New York Criminal Defense Lawyer Blog

New York Governor David A. Paterson yesterday signed the Child Passenger Protection Act aimed at making New York’s DWI law the toughest in the nation. Under the new law:

• Any driver who operates a motor vehicle while intoxicated or impaired by drugs with a passenger under the age of 16 will automatically have their driver’s license suspended;

• Any person driving while intoxicated or impaired by drugs with a passenger under the age of 16 years old in New York can be charged with a class E felony punishable by up to four years in state prison;

• Any person driving while intoxicated or impaired by drugs who causes serious physical injury to a passenger under 16 years old in New York can be charged with a class C felony punishable by up to 15 years in state prison;

• Any prson driving while intoxicated or impaired by drugs who causes the death of a passenger under 16 years old in New York can be charged with a class B felony punishable by up to 25 years in state prison;

• Any person driving while intoxicated or impaired by drugs with a child passenger for whom they are legally responsible will be reported to the Statewide Central Registry of Child Abuse and Maltreatment by the arresting agency; and

• Any driver convicted of a DWI misdemeanor or felony in New York must be ordered to install an ignition interlock system in their vehicle for at least 6 months at their own expense [Approximately $80.00 per month].

The Child Passenger Protection Act is now known as Leandra’s Law after Leandra Rosado.

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Posted In: Recent Legislation-2009

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The New York Penal Law has always required a person convicted of a felony while out on felony parole to serve their new state sentence consecutive to the time remaining on their original state sentence except for the most serious felony offenders which are A-I felons and repeat child sexual assault felons. Until yesterday, A-I felony offenders and repeat child sexual assault felons were inadvertently permitted to serve their new state sentence concurrently with the time remaining on their prior state sentence unless the judge at the time of sentencing specifically stated that it was to be served consecutively. However, New York Governor David A. Paterson yesterday announced that he signed a bill mandating that all A-I felons and repeat child sexual assault felons serve their sentences consecutively to any time remaining to be served on any previously imposed state sentence.

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Posted In: Recent Legislation-2009

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New York Governor David A. Paterson recently announced that he signed a bill amending New York’s Penal Law §§ 125.26 and 70.00(5). Under the new law, an adult who intentionally causes the death of a person under the age of fourteen years old can be found guilty of Aggravated Murder if they tortured the victim prior to death. [Penal Law §§ 125.26] The bill also authorizes a sentence of life imprisonment without the possibility of parole. [Penal Law §70.00(5)] The justification for the bill was the heartbreaking Nixzmary Brown Case. The bill was sponsored in the New York Assembly by Assemblyman Joseph R. Lentol. The assembly bill number is A 5080. The bill was sponsored in the New York Senate by Senator Ruben Diaz. The senate bill number is S 6091. The new law took effect October 9, 2009.

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Q. What section of the law authorizes the New York State Judicial Diversion Program?

A. New York Criminal Procedure Law Article 216

Q. When was the law enacted?

A. April 24, 2009

Q. When did the law take effect?

A. October 6, 2009

Q. Who is eligible to participate in the Judicial Diversion Program?

A. Defendants charged in an indictment or superior court information with a Class B, C, D, or E felony controlled substance offense or marijuana offense. [CPL § 216 (1)]

Q. Who is not eligible to participate in the Judicial Diversion Program?

A. A defendant is not eligible –without consent of the prosecutor-if he has been convicted of a violent felony within the last ten years. A defendant is not eligible –without consent of the prosecutor-if he has been previously adjudicated a second violent felony offender or a persistent violent felony offender. A defendant is not eligible–without consent of the prosecutor- if presently charged with a violent felony offense. A defendant is not eligible –without the consent of the prosecutor- if he has been convicted within ten years of a merit time ineligible offense or is presently charged with a merit time ineligible offense. [CPL § 216 (1)(a)(b)]

Q. When can a defendant request to be in the Judicial Diversion Program?

A. Anytime after the arraignment but before the entering of a plea of guilty or the commencement of a trial. [CPL § 216.05(1)]

Q. What is the first step in the process?

A. An eligible defendant requests an alcohol and substance abuse evaluation. [CPL §216.05(1)]

Q. Does the Court have to order an alcohol and substance abuse evaluation?

A. The court may order an alcohol and substance abuse evaluation for an eligible defendant. [CPL §216.05(1)]

Q. Who gets a copy of the alcohol and substance abuse evaluation?

A. The defendant signs an authorization allowing the alcohol and substance abuse evaluation to be released to the court, prosecutor, defense counsel, local probation department and any other person specified in the authorization for the sole purpose of determining whether the defendant should be offered judicial diversion for treatment for substance abuse or dependence or alcohol abuse or dependence and any co-occurring mental disorder or mental illness. [CPL §216.05(1)]

Continue reading "FAQs About New York State’s Judicial Diversion Program" »

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Governor David A. Paterson this week signed a bill creating New York Vehicle and Traffic Law § 1225-D which prohibits a motor vehicle operator from using portable electronic devices to send text messages or emails while the vehicle is in motion. It also prohibits receiving, sending images on such devices as well as playing games.

New York Vehicle and Traffic Law § 1225-D defines a portable electronic device as a cell phone, a PDA , a laptop computer, a pager, a broadband personal communication device, a two-way messaging device, a handheld device with mobile data access, an electronic game, or a portable computing device.

New Vehicle and TrafficLaw §1225-D will not apply if the portable electronic device is being used for the sole purpose of communicating with an emergency response operator, a hospital, a physician, a health clinic, an ambulance company, a fire department or police regarding an emergency situation. New Vehicle and Traffic law §1225-D also does not apply to the following persons while acting in their official capacity: police officers; peace officers; fireman or authorized emergency vehicle operators.

New York Vehicle and Traffic Law §1225-D establishes a a rebuattable presumption that a person holding such a device in a conspicuous manner while operating a motor vehicle was using it within the meaning of the statute.

A summons for violating New York Vehicle and Traffic Law §1225-D can only be issued if there is reasonable cause to believe the operator of the motor vehicle committed a separate violation of the law.

A violation of New York Vehicle and Traffic Law §1225-Dis a traffic infraction punishable by a fine up to $150.00. New York is the eighteenth state to pass a law banning texting and emailing while driving.

New York Vehicle and Traffic Law §1225-D doea not authorize seizure or forfeiture of the portable electronice device unless otherwise authorized by law.

The bill was sponsored in the New York State Assembly by Assemblyman David F. Gantt and in the New York Senate by Senator Martin Malave Dilan. The Assembly bill number is A.08568B. The Senate Bill number is S3619.

New York Vehicle and Traffic law §1225-D will take effect November 1, 2009.

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New York Governor David A. Paterson today announced the signing of a bill into law aimed at speeding up the process for the handling of alleged probation violations. New York criminal courts will have 72 hours to make a decision on a request by a probation officer for a declaration of delinquency. [CPL § 410.30] New York criminal courts will have 72 hours to issue or deny a request for a probation warrant. [CPL §410.40] The police or peace officer to whom a probation warrant is addressed will need to enter it in the statewide system within 48 hours of its receipt. [Executive Law §221(1)] A notice of appearance will have to direct a defendant to appear in court within 10 business days. [CPL §§ 410.40 and 410.60] Senator Owen Johnson and Assemblyman Jeffrion Aubry sponsored the bill. This new law is to take effect November 1, 2009.

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Posted In: Recent Legislation-2009

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