorney, Andrew Proto it was determined that the police had no reasonable cause to search the vehicle.  There could be no safety concerns for the officer since the client was handcuffed in the back of the police vehicle.  The District Attorney claimed that the officer was simply inventorying the contents of the vehicle as the vehicle was about to be impounded and no illegal search was conducted.  However, the officer admitted that he had not searched the bag pursuant to an inventory search but for officer safety.

Motion to Dismiss the Criminal Possession of a Weapon Charge and to Suppress the Handgun

In the United States Supreme Court case of Arizona v Gant _ US_, WL 1045962 (2009), the Supreme Court overturned the search of defendant Gant’s car after he was arrested for driving with a suspended license, handcuffed and secured in the back of a police car.  Criminal Defense trial attorney Andrew Proto, argued the Rye City Case had the same facts as in Gant and any inventory search by the Rye City Police Department was an after thought by the police once the handgun was discovered. 

Suppression

Once the gun was suppressed on consent of the District Attorney the client was no longer facing a minimum five year sentence in state prison.  The best criminal defense is to aggressively defend serious charges such as criminal possession of a weapon and look for any violation of one’s constitutional rights.

The criminal defense trial attorneys at Riebling, Proto & Sachs, LLP regularly appear in the Courts of Westchester, Orange, Putnam, Dutchess and Rockland Counties.  If you or someone you know is facing a serious charge contact our office.  We look to every defense possible and pursue the best criminal defense to protect your rights.  We are always available for a FREE Consultation.

An order of protection may be granted in a number of different cases pursuant to various criminal and civil statutes, including Criminal Procedural Law sections 530.12(1) and 530.13(1); Articles 3, 4, 5, 6, 7, 8 and 10 of the Family Court Act; and Section 240(3) of the Domestic Relations Law.  Generally, orders of protection fall under two categories, temporary and permanent.  A temporary order of protection is typically made during the pendency of the action.  A permanent order of protection is usually issued at the conclusion or disposition of the case.  Frequently, temporary orders of protection precede permanent orders of protection.  

New York Law prohibits the extension of an order of protection to a person(s) unrelated to the underlying criminal action.  See People v. Konieczny, 2004 WL 1263762 (N.Y. 2004).  The order of protection may cover the complainant and family or household, but not beyond.  People v. Petrusch, 306 A.D.2d 889.

Orders of protection may also be issued in instances where the person being “protected” by the order opposes the terms of the order of protection and does not want the defendant being barred from contacting him or her.  People v. Monacelli, 299 A.D.2d 916.  This particular event often occurs in cases involving spouses and families. 

In criminal cases, an order of protection may be part of the court’s order allowing for the defendant release from custody.  CPL Sections 530.12 (family offenses) and CPL 530.13 (non-family offenses).  At times, a court may issue an order of protection on its own, based upon “good cause shown”, when an accusatory instrument (complaint) is filed by the prosecution.  In such an instance, the defendant has a right to contest the issuance of the order of protection in those circumstances where a constitutionally protected right, such as being excluded from the defendant’s residence or being prohibited from contacting the defendant’s family, is restricted.

Also, a court can suspend or revoke a pistol permit and possession of firearms.  A defendant has a right to hearing on the issue of firearms.  It should be noted that a violation of an order of protection due to firearm possession is also a violation of federal criminal law.

By understanding these important aspect of the law as they pertain to orders of protection, the criminal, matrimonial and family law (child custody, child support, family offense) trial attorneys of Riebling, Proto & Sachs, LLP continue to successfully assist their many clients.

If you or someone you know needs the assistant of a criminal, family or matrimonial attorney, please contact Riebling, Proto & Sachs, LLP for a free consultation.  The firms trial attorneys regularly appear in the courts of Westchester, Bronx, Rockland, Putnam, Dutchess and Orange Counties in New York State.

In defending those criminal charges, criminal trial attorney Riebling focused on demonstrating that his client did not engage in any actions which were criminal under the law.  All New York crimes, including felonies and misdemeanors have specific elements which need to be proven beyond a reasonable doubt.

The crime of Menacing in the Third Degree states:

“A person is guilty of Menacing in the Third Degree when, by physical menace, he or she intentionally places or attempts to place another person in fear of death, imminent serious physical injury or physical injury.” (PL § 120.15.)

The single most important factor in defending his client in the White Plains, New York Court was the lack of any “physical menace.”  In order to satisfy the physical menace element of this crime, it must be alleged that the defendant committed a physical act which, in and of itself, placed another person in fear of imminent injury.Words or threats are not enough to satisfy the requirement.A defendant may not be convicted of Menacing without evidence of this important element.

At the time of trial, the case was successfully resolved in favor of Attorney Riebling’s client.

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If you or someone you know has been arrested for a crime, misdemeanor or felony and needs a criminal defense lawyer in New York, please contact Stephen Riebling or any member of the firm for a free consultation. The firm’s criminal defense lawyers regularly appear in the courts of Westchester, Bronx, Rockland, Putman, Dutchess and Orange Counties.