There are presently more than a dozen pieces of legislation pending in the New York State Legislature to expand the use of DNA material. Recently a DNA data bank was utilized by Westchester County legal authorities to match the DNA of Francisco Acevedo for the murders of three woman in Yonkers from 2009.

Francisco Acevedo was arrested while driving intoxicated on January 26, 2009 in Brentwood Long Island. As part of that arrest Mr. Acevedo’s DNA was taken from him last year while he was serving a prison sentence in upstate New York. This was a result of multiple felonies convictions for driving while intoxicated convictions.

His DNA was compared to a data bank maintained by the State of New York which was established in 2004. The data bank linked him to three murder victims. Mr. Acevedo now faces multiple charges of first and second degree murder. Presently state law requires DNA to be collected from individuals convicted of felonies and a variety misdemeanors. The state of New York currently obtains DNA material from approximately 46% of all individuals convicted of crimes.

State Senator Dean Skelos, from Rockville Centre New York , wants the law modified so that DNA samples are taken from every single person arrested or under suspicion for committing a felony or misdemeanor.

State Senator Skelos claims that the Acevedo case is a good example of the types of crimes that would be solved if the states DNA data bases were expanded. Senator Skelos further stated that the expanded data base could solve crimes going back as long as 30 years. Senator Skelos was asked if he had privacy concerns regarding the expanding of the data base. His response was his job was to protect the public.

Expanding DNA data bases may be helpful in solving some crime however the over expansion of DNA collection makes me think of Aidous Hudley’s book “A Brave New World”. Americans are entitled to rights of privacy. A reasonable accommodation should be made for DNA collection but not at the expense of basic rights for American citizens.

If you are under suspicion or charged with a crime, contact the law office of Elliot S. Schlissel. We have been helping our clients with criminal matters for more than 30 years. Contact us at 1-800-344-6431 or by e-mail.

Picture courtesy of criminals.com.

There are 35 states in the United States of America that currently have death penalty statutes on their books. Utah is the only state in American that still has uses a firing squad as a method of execution.

On Friday April 23, 2010, a judge in Utah agreed to an inmates request that the death penalty that was rendered against him be carried out, in what can be considered on old west style of justice, by firing squad.

Ronnie Lee Gardner, 49 years of age was given a choice as to how the death penalty would be carried out. His choice was either lethal injection or to be shot in front of a firing squad that included a team of five men. Death by firing squad is a carry over from Utah’s territorial history.

Mr. Gardner has been advised that his appeals have been exhausted. He was convicted of killing a lawyer during a shoot-out in April 2005. The shoot-out resulted from Mr. Gardner trying to escape. His execution is scheduled for June 18.

Query: Will it be televised?

The criminal defense lawyers at The Law Office of Elliot Schlissel are available anytime at 800-344-6441 or by e-mail.

Picture courtesy of civilliberty.about.com.

In Ohio, cell phones protected by the 4th amendment’s prohibition against unreasonable search and seizure by the government.

In a recent decision, the Ohio Supreme Court has ruled that police officers need to obtain a warrant in order to search a cell phone. This decision by the Ohio Supreme Court takes into consideration the fact that cell phones today go far beyond the means of basic communication. They are mini computers that store large amounts of personal information. From this point forward, the personal information becomes a protected privacy right, at least in the State of Ohio.

Although most searches require warrants, police officers are allowed to search their immediate surroundings when dealing with potential arrests for their own self protection. The Ohio case involves a man named Antwaun Smith. He was arrested on drug charges. At the time of his arrest his cell phone was ceased and later it was searched. The police found information important to their investigation on his cell phone calling records.

The recent ruling of the Ohio State Supreme Court was a divided 4/3 vote. The decision indicated that Mr. Smith’s protection against unreasonable search and seizures under the 4th Amendment to the US Constitution were violated. The court, in its decision stated that cell phones are “capable of storing a wealth of digitized information”. The court’s decision indicated that individuals using cell phones have an expectation of privacy which is protected by the 4th Amendment to the US Constitution. 

The Ohio court’s ruling creates a new type of privacy. As hand-held devices become more and more sophisticated, they will contain more and more personal information. Individuals rights of privacy in devices that are basically hand-held mini computers should be protected by the 4th Amendment to the US Constitution. I have every hope that when a case presents itself, the NY Court of Appeals will make a similar ruling that respects individuals rights of privacy against unreasonable searches and seizures of all types of hand-held telephones and computer devices.

Should you, a friend or a loved one be subject to what amounts to be an unreasonable search, the criminal defense attorneys at the Law Office of Elliot S. Schlissel can use their expertise and diligence to protect your rights and the rights of a friend or a loved one. E-mail or call us at 1-800-344-6431.

Picture courtesy of the Daily Iowan.

The government of Iran recently acknowledged that a minimum of three of the young people held in the Iranian jails were beaten to death. This is a rare victory for governmental critics. 

It had previously been explained that meningitis was the cause of these deaths. However, the coroner’s office has stated that this is incorrect. The three died of severe beatings. The wounds to the protestors bodies were the cause of their death.

Twelve officials from the Kahrizak prison have been charged with murder. This was the prison on the outskirts of Taran where prisoners were tortured and raped.

It is claimed that 72 of the protestors were killed by their jailors. The government of Iran claims only 30 protestors died.

The Iranian government had initially denied all accusations of improper treatment of prisoners. Prosecutors have also stated this month that a doctor who originally exposed the mistreatment and torture of prisoners died from poisoning. It is alleged the cause of this doctor’s death was celery that contained an overdose of blood pressure medication. The opposition in Iran claims he was murdered because he was cooperating with prosecutors. The 26 year old doctor, Raminpour Andarjaini, had previously testified before Parliament. He advised Parliament that he treated protestors that died from torture. However, he was forced to lie by Iranian security officials as to the cause of their death on their death certificates.

The judiciary in Iran has been active involved in efforts to silence opposition protestors. The judiciary has been involved in the trial of more than 100 protestors, reformers and opposition leaders. The judiciary’s position is that the protests are part of an overall international plot to overthrow the Iranian government.

As always, for any kind of legal help, you can contact the Law Office of Elliot S. Schlissel at any time, 24/7, either by e-mail or at 800-344-6431.

Picture courtesy of the Seattle Times.

We advise our clients not to say anything to police officers if they are pulled over, or are taken into custody. Even seemingly innocuous answers to carefully crafted questions like “Do you know how fast you were going?” or “Are you dealing with some sort of emergency?” can be used to clinch a conviction in what may otherwise been a weak case against a person. This is because when one is being pulled over, he is not being “custodially interrogated,” and therefore the officer does not have to advise someone of their right to remain silent before making incriminating statements.

But recent cases have shown that there are instances, even after one has been incarcerated, where there is no “custodial interrogation,” and one can be questioned without being advised of his right to say “I don’t want to talk.”

Background

The famous Miranda decision allows a defendant to supress his or her own incriminating statements, so that they cannot be used at trial if they were elicited during a “custodial interrogation” without a valid waiver of the Miranda right to remain silent and right to counsel. The background to this rule was discussed earlier in this post.

In order to exclude one’s incriminating statements from evidence, the statements have to have been made without a valid Miranda waiver in the context of police “custody,” and while under “interrogation.” And while the meanings of those two words may seem self evident, they have developed very specific meanings in the Miranda context.

The recent Second Circuit Court of Appeals decision in Georgison v. Donelli, reported in this past Thursday’s edition of the New York Law Journal, is a good illustration of how particularly the term “custody” is defined.

While incarcerated at the Riverview Correctional Facility in 1996, New York City police officers were questioning Mr. Georgison regarding the 1993 pipe beating of a truck driver in the  Bronx, a matter unrelated to his incarceration. During the conversation, he made some incriminating statements. After making those statements, he indicated that he did not want to talk anymore and walked away. At trial, those statements were then used against him at a trail relating to that beating. He appealed the judge’s decision to admit his statements into evidence, arguing that he was being sbjected to “custodial interrogation” without Miranda warnings, or a waiver of those rights, at the time the statements were made.

His arguments were rejected in this most recent Second Circuit decision. The courts held that “custodial interrogation,” for Miranda purposes, can only exist where a person does not feel free to walk away from the officers questioning him. They held that this was not the case with Mr. Georgison’s interrogation, where he felt that he was at liberty to walk away from the officers when he no longer wanted to speak to them. The courts held that this conduct indicated that he did not feel he was restrained or not at liberty to leave the interrogation, and thus that his interrogation was not “custodial.”

They held that it was irrelevant that he was in a prison, and was unable to freely leave the prison as a whole. Miranda only requires that the person being questioned must feel restrained from leaving the interrogation. Being unable to leave his general surroundings, however, is irrelevant for the purposes of determing the presence or absence of “custodial interrogation.”

Thus, one should consult a competent criminal defense attorney, such as those at The Law Office of Elliot Schlissel, before saying anything to police officers, whether it is in the context of a simple traffic stop, one whether one is already incarcerated. You can contact our office, 24/7, at 800-344-6431 or by e-mail for help or more information.

Picture courtesy of FBI.gov.

In the United States today there are more than more than twenty-two hundred (2,200) juveniles who are incarcerated as adults. These juveniles are serving life sentences without the ability to obtain parole (to be released from jail prior to the end of their sentence). Among the twenty-two hundred (2,200) juveniles, there are some prisoners who are as young as thirteen (13) years old.

In 2005, the United States Supreme Court, in a close decision (5-4), held that an individual who committed a crime when he or she was younger than eighteen (18) years of age cannot be executed. The court held this was unconstitutional.

On Monday, November 16, 2009, attorneys representing two minors sentenced in the State of Florida argued before the United States Supreme Court that the theory behind the prior death penalty decision in 2005 should also be extended to minors receiving life sentences.

The theory behind the death penalty decision of the United States Supreme Court was based on two key factors: (1) minors are not as culpable for this crimes as adults and they can be reformed and (2) The Supreme Court held that it would be “cruel and unusual punishment” to execute minors. Cruel and unusual punishment is banned by the 8th Amendment to the United States Constitution.

Terrence Graham and another individual robbed a restaurant. He is in jail for this crime. In 2004, when he was only seventeen (17) years of age, he was sentenced to life in prison without parole. This action was taken because he violated the terms of his probation by committing another robbery at gun point.

Joseph Sullivan, committed a burglary when he was thirteen years old. He thereafter was convicted of sexual battery against a seventy-two year old woman. Joseph Sullivan, a mentally disabled individual, has been convicted of several serious felonies and seventeen criminal offenses overall.

In the aforementioned two cases, both of the juveniles were given life sentences for crimes that did not involve homicides. It should be noted that more than 135 countries throughout the world do not allow life sentences for juveniles.

The United Nations Treaty prevents the imprisonment of children without the possibility of parole. All of the countries who are members of the United Nations with the exception of the United States and lonely Samoa have executed this treaty.

Is our society mature and sophisticated enough to deal with errant juveniles without warehousing them in prisons for their entire life?

-Elliot S. Schlissel, Esq.

800-344-6431

Picture courtesy of acslaw.org

Click here to see Part 1 of the Q&A.

How does sentencing differ between the various types of drug possession and sale?

A variety of sentencing guidelines have been imposed by the New York state legislature in Albany. The guidelines relate to the how much of each drug one was found with and whether one is charged with drug or merely possessing it. They specifically provide more severe sentences for crack, cocaine and heroin than they do for marijuana.

There’s also a phenomenon of people illegally selling prescription drugs. Very often, drugs such as Vicodin, Oxycontin and Percocet are acquired by people who work in hospitals and then they’re sold on the street. These are drugs are prepared by pharmaceutical companies for medicinal purposes, but they’re abused when taken in inappropriate doses by individuals.

In what situations can somebody plead to a lesser offense?

If an individual is charged with possession of a drug, the person may legitimately have a drug problem. I will often suggest that such individuals participate in a drug treatment program to treat their addiction. If this is a person’s first offense, and was not committed in the context of any kind of violence – because the person did not, for instance, rob anyone to get money to buy the drugs, then an attorney can often convince the prosecutor that this needs help because he or she is suffering from an addiction, and therefore deserves probation.

For juveniles, the court may agree to have the young person sentenced to a “shock program.” Shock programs are generally programs where young people are placed in military-style, intense programs that include a significant amount of manual labor. These programs may be allowed in lieu of a sentence in an actual prison for a first offense. The sentences for these shock programs are generally much shorter than they are for normal prison sentence.

Although various kinds of shock programs have been around for a long time, the requirements and types of programs have changed. Today, they are often used in the cases of minors or young men who have been convicted of selling crack and other drugs on the streets of New York City, Brooklyn and Queens counties. Long Island’s Nassau and Suffolk counties also have relationships with these programs.

Besides shock programs, the courts will often consider other alternatives to jail time. Parole and probation are also used. If someone has already served prison time, he or she can be paroled. Parole consists of a certain amount of time after being released when one must report to a parole officer. During that time, the person must avoid less-than-legal habits, people who are involved in criminal activity, and, of course, you have to stay drug-free.

A person may be put on probation, on the other hand, rather than a jail sentence, or in combination with a jail sentence. A person will generally be required to meet with his probation officer, usually once a month during the probation period.

What happens if someone decides to go into a drug treatment program during this process? How does that affect their jail sentence?

Judges often understand that drug addiction is a condition that requires treatment. They look very positively on those who are proactive and place themselves into a drug treatment program. But going into a drug treatment program is not a “get out of jail free” card. It does not mean that you will not get a jail sentence at all, but it can, in many situations, reduce one’s jail sentence or possibly convince a court to give an extended probationary period, such as five years, rather than sentencing a person to jail time.

What types of representation are available to individuals who have been arrested on a drug crime?

Two basic types of representation are available to such individuals. Legal Aid or 18B, court-appointed attorneys, are available to those who cannot afford to hire their own attorney. The other option is private counsel. Legal Aid and court-appointed attorneys work very hard and with great diligence to represent their clients. But unfortunately, they are often overworked and have limited resources. They cannot give their clients the kind of personal attention that would be available with private counsel.

Private defense counsel, such as the attorneys  in our office, can advise you about alternatives to serving  jail time. We work with organizations who help individuals avoid actually serving prison time. We sometimes involve social workers at one of these organizations to work with the individuals charged with crimes and we sometimes bring these social workers to court to make presentations to the judge regarding what is involved in the program.

It is important that one is sincere in order for us to be able to effectively convince the court to consider alternatives to jail time.  We are often able, by working with the judges, the probation department and outside organizations, to convince the court that both our client and society in general are better off if the person is allowed to pursue treatment, rather than serving time in prison.

Unfortunately, jail can often create better criminals. We are able, very often, to convince  judges that our clients should be given a second chance and that they should not be incarcerated, but should be allowed to continue in treatment programs to deal with their drug addiction.

How do criminal drug laws affect minors?

A minor can sometimes be charged as an adult. Sixteen and seventeen year olds are automatically charged as adults, while thirteen to fifteen year old minors may be charged as adults for serious and violent crimes. If ta minor is indeed charged as an adult, they will be subject to the same penalties that an adult would face.

The Family Courts in New York State are designed to handle cases involving minors. When charged as a juvenile, a minor will generally not be sentenced to a more severe penalty than being held in a youth facility until they are either 18 or 21 years old.

However, when a minor is convicted as an adult, he or she has the status of a “youthful offender.” When this is done, the court seals his or her record. So, when a minor is designated a “youthful offender,” his record is sealed and it does not show up as a criminal conviction in the minor’s record.

Employers often ask whether someone has been convicted of a crime when he or she is making an employment application. While one may not falsify such an application, checking “yes” on the employment applications can negatively affect the person’s future employment prospects.

Some judges are aware that young people often make mistakes. Our office knows how to effectively respond when minors are charged with drug crimes in getting them into programs. We have had success in many cases avoiding incarceration sentences and obtaining alternate sentencing. We can take action to induce the district attorney’s office and the judges to work with us in formulating alternatives to jail time for our clients.

The Law Office of Elliot S. Schlissel
479 Merrick Road
Lynbrook, NY 11563

Toll Free: 1-800-344-6431
Nassau phone: 516-561-6645
Queens phone: 718-350-2802
Fax: 516-561-6716

E-Mail

Picture courtesy of atd.com

marijuana drugs dope arrest confiscated potWhat type of drug cases do you handle?

Our offices handles every type of drug case, from relatively minor prosecutions for possession of marijuana, to defending those who are charged will selling “hard drugs.”  There is a big difference between the kind of sentences imposed for what are called hard drugs, such as cocaine and heroin, and soft drugs such as marijuana. While selling marijuana is prosecuted relatively tepidly in New York, Brooklyn and Queens courts, in Nassau and Suffolk County counties, they generally prosecute even marijuana possession quite aggressively.

We represent people who are charged with the possession and/or sale of cocaine and heroin, which used to be subject to very severe penalties under the “Rockefeller Drug Laws,” which were in effect in New York for decades. Recent changes in the law have significantly reduced these penalties.

The unauthorized possession or sale of prescription bills can also subject a person to serious criminal charges.  Some of these pharmaceuticals are manufactured in illegal laboratories.

What are some of the pills that you’ve seen?

We have defended clients who were charged with illegally obtaining such drugs as Vicodin, Oxycontin and Percocet.

How are the crimes of sale and possession defined in New York?

Possession is not penalized as severely as crimes relating to the sale of illegal narcotics. It is possible to inadvertently commit the crime of selling drugs by buying some drugs and then giving or selling a small amount to a friend. Although the person may not intend to become a “drug dealer,” he is inadvertently committing a much more serious offense than merely possessing drugs. 

The system works in the following way:  If the authorities arrest you for possessing a narcotics of a certain weight, you would often want to make a plea deal with the prosecutor. It is sometimes necessary for you to cooperate with the police or the district attorney’s office by giving them information to assist in the prosecution of someone on a higher level in the drug dealing chain. This is what happens to many individuals on the lowest level of the drug dealing pyramid structure who are caught by narcotics agents, or “narcs,” as they sell drugs on the street.

As indicated earlier in this post, New York City, Brooklyn and Queens counties treat drug crimes differently than they do in Nassau and Suffolk counties. In the latter, these cases are more vigorously prosecuted in the Long Island suburbs than they are in the city.

Picture courtesy of hiptics.com

According to an Associated Press report, an 18 year old freshman at Hofstra University came to police on Sunday (9/13/09) claiming that she had been tied up and gang-raped by five men in a men’s dormitory. After her statement to the police, they arrested four of the five young men. On Wednesday night, word that one of the young men had a cell phone video of their encounter with the young woman, showing that everything that occured between her and the five men had been consensual. This prompted her to recant her story and the police released the four men. The Nassau County District Attorney’s office is considering charges against the young woman, who’s name has not been released, for filing a false report with the police. 

Hofstra RapeCan this woman be prosecuted criminally for filing a false affidavit with the police? Would the young men have a valid civil case against her for false imprisonment?

According to New York Penal Law § 210.10,  one may be convicted of perjury in the second degree, a Class E Felony, if she:

  1. Swears falsely
  2. Does so in a document for which an oath or affirmation to tell the truth is required (like an affidavit)
  3. The person intends “to  mislead  a public servant (like a police officer)  in the performance of his official
      functions”
  4. The matter the person lied about is “material” to the proceeding/action about which she is lying.

If this woman’s false statement was not only made in an oral statement to police, but sworn to in an affidavit, then the public reports would seem to indicate that the other elements of felony perjury are there. If she is convicted of a Class E felony, the class of felonies with the shortest jail term, it is still possible for her to be sentenced for upwards of a year.

If the young men sue their accusor in a civil court for “false imprisonment,” they must be able to show that she had the intent to cause them to be confined, and that the young men had no “reasonable means of escape.” Parvi v. City of Kingston. Even if she only caused them indirectly (e.g. by using the police to do the imprisoning on her behalf) to become imprisoned, as opposed to physically imprisoning them herself, she can still be liable. 14 N.Y.Prac., New York Law of Torts § 1:24. And where one instigates the police to arrest someone may also be liable for the tort of false imprisonment. Celnick v. Freitag,  662 N.Y.S.2d 37 (1st Dept.1997).

In sum, if the public reports are based on admissible facts, then the Hofstra rape case accusor may not only be arrested and imprisoned for perjuring herself by falsely accusing these men of rape, they may also have a cause of action against her for monetary damages for causing them to be falsely imprisoned.

As always, if you need a criminal defense lawyer  in NY because you are charged with making a false statement to police, perjury, rape, or any other crime for that matter, you can always call our office, which has about thirty years of experience in criminal defense. On the other hand, if you need a personal injury attorney to sue someone for physically confining you if you need someone to defend you against such a claim, or you need to sue someone for any other type of injury, our office has significant experience in personal injury law as well. And you can contact our office at 800-344-6431 anytime 24/7.

Picture of three of the accused men, Kevin Tavares, second from left, Stalin Felipe, center, and Rondell Bedward, right, courtesy of Frank Eltman.

arrest car police officer handcuffs

Have you ever failed to pay all or part of a ticket, and then unknowingly had your license suspended, and then continued to drive using that suspended license?[1] Have you ever hung out in a club or bar where people were using drugs?[2] Do you know anyone who has failed to keep their property clean?[3] If so, it is possible for the police to arrest you and, until recently in New York City,[4] strip search you!

The law in New York states that a police officer may arrest you if he sees you commit a misdemeanor.[5] The three crimes listed above (and many others) qualify as misdemeanors, and so if the police observe you committing one of them, they are permitted to, but are not obligated to, arrest you.

The New York City Department of Corrections made it a practice to strip searchall misdemeanants charged with drug or weapons crimes who were detained upon arrest as well. The City claimed that “like felony detainees, [these misdemeanants] could never legitimately claim that they had a ‘right’ not to be strip searched.”[6] 

Unfortunately, there are major problems with the City’s logic. The 4th Amendment to the U.S. Constitution, as applied against the States by the 14th Amendment, prohibits the government from conducting “unreasonable” searches and seizures. Claiming that the Dept. of Corrections violated this Constitutional provision, a group of arrestees who had been strip searched at Riker’s Island without any individualized inquiry as to whether they were likely to be hiding weapons or contraband, sued the City of New York for violation their Constitutional right not to be searched “unreasonably.”[7]

Mark Hamblett, in the New York Law Journal, pointed out Southern District Judge Gerard Lynch’s recent finding in this case that the city is liable for violating the Constitutional right of those arrestees.[8]He pointed out that the Second Circuit Court of Appeals recently held that “it is ‘long-standing precedent’ that before a misdemeanant may be lawfully strip-searched on intake, the Fourth Amendment requires an individualized ‘reasonable suspicion that [he] is concealing weapons or other contraband based on the crime charged, the particular characteristics of the arrestee, and/or the circumstances of the arrest.’”[9]

Judge Lynch reaffirmed the notion that the Constitutional default setting of the police should be “Do Not Search” mode. Deviations from that require some specific, individualized justification. The police must have some specific reasons to justify a “reasonable suspicion” that a detainee may be in possession of either contraband or a weapon that poses a danger to the police.

The bottom line is that it is better not to commit any misdemeanors to begin with. But if you are arrested for one, the police need some specific facts on which to base a suspicion that you in particular have contraband or weapons (that would be revealed by a strip search) in order to conduct a strip search. If the police find anything illegal during a strip search, and the search was conducted without “reasonable suspicion,” you may be able to have that evidence suppressed. So be sure to hire a good criminal defense attorney to help you with this or any other criminal defense matter.


[1]NY Veh. & Traf. § 511(1) (West 2009)

[2] NY Penal § 240.36 (West 2008)

[3] NY Penal § 240.45 (West 2008)

[4]McBean v. City of New York City, 2009 WL 2524617 (S.D.N.Y. Aug. 14, 2009)

[5]NY Crim. Proc. § 140.50 (West 2004)

[6]McBean at *6.

[7]McBean at *1-2.

[8]McBean at *6.

[9]Kelsey v. County of Schoharie, 567 F.3d 54, 62 (2d Cir.2009)

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