This Article is the second in a series explaining how Westchester County, New York criminal defense attorneys defend individuals charged with Assault in the Westchester County Domestic Violence Part. In Part I of the Article, I provided an overview of the criminal charge of Assault in the Westchester County, New York Domestic Violence Court. This section of the Article will focus on the elements of misdemeanor assault.
Under New York State Penal Law Section 120.00, a person is guilty of Assault in the 3rd degree when:
1. With intent to cause physical injury to another person, he causes such injury to such person or to a third person; or
2. He recklessly causes physical injury to another person; or
3. With criminal negligence, he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.
Assault in the 3rd degree is a Class A misdemeanor.
Accordingly, in New York, intent to cause physical injury is not the only means by which a person may be convicted of Assault. Actions that are deemed reckless or criminally negligent are all subject to an Assault charge.
There are, of course, defenses to an Assault charge. The most common defense utilized is "justification". There are several examples of "justifiable force". For example, under Penal Law Section 35.05, physical force is justifiable under several scenarios including emergency situations to avoid an imminent public or private injury which is about to occur and in which the person using the physical force is not at fault for the situation having arisen. Penal Law Section 35.10 authorizes the use of physical force in several situations including self defense, defense of a third person, in defense of premises, to prevent a larceny or criminal mischief, or to effect an arrest or prevent the escape from custody.
As in most New York criminal defense cases, the series of events, the actions of the actors, and the exact circumstances giving rise to the incident are unique and must be thoroughly investigated and evaluated to determine if a defense exists, or indeed, if a crime was properly charged.
Tuesday, September 22, 2009
Thursday, September 3, 2009
Assault and Westchester Domestic Violence Court - Part 1: Overview
This article is the first in a series explaining the process by which Westchester County criminal lawyers defend matters in the Westchester County Domestic Violence Part. The article will focus on misdemeanor and felony assault charges, one of the most common criminal charges that are defended in the Westchester County Domestic Violence ("DV") Court.
Overview:
The Westchester County Domestic Violence Part hears criminal cases such as assault, menacing and harassment against a spouse, family member or significant other. These matters originate in local courts such as New Rochelle City Court or White Plains City Court. Criminal charges are filed and presented in these local courts in the same way that other misdemeanor and felony cases originate. Once charges are filed, the accused is arraigned in local court and bail, if any, is set. Criminal defense attorneys are usually advised that the case is expected to be transferred to the Domestic Violence Part. Accordingly, once the arraignment is concluded, an adjournment is sought to allow for the Transfer Order to issue. That process typically requires one to two weeks. At the next appearance, the Transfer Order is served on the accused and his/her criminal defense attorney and the matter is marked off the local court calendar. From that point, the matter will be heard in the DV Part.
Bail:
Bail is set by the local Court in misdemeanor criminal matters and some felony matters. The severity of the charges is unquestionably a factor in determining the amount of bail that will be set upon an accused. Accordingly, in an assault case, the severity of the alleged victim's injuries will commonly play a major role in determining bail. For a more thorough explanation of bail, please refer to the Just Arrested section of our website.
Temporary Orders of Protection:
In almost all cases, the District Attorney's Office will ask the Court to issue a Temporary Order of Protection barring the accused from having any contact with the alleged victim in the case. Such an Order is commonly referred to as a "Full Stay Away". In sum and substance, if the local Court issues the Order, the accused will be barred from having any contact with the alleged victim, whether in person, by telephone, email, text message, or otherwise. Similarly, the accused is ordered to refrain from having any third party communicate with the alleged victim on the accused's behalf.
The consequences of the issuance of a Temporary Order of Protection ("TOP") may be severe. For example, assume the accused is the spouse of the alleged victim and both parties reside in the same home. If a TOP is issued that includes a full "stay away" provision, the accused may not reside or visit the home until the TOP is lifted. This of course means that the accused will have to make arrangements to live elsewhere pending the outcome of the case.
The accused's relationship with his/her children may similarly be impacted. If the accused is charged with an assault that allegedly occurred in the presence of his children, it is common for the District Attorney's Office to request that the TOP include the children. By virtue of this type of Order, the accused will be prevented from residing with or visiting with his/her own children, subject to a modification issued by a Westchester County Family Court Judge.
The consequences of violating a Temporary Order of Protection are severe. It is important to note that the alleged victim's consent to communicating with or visiting with the accused is NOT legal cause to violate the TOP. Only a Judge can remove the stay away provision. If the accused violates the TOP, additional criminal charges (misdemeanor or felony Criminal Contempt) will issue and is overwhelmingly common for increased bail or remand status to be ordered by the Court.
Future articles will focus on the elements of assault, treatment programs often mandated by the Westchester County Domestic Violence Part, defense of the charges, and trial.
Overview:
The Westchester County Domestic Violence Part hears criminal cases such as assault, menacing and harassment against a spouse, family member or significant other. These matters originate in local courts such as New Rochelle City Court or White Plains City Court. Criminal charges are filed and presented in these local courts in the same way that other misdemeanor and felony cases originate. Once charges are filed, the accused is arraigned in local court and bail, if any, is set. Criminal defense attorneys are usually advised that the case is expected to be transferred to the Domestic Violence Part. Accordingly, once the arraignment is concluded, an adjournment is sought to allow for the Transfer Order to issue. That process typically requires one to two weeks. At the next appearance, the Transfer Order is served on the accused and his/her criminal defense attorney and the matter is marked off the local court calendar. From that point, the matter will be heard in the DV Part.
Bail:
Bail is set by the local Court in misdemeanor criminal matters and some felony matters. The severity of the charges is unquestionably a factor in determining the amount of bail that will be set upon an accused. Accordingly, in an assault case, the severity of the alleged victim's injuries will commonly play a major role in determining bail. For a more thorough explanation of bail, please refer to the Just Arrested section of our website.
Temporary Orders of Protection:
In almost all cases, the District Attorney's Office will ask the Court to issue a Temporary Order of Protection barring the accused from having any contact with the alleged victim in the case. Such an Order is commonly referred to as a "Full Stay Away". In sum and substance, if the local Court issues the Order, the accused will be barred from having any contact with the alleged victim, whether in person, by telephone, email, text message, or otherwise. Similarly, the accused is ordered to refrain from having any third party communicate with the alleged victim on the accused's behalf.
The consequences of the issuance of a Temporary Order of Protection ("TOP") may be severe. For example, assume the accused is the spouse of the alleged victim and both parties reside in the same home. If a TOP is issued that includes a full "stay away" provision, the accused may not reside or visit the home until the TOP is lifted. This of course means that the accused will have to make arrangements to live elsewhere pending the outcome of the case.
The accused's relationship with his/her children may similarly be impacted. If the accused is charged with an assault that allegedly occurred in the presence of his children, it is common for the District Attorney's Office to request that the TOP include the children. By virtue of this type of Order, the accused will be prevented from residing with or visiting with his/her own children, subject to a modification issued by a Westchester County Family Court Judge.
The consequences of violating a Temporary Order of Protection are severe. It is important to note that the alleged victim's consent to communicating with or visiting with the accused is NOT legal cause to violate the TOP. Only a Judge can remove the stay away provision. If the accused violates the TOP, additional criminal charges (misdemeanor or felony Criminal Contempt) will issue and is overwhelmingly common for increased bail or remand status to be ordered by the Court.
Future articles will focus on the elements of assault, treatment programs often mandated by the Westchester County Domestic Violence Part, defense of the charges, and trial.
Sunday, August 23, 2009
The DMV Refusal Hearing
You've been stopped by the police and suspected of Driving While Intoxicated (DWI) or Driving While Ability Impaired (DWAI). The police have now asked you to submit to a Chemical Test, usually a breathalyzer (blowing), urine or blood test to determine your Blood Alcohol Concentration (BAC). You have refused to take the test, been arrested and arraigned in Court. What happens next?
At arraignment, the Court advises the defendant and counsel of the date and time of the Refusal Hearing. The hearing must be conducted within 15 days of the date of arraignment. The Refusal Hearing is conducted at a local DMV office and presided over by a DMV Administrative Law Judge.
At the Refusal Hearing, the following four (4) issues are addressed:
1. Did the police officer have reasonable grounds to believe that the defendant had been driving under the influence or while his/her ability was impaired,
2. Did the police officer make a lawful arrest,
3. Was the defendant given sufficient warning, in clear or unequivocal language, prior to the refusal, that the refusal to submit to the chemical test would result in the immediate suspension and subsequent revocation of the defendant's license or privilege to operate a motor vehicle in New York.
4. Did the defendant, after reasonable grounds have been shown, following a lawful arrest, and following sufficient warning of the consequences, then refuse to submit to a chemical test.
Following the presentation of evidence and cross examination, the Administrative Law Judge may render an immediate decision or reserve decision. If the Administrative Law Judge determines that all four (4) issues have been affirmatively proven, the defendant's license or privilege to operate a motor vehicle in New York State will be immediately revoked for a period of either one (1) year or eighteen (18) months depending upon certain factors.
If the Administrative Law Judge determines that the evidence failed to establish ALL four (4) factors, the temporary suspension shall be immediately terminated.
A person in this position should always retain counsel for the Refusal Hearing. Often, there are one or more elements that a skilled Westchester criminal defense lawyer can attack in an effort to avoid the mandatory revocation.
At arraignment, the Court advises the defendant and counsel of the date and time of the Refusal Hearing. The hearing must be conducted within 15 days of the date of arraignment. The Refusal Hearing is conducted at a local DMV office and presided over by a DMV Administrative Law Judge.
At the Refusal Hearing, the following four (4) issues are addressed:
1. Did the police officer have reasonable grounds to believe that the defendant had been driving under the influence or while his/her ability was impaired,
2. Did the police officer make a lawful arrest,
3. Was the defendant given sufficient warning, in clear or unequivocal language, prior to the refusal, that the refusal to submit to the chemical test would result in the immediate suspension and subsequent revocation of the defendant's license or privilege to operate a motor vehicle in New York.
4. Did the defendant, after reasonable grounds have been shown, following a lawful arrest, and following sufficient warning of the consequences, then refuse to submit to a chemical test.
Following the presentation of evidence and cross examination, the Administrative Law Judge may render an immediate decision or reserve decision. If the Administrative Law Judge determines that all four (4) issues have been affirmatively proven, the defendant's license or privilege to operate a motor vehicle in New York State will be immediately revoked for a period of either one (1) year or eighteen (18) months depending upon certain factors.
If the Administrative Law Judge determines that the evidence failed to establish ALL four (4) factors, the temporary suspension shall be immediately terminated.
A person in this position should always retain counsel for the Refusal Hearing. Often, there are one or more elements that a skilled Westchester criminal defense lawyer can attack in an effort to avoid the mandatory revocation.
Tuesday, March 17, 2009
Arrested in Manhattan...It's Going to Be a While
I was recently retained by a person arrested in Manhattan at approximately 3:00AM Saturday morning. As a New York criminal defense attorney, I am used to delays in producing clients for an arraignment. But for the benefit of those of you not used to the delays, here is what to expect. New York County (Manhattan) experiences hundreds of arrests per day. On the day in question, there were over 415 arrests. Once arrested, a person is brought to the local police station. From there, if the person does not qualify for a desk appearance ticket, he will be brought to central booking, processed, and interviewed by a city agency for the purposes of making a bail or ROR recommendation. The police officer(s) making the arrest must speak with the Assistant District Attorneys in the complaint room to formulate the charges. The charges are then drafted and filed (docketed) with the Court Clerk. At that point, the case is ready to be called so long as the person is at the courthouse.
The point is that this is often a lengthy process and it is not uncommon for a person not be arraigned until the next day. In my case, my client was arraigned at 12:45AM Sunday morning (the court operates till 1:00AM). That's almost 24 hours from the time of the original arrest.
Be sure to seek the services of a qualified New York criminal defense attorney to lead you through the maze of arraignment in Manhattan.
Wednesday, March 4, 2009
The Consequences of Refusing to Submit to a Chemical Test (Refusing to Blow)
New York Criminal Defense Lawyer John Pettinella often represents clients who refuse to take a breath test or other chemical test in connection with a Driving While Intoxicated (VTL 1192.2, 1192.2a, or 1192.3 among others) or Driving While Ability Impaired (VTL 1192.1) charge. The machines often used are the Intoxilyzer in New York City or the DataMaster in Westchester County.
The question clients often ask is “What are the consequences of refusing to submit to the test”? In New York State, there are no criminal consequences, meaning you cannot be charged with a misdemeanor or felony for the refusal itself. There are, however, consequences to your pending Driving While Intoxicated or Driving While Ability Impaired case that result from a refusal.
Specifically:
1. The refusal can be introduced at trial as “consciousness of guilt evidence”.
2. Your license to drive or privilege to operate a motor vehicle in New York (if you are an out of state licensee) will be immediately suspended pending the prosecution of your case.
3. Pending a Refusal Hearing which is conducted at DMV offices, your license to drive may be separately revoked for a period of time irrespective of the outcome of your underlying DWI or DWAI case.
The arresting officer is required to properly warn a person of the consequences of refusing to submit to a chemical test. The chemical test itself is the result of either an onsite breath screening or following an arrest. If the person refuses, the Court is advised at the arraignment and the defendant’s license is immediately suspended pending a Refusal Hearing and/or the outcome of the case. The defendant is then advised of the Refusal Hearing date.
The issues surrounding a Refusal Hearing will be addressed in a separate article.
The above consequences beg the question, “Should I refuse to submit to the test or not”? This is a complex question that cannot be answered in a short article. As with all serious legal questions, you should contact a qualified New York Criminal Defense Attorney.
The question clients often ask is “What are the consequences of refusing to submit to the test”? In New York State, there are no criminal consequences, meaning you cannot be charged with a misdemeanor or felony for the refusal itself. There are, however, consequences to your pending Driving While Intoxicated or Driving While Ability Impaired case that result from a refusal.
Specifically:
1. The refusal can be introduced at trial as “consciousness of guilt evidence”.
2. Your license to drive or privilege to operate a motor vehicle in New York (if you are an out of state licensee) will be immediately suspended pending the prosecution of your case.
3. Pending a Refusal Hearing which is conducted at DMV offices, your license to drive may be separately revoked for a period of time irrespective of the outcome of your underlying DWI or DWAI case.
The arresting officer is required to properly warn a person of the consequences of refusing to submit to a chemical test. The chemical test itself is the result of either an onsite breath screening or following an arrest. If the person refuses, the Court is advised at the arraignment and the defendant’s license is immediately suspended pending a Refusal Hearing and/or the outcome of the case. The defendant is then advised of the Refusal Hearing date.
The issues surrounding a Refusal Hearing will be addressed in a separate article.
The above consequences beg the question, “Should I refuse to submit to the test or not”? This is a complex question that cannot be answered in a short article. As with all serious legal questions, you should contact a qualified New York Criminal Defense Attorney.
Tuesday, February 10, 2009
Yonkers City Court
The Yonkers City Court, Criminal Division, hears misdemeanor and pre-indictment felony cases originating within the City of Yonkers as well as moving violation and parking ticket matters.
The Court is located at: 100 South Broadway
Yonkers, NY 10701
The Court may be reached at: (914) 377-6326
Yearly statistics show that Yonkers City Court is one of the busiest criminal courts in Westchester County. The Court hears a multitude of DWI and DWAI cases, Petit Larceny and Grand Larceny (pre-indictment), drug possession and weapons possesion matters, as well as VTL 511 cases (Aggravated Unlicensed Operation of a Motor Vehicle).
As a Westchester County criminal attorney, I have handled numerous matters in Yonkers City Court ranging from Criminal Mischief to Assault. This Court, as I indicated, has a very busy calendar and the process can be confusing to someone unfamiliar with the criminal justice process. Be sure to contact a qualified criminal attorney to handle your matter.
For directions and transportation information to Yonkers City Court, click here.
For a Mapquest Map of Yonkers City Court, click here.
Monday, January 12, 2009
What is a Desk Appearance Ticket
A Desk Appearance Ticket is a directive or order issued by the police requiring the accused to appear in Criminal Court to answer a charge to be filed against the accused. A Desk Appearance Ticket is sometimes referred to as a DAT or as an Appearance Ticket.
Technically speaking, Desk Appearance Tickets can be issued for Violations, such as disorderly conduct, Misdemeanor offenses, such as Petit Larceny, or even certain "low level" Felonies. However, the majority of DAT's are given for violations and misdemeanors.
As a New York City and Westchester County criminal defense attorney, I have been handled numerous cases where a Desk Appearance Ticket was issued for both violations and misdemeanor offenses. Petit Larceny charges are some of the most common.
An accused receives a Desk Appearance Ticket following arrest. The DAT will typically list the charge and the date and time for the accused to appear in Court. Remember, this is an arrest, not a traffic ticket. You must appear on the date and time, preferably with your criminal defense lawyer.
At your Court appearance, the standard procedure is for the accused to be arraigned. There are instances, however, when the charges are not "ready" and the matter is adjourned for another day.
Technically speaking, Desk Appearance Tickets can be issued for Violations, such as disorderly conduct, Misdemeanor offenses, such as Petit Larceny, or even certain "low level" Felonies. However, the majority of DAT's are given for violations and misdemeanors.
As a New York City and Westchester County criminal defense attorney, I have been handled numerous cases where a Desk Appearance Ticket was issued for both violations and misdemeanor offenses. Petit Larceny charges are some of the most common.
An accused receives a Desk Appearance Ticket following arrest. The DAT will typically list the charge and the date and time for the accused to appear in Court. Remember, this is an arrest, not a traffic ticket. You must appear on the date and time, preferably with your criminal defense lawyer.
At your Court appearance, the standard procedure is for the accused to be arraigned. There are instances, however, when the charges are not "ready" and the matter is adjourned for another day.
Tuesday, January 6, 2009
White Plains City Court
The White Plains City Court is located at 77 South Lexington Avenue, White Plains, NY 10601. This Court handles misdemeanor criminal charges originating within the City of White Plains. They also have jurisdiction to arraign defendants charged with felonies originating within the City of White Plains. Additionally, the Court handles certain civil matters and traffic matters.
As the Criminal Court for the City of White Plains, a multitude of criminal charges are heard by this Court including, but not limited to, DWI, DWAI, False Personation, Criminal Posession of a Controlled Substance, Petit Larceny, Assault, VTL 511 charges, Criminal Mischief, and Disorderly Conduct to name a few. In my experience as a White Plains criminal defense lawyer, I have found this Court to maintain a busy calendar and it is not uncommon for the Court to hear fifty or more criminal cases each day.
The Court is accessible via both Metro North and the Bee Line Bus System. There is limited meter parking available however, visitors to the Court may park in the Supreme Court parking lot and Galleria Mall parking lot located next to the Court.
The Court may be reached at (914) 824-5675.
As the Criminal Court for the City of White Plains, a multitude of criminal charges are heard by this Court including, but not limited to, DWI, DWAI, False Personation, Criminal Posession of a Controlled Substance, Petit Larceny, Assault, VTL 511 charges, Criminal Mischief, and Disorderly Conduct to name a few. In my experience as a White Plains criminal defense lawyer, I have found this Court to maintain a busy calendar and it is not uncommon for the Court to hear fifty or more criminal cases each day.
The Court is accessible via both Metro North and the Bee Line Bus System. There is limited meter parking available however, visitors to the Court may park in the Supreme Court parking lot and Galleria Mall parking lot located next to the Court.
The Court may be reached at (914) 824-5675.
Monday, January 5, 2009
The Role of TASC in your Case
There are several Westchester Criminal Defense cases where the Court will order a TASC evaluation of a criminal defendant. TASC stands for Treatment Alternatives for Safer Communities and is a Westchester County sponsored program that provides primary assessment, monitoring and supervision in certain cases. Typically TASC will be assigned to defendants accused of DWI DUI, criminal possession of a controlled substance, certain domestic violence related charges and a variety of other misdemeanor and criminal charges. Once a person is evaluated, a decision is made by the TASC program whether to recommend treatment. The treatment regime recommended can be as minor as a series of educational classes or as intensive as a year long program.
TASC can play a major role in a Westchester County criminal defense case. A defendant's compliance with the TASC directives is often considered by the District Attorney's Office when making disposition offers and is also considered by judges for bail and sentencing purposes.
DWI DUI and Criminal Possession of a Controlled Substance (CPCS) charges are two areas where TASC is often involved. However, a defendant may be given the option of selecting a different organization for evaluation and treatment and simply have TASC monitor the defendant's progress. Ask your Westchester Criminal Defense Lawyer what your options are in these cases.
TASC can play a major role in a Westchester County criminal defense case. A defendant's compliance with the TASC directives is often considered by the District Attorney's Office when making disposition offers and is also considered by judges for bail and sentencing purposes.
DWI DUI and Criminal Possession of a Controlled Substance (CPCS) charges are two areas where TASC is often involved. However, a defendant may be given the option of selecting a different organization for evaluation and treatment and simply have TASC monitor the defendant's progress. Ask your Westchester Criminal Defense Lawyer what your options are in these cases.
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