The blog can now be found here:

http://www.storobinspodek.com/criminaldefenseguide/

Thank you for your time.

Sincerely,

Todd A. Spodek, Esq.

Storobin & Spodek, LLP

A person is guilty of course of sexual conduct against a child in the first degree when, over a period of time not less than three months in duration, he or she engages in two or more acts of sexual conduct, which includes at least one-act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact, with a child not less 11 years old.

FIRST ELEMENT

The first element that the Jury/Judge would need to find would be that the defendant, engaged in two (2)  or more acts of sexual conduct:

which included at least one (1)  act of sexual intercourse, deviate sexual intercourse or aggravated sexual contact to the victim.

So we need two (2) acts of sexual conduct, and at a minimum one of those acts has to be either:

• sexual intercourse
• deviate sexual intercourse or
• aggravated sexual contact.

We now again turn to the Penal Law to examine the statutory definitions of those terms

Sexual Conduct is defined as sexual intercourse, deviate sexual intercourse and sexual contact.

Sexual Intercourse has the ordinary meaning that everyone knows it to mean. However, under the Law, any penetration is sufficient.

Deviate Sexual Intercourse means sexual contact between two people, who are not married, consisting of either contact between the :

• penis and the anus
• mouth and the penis
• mouth and the vulva

Sexual Contact is defined as any touching of the intimate (private) parts of another person. The two people can not be married. The touching has to be for the purpose of gratifying the sexual desire of other party. This can be the offeender touching the victim, or the victim touching the offender.  The touching can be skin to skin or through clothing.

Aggravated Sexual Contact – Inserting a foreign object into vagina, urethra, penis or rectum of a child and causing physical injury to child. This inserting can not be done for a valid medical purpose.

SECOND ELEMENT

That the Defendant intentionally engaged in these two or more acts of sexual conduct. Intentionally means that the defendants conscious objective was to cause the result, or to engage in the conduct. This is proven by the facts and circumstances leading up to, surrounding and following the events in question.

THIRD ELEMENT

The time period where the two (2) acts of sexual conduct over a period of time not less than three (3) months. The time period that these events took place has to be at a minimum three (3)  months long.

FOURTH ELEMENT

That the victim/child was less than 11 years old on the date of the acts charged.  The defendant does not need to know the age of the victim at the time of the offense – it does not matter what age the defendant though the victim was.  The victim just has to be under 11  at the time the acts were committed.

DIFFERENCE BETWEEN THE FIRST DEGREE AND SECOND DEGREE

The difference between the first degree crime, and the second degree crime is that the first degree crime requires that one of the acts of sexual conduct be either:

• sexual intercourse
• criminal sexual act
• aggravated sexual contact

The second degree crime just requires two or more acts of sexual conduct.

The first degree crime is a B Felony, whereas the second degree crime is D Felony.

Todd A. Spodek is a Partner at Storobin & Spodek, LLP a Criminal Defense law firm in New York.

There are two types of weight classifications in Article 220. There is “pure weight” and then there is “aggregate weight.”  The term pure weight refers to the actual weight of the substance. This calculation is notwithstanding any additives to the substances.  The term aggregate weight is the total weight of the drug itself with any other additives that is included in the substance.

Example: 5 ounces of Cocaine might be 2 ounces pure cocaine, and 3 ounces of additives. Thus this package has a pure weight of 2 ounces cocaine, and an aggregate weight of 5 ounce.

The pure weight would be determined by Police chemists. They would determine the purity of the drug. This number would then be multiplied by the gross weight to get the total pure weight. Whereas for aggregate weight, they would just measure the entire substance without any of the packaging.

The meeting generally takes place at the ADA’s office and depending on the nature of the crime there will be various additional people from the DA’s office there. There could be Detectives, senior or junior District Attorneys, computer experts, forensic accounting people, etc.

A proffer is set up when a Defendant believes that he/she would get a favorable plea deal from the ADA if he/she proffer’s information to them. This information could lead them to new arrests, drugs, weapons, search warrants, etc. Further the Defendant might be willing to cooperate with the DA’s office as a Confidential Informant (“CI”.) The DA’s office will not always be open to setting up a proffer sessions. In certain cases, they feel that they have nothing to gain from you coming in. They might have an air tight case against you, or the information you can provide to them is so limited that it does them no good.

Generally before a proffer is set up, the defense attorney will have numerous discussions with the ADA regarding the scope of the meeting and what the defendant can reasonably expect to get out of cooperating. The defense might limit the meeting to information regarding crimes that the defendant is not a part of.  Also, it is imperative at all times the Defendant be 100% truthful at a proffer session. If the ADA finds out that the defendant is lying, and is not credible then they will discount everything they are being told, and they will not go through on any plea bargain promises. The Defendant can very well find themselves in the unfortunate situation where they have disclosed incriminating information, and put themselves in a compromising situation at a subsequent trial.

Before any proffer goes forward, the ADA, the defendant, and the Defense Attorney will enter into a “Debriefing Agreement.” This agreement will have three main points.

1. Case-in-chief Prosecution – If the DA’s office brings an action against the defendant, they will not use on their case-in-chief any statements made by the defendant in the proffer meeting. However, the ADA can use any statements in an action against the defendant for perjury or false statements.
2. Statements Leading to new Evidence - The ADA can use any statements in this meeting for the purpose of obtaining leads to other evidence, and if that new evidence is developed, it can be used in a new prosecution of the defendant. Further, if the Defendant decides to go to trial, and testify the ADA can use any statements made at the proffer on cross-examination, as well as to rebut any evidence offered by the Defense.
3. Merger Clause – The agreement only deals with statements made at this meeting at the specified date and time. It does not apply to any statements made at any other time. No promises as to the DA’s position as to the Defendant and a plea deal are binding, unless it is in a writing singed by all parties.

Proffer sessions are risky business.  As it is clear from above, the DA’s office can use the information the defendant provides to follow-up leads and conduct further investigations. If those subsequent investigations reveal new evidence against the defendant, it can be used to prosecute and convict the defendant. Further, the ADA has now had an opportunity to see how you are under pressure, under examination, and your underlying theory of the facts of the case. The debriefing agreement is specifically written broadly so that the DA’s office has great latitude in its options against you. By proffering, you basically give up your right to present a full defense at trial.  Now, what do you do if you do not get the deal that you expected.

Before you decide to enter into a proffer agreement with the DA’s office a Defendant and his/her counsel must consider a few questions:

• How strong is the DA’s case against you?
• Do you have any defenses? If so, how strong are they?
• What are the possible sentences if you cooperate?
• Are there any plea bargain limitations?
• What about the possible sentences if you are convicted at trial?
• Could you weather the storm that a trial brings?
• Is the DA trustworthy? Is he/she authorized to plea out this matter as they fit? Do they need a supervisor/bureau chief’s permission?
• How much information can you provide?
• What sort of information can you provide?
• Are you or your family at risk if you provide information?
• Can you testify at trial of any of the future defendants that your information led to their arrest?
• Are you confident that you can be truthful even if it is incriminating?
• Do you have any professional licenses at stake if you are convicted?
• Is your family or loved ones at risk of arrest, indictment, etc.?
• Is there any pending civil/forfeiture action?

Once a thorough analysis of the above questions and answers is done, one can make an informed decision as to whether a proffer session is in their best interests.  As in any interaction with law enforcement, one must guide themselves accordingly.

Todd A. Spodek, Esq. is a Partner at Storobin & Spodek, LLP a criminal defense firm located in New York City. He can be reached at (212) 748-9243.

Under Criminal Procedure law 160.50(1) when a case is resolved in favor of a defendant, the record of the action must be sealed, unless the Court directs otherwise.

In Favor of a Defendant includes the followingg:

• Acquittal at Trial
• Dismissal by Grand Jury – No True Bill
• Dismissal in the Interests of Justice – Clayton Motion
• Dismissal of Information
• Adjournment in Contemplation of Dismissal (“ACD”)
• Decline Prosecution (“DP”)
• Decline to File Accusatory Instrument (By the Police)
• Order Setting Aside the Verdict
• Order Vacating a Judgement
• Habeaus Appeal
• Unlawful possession of Marijuana – Penal Law 221.05

In these situations, the records are automatically sealed. The records with the Police, the Prosecutor, Division of Criminal Justice Services (“DCJS”), and the Court are all sealed. These records are available to the defendant or his/her agent.

The other type of sealing that occurs is with Violations and Traffic Infractions. In these circumstances, the DCJS, Police and prosecutors files are all sealed. The difference here is that the Court records are not sealed. The Court needs to keep a record of these convictions.

When a third-party does a criminal history record search (“CHRS”) on an individual only the convictions of misdemeanors and felonies will come up. Offenses will no longer show.

Common Infractions and Violations include the following:

• Trespass
• Disorderly Conduct
• VTL Violations
• Harassment in the 2nd Degree

The only time that sealing does not occur under these circumstances, is when the District Attorneys office moves upon not less than 5 days notice to stop the sealing in the interest of justice.

Lastly, a record of a sealed arrest remains in a confidential file at DCJS and can only be accessed under the following circumstances:

• The client requests it
• The client applies for a gun license
• The client applies for a job as a law enforcement or peace officer
• The client is arrested while on probation or parole
• If a prosecutor or law enforcement establishes that “justice requires” it.

“In all criminal cases the accused shall enjoy the right … to a speedy trial.”

The underlying purpose of this right is that defendants should not be subject to unreasonable lengthy incarceration prior to a trial. It protects defendants against egregious prosecutorial conduct to delay cases.  Besides the right granted under the U.S. Constitution, the right is also codified in New York in Criminal Procedure Law Section 30.30. Unlike the constitutional right, the NY right was enacted to enforce prosecutional readiness and to address delays by prosecutorial inaction.  The criminal defendant has two rights, both the speedy trial right under the U.S. Constitution and the one under the NYS Penal Law.  Depending on the type of offense an individual is charged with will depend on the applicable time period under New York State Law.

New York State Statutory Speedy Trial Rights:

Applicable Time Periods:

Felonies – 6 Months

Class A misdemeanors – 90 Days

Class B misdemeanor – 60 Days

Violations – 30 Days

Traffic Violations – No Time period for statutory Speedy Trial but Constitutional Speedy Trial still applies

To be “ready for trial” under CPL 30.30, the Prosecution must in fact be ready to proceed and communicate that readiness on the record.  Once the Prosecution states ready on the record they have met the statutory requirement.  This can’t be a prediction or expectation of future readiness.

Subsequently, they are only charged with a delay that directly implicates their ability to proceed to trial.  The People are not charged with the time that is due to court congestion. To calculate the speedy trial time you look at the time between the filing of the first accusatory instrument and the Peoples declaration of rediness. You then subtract excludable periods of delay, and add any post-readiness delays which are attributable to the People and are excluded under the statute.

Excludable Time Periods:

The Actual Day the Accusatory Instrument was Filed

Pretrial motions filed by the Defendant and the period they are under review.

Discovery by Stipulation (“DBS”)

Peoples need for a reasonable time to prepare for trial

Adjournments based on consent of both the Prosecution and Defense

The Burden:

When a motion is made pursuant to CPL § 30.30, a defendant meets his burden of going forward by demonstrating that a delay greater than the allowable statutory time limit has occurred since the commencement of the action. Once shown, the burden then shifts to the People to show that certain periods of time should not be charged against them.

1. Level 1 – The Police are permitted to request information from an individual, as long as that request is supported by an objective, credible reason. The reason does not necessarily have to be indicative of criminality.
2. Level 2 – This is the common-law right of inquiry. The Police need a founded suspicion that criminal activity is afoot.
3. Level 3 – The Police can forcibly stop and detain an individual. This requires a reasonable suspicion that the particular individual was involved in a felony or a misdemeanor.
4. Level 4 – This is an arrest. This requires probable cause to believe that the person committed a crime.  Probable cause exists where the facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense has been or is being committed.

Criminal Sale of a Controlled Substance in the 3rd Degree reads as follows:

A person is guilty of criminal sale of a controlled substance in the third degree when he knowingly and unlawful sells:

1. a narcotic drug

Definitions:

Narcotic -  This is defined in NYS Penal Law 220.00(7) as any controlled substance listed in I(b), I(c), II(b) or II(c) other than methadone, listed in section thirty-three hundred six of the public health law.

Controlled Substance is defined in NYS Penal Law 220.00(5) as any substance listed in schedule I, II, III, IV or V of section thirty-three hundred six of the public health law other than marihuana, but including concentrated cannabis as defined in paragraph (a) of subdivision four of section thirty-three hundred two of such law.

Sale – The word sell here means to sell, exchange, give or dispose of to another. This is defined in NYS Penal law 220.00(1).  This will also include when a seller makes offer to sell or an agreement to sell even if the transaction is not completed. The requirement being that the “seller” must have had the conscious intent to make the sale.

Knowingly – A person knowingly sells when that person is aware that he/she is selling a substance which include the controlled substance.

Unlawfully – This is that the individual charged has no legal right to sell it. This is defined under NYS Penal Law 220.00(2) and refers to a violation of Article 22 of the Public Health Law. Under the law there are exceptions where individual are allowed to sell controlled substances.

This statute does not specify the amount of narcotics that need to be sold for one to be charged and subsequently be found guilty of CSCS in the 3rd Degree. Any amount of narcotic will suffice.

CSCS 3rd Degree is class B non-violent felony.

CRIMINAL COURT OOP:

To obtain a OOP in Criminal Court, a criminal case has to be brought against the individual.  The victim/accuser would be the complaining witness and the local District Attorneys office would prosecute the case.  In criminal court there is no relationship requirement to an OOP. Anyone can obtain an OOP against another individual. The commence a criminal case against someone you can go to the local police precinct, district attorneys office or criminal court and file a complaint. Once the Defendant is arrested, at his/her arraignment the Judge can order a Temporary Order of Protection untill the next Court date.

Generally criminal court OOP last for two years. misdemeanors can last for up to 5 years and Felonies for up to 8 years.

FAMILY COURT OOP:

To obtain an OOP in Family Court, you have to be related to the accused in one of the following ways:

1. A current or former spouse
2. Have a child in common
3. Another family member that you are related to by blood or marriage
4. An intimate relationship (This can be casual/social relationship. This is a fact specific analysis.

Further, you have to allege that one of the following “family offenses” against you:

1. Disorderly Conduct
2. Harassment
3. Aggravated Harassment
4. Stalking
5. Reckless Endangerment
6. Assault
7. Attempted Assault
8. Criminal Mischief

You can obtain a Temporary Order of Protection from Family Court. The Judge must believe that you are in immediate danger.  This will last untill you have a full court hearing in which the Judge will decide if a Final Order of Protection is necessary. A case is started when the Petitioner (accuser) files a Petition in the Family Court. The Petition is a written request that the Court take action. The Petition will tell the Court who the parties are and what specific action the Petitioner wants.

A Family Court OOP lasts for 2 years and 5 years if aggravating circumstances are found. Aggravating circumstances include physical injury or serious physical injury, the use of a dangerous instrument (including a weapon), a history of repeated violations of prior orders of protection by the abuser, prior convictions for crimes against you by the abuser, the exposure of any family or household member to physical injury by the abuser and prior incidents and behaviors of the abuser that make the judge believe the abuser is an immediate and ongoing danger to you or any member of your family or household.

Also, there can be simultaneously Orders of Protection from both the Family Court and criminal Court.

SUPREME COURT: OOP

Civil Supreme Court OOP:

This can be obtained if you are in the middle of a divorce.  You can obtain one anytime before the trial or final settlement.  This is a civil court and thus the burden of proof is preponderance of the evidence.

Criminal Supreme Court – Integrated Domestic Violence (“IDV”):

The IDV Courts use one Judge to hear all of the relevant matters before them.  They can deal with the criminal case, the family law case, and divorce case. The judge can make all of the decisions for one family about Orders of Protection, custody, divorce, and criminal punishment. Court staff include a Victim Advocate, a Resource Coordinator, and a Children’s Coordinator.

Orders of Protection can contain may various restrictions. Common restrictions are as follows:

• Full or Stay Away OOP – This means that the accused can not have any contact with the accuser. You must stay away from their home, job, etc. The accused may also be required to stay way from the accuser’s children.
• Full or Stay Away from Joint Home – This means that the accused has to stay away from the home of the accuser. This is even if your name is on the lease and you pay rent there.
• Limited OOP – This means that you can not harass, abuse, or threaten the accuser whatsoever. You can have contact with the accuser though.

The trick to understanding when a defendant has to be Mirandized is that the warnings have to precede any non-pedigree custodial questioning. The idea behind it is that suspects dealing with Police are scared and may not realize that they do no have to speak to the Police. They have the right to an attorney to be there to assist them. If the Police ask you to come down to the Police Station, a Police Car to ask you questions – they are invoked.

The Miranda warnings do not have to be in any particular order. Different Jurisdictions have different versions all conveying the same principles.

In New York, they are generally as follows:

“You have the right to remain silent. If you give up the right to remain silent, anything you say can and will be used against you in a court of law. You have the right to an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning.”

Further, the New York State Constitution states:

“No person shall be compelled in any criminal case to be  witness against himself or herself”

The NYPD has certain interrogation tactics they will use in an attempt to get suspects to speak freely, without giving them warnings so that the statements can be used against them. One trick that is used is that the officers will just stat talking about the overwhelming evidence against a suspect in the hopes that the suspect will say something to refute the evidence. Another trick is to just sit with the suspect in an interrogation room and do paperwork without talking. The hope being the suspect will just start talking. Lastly, Police will sometimes try to convince you that if you cooperate with them you will either get a more favorable plea bargain from the District Attorneys Office or charges will not be pressed against you. Be weary of any promises. The Prosecutor has the sole discretion in what charges are brought against you and what sort of plea bargain you will be offered subject to a Judges approval. Any Police promises are not binding on anyone.