Thursday, February 21, 2013

Buffalo NY Area Resisting Arrest Lawyer

Resisting Arrest

What sometimes can start  out as  a violation of Disorderly Conduct (NY PL 240.20), can result  in the police taking you into custody for Resisting Arrest pursuant to New York Penal Law 205.30. Whether you are in Buffalo or the outlying townships like Amherst, Cheektowaga, or Tonawanda  you now find yourself charged with a misdemeanor and in need of a Buffalo Area criminal defense attorney.

While often a legitimate charge by the police for  fights during an arrest procedure, the crime of Resisting Arrest also enables law enforcement to charge  you with an offense punishable by up to one year in jail for something that is minor  and truly "non criminal." According to the law of Resisting Arrest in New York State , if you prevent or attempt to prevent a police officer from placing you under arrest where he or she is authorized to do so you are guilty of an "A" misdemeanor.

If you swing your arms or hold them up so that you cannot be handcuffed, that will probably  establish resisting arrest.  Certainly, thefacts of every case are different  , but if someone  intentionally tries to stop the police from making  an authorized arrest it is likely they  will face this charge. If convicted as an adult, this crime will permanently remain on your record.

It is important to note that if you are charged with Resisting Arrest there are certain issues you should discuss with your Buffalo Area criminal defense lawyer before considering accepting any deal.

Buffalo NY Area Bad Check Lawyer

Issuing a Bad Check: New York Penal Law 190.05

Issuing a Bad Check (New York Penal Law 190.05), is  one of the least serious fraud type  crimes handled by Buffalo Area criminal lawyers. It is  a “B” misdemeanor punishable by up to 90 days jail,.  Should you be convicted of this crime, it could put a very bad mark on your record and be prepared to place your immigration status in serious jeopardy. Certainly you will need the experience of a Buffalo criminal defense attorney.

In simple terms, one is guilty of NY PL 190.05 for Issuing a Bad Check if they deliver a check to another person knowing that you or the person for whom you are uttering or passing the check does not have sufficient funds to cover the check. Additionally, you must intend that when the receiver of the check deposits it, payment will be refused and it is in fact refused.

Making things tougher when facing the charge of Issuing a Bad Check, the law provides for many damaging presumptions found under New York Penal Law 190.10.

Specifically, if the drawer has non-sufficient funds in his or her bank account to cover that check, the law permits a judge to issue a ruling that allows a jury (or him or herself if there is a bench trial), to infer that the drawer knew the account lacked the funds. Also,  another presumption that you intentionally issued a bad check is permissible if you actually issue a check from an account that is closed.

Despite the law apparently being stacked against a person arrested or accused of Issuing a Bad Check in Buffalo or the adjacent Towns and Villages  there are practical and statutory defenses. Whether any of these will work for you is something that you and your counsel should discuss and potentially implement as soon possible.

Call Buffalo Area Criminal Defense Lawyer J John Sebastian  for a Free consultation...



Monday, February 18, 2013

Buffalo Area Prostitution Defense Lawyer

Escort Services, Prostitution and Unlicensed Massage

Know Your Rights...Know The Law

While escort services and prostitution has gotten more popular with the  the internet, prostitution and related crimes have been around long before the dawn of the computer. You don't have to look very far to see that law enforcement, the BPD, local prosecutors, the FBI and the United States Attorney's Office, are aggressively investigating and prosecuting these offenses. As a result, many peoples lives  and families are ruined  as loved ones are jailed and humiliated.

At a minimum, those involved in the prostitution, "johns," madams, prostitutes, pimps, call girls, phone operators, money collectors and anyone else who agrees  or assists in the service, may be charged with one or more of the following crimes due to their direct involvement or because they were acting as an accomplice:

The above mentioned crimes range from a "B" misdemeanor, punishable by up to 90 days in jail, to a "B" felony, punishable by state prison.
Regardless of your level of involvement in a prostitution related offense  not taking the charges seriously or retaining an inexperienced attorney can exacerbate  your problems considerably.J John Sebastian is  a former prosecutor , who is ready to aggressively fight on your behalf, and  is available day or night. Having handled countless prostitution cases J John Sebastian  has tremendous experience that he will use to zealously protect your rights, freedom and good name.
Call us at 716-254-1751 or contact us online today. 

Buffalo Area Domestic Violence Lawyer

If you have been charged in the Buffalo Area or Erie and Niagara Counties with Domestic Violence Assault, Harassment or Aggravated Harassment , Child Abuse or any other domestic violence offense, it is critical that you obtain legal representation immediately. 

In New York State, tens of thousands of domestic violence cases are filed by district attorneys every year.  Many of those cases have merit. However, many innocent people are falsely accused of domestic violence.  Often, an alleged victim of domestic violence gives an immediate statement to police that is based on heat-of-the-moment emotion, not calm and rational reflection.  Police often form their conclusions based on these one-sided and irrational statements, without even listening to what the accused has to say. 

The consequences of a domestic violence conviction are severe, and can affect you for the rest of your life.  In a misdemeanor case, you can be sentenced to county jail for up to one year.  In a felony case, you can be sent to state prison.  You can be subject to a criminal protective order.  This can cause you to go to jail, even if the protected party contacts you.  If you are granted probation, New York law may require that you complete a  batterer’s treatment program.  This requires weekly attendance.  Between court fines and fees, and the costs of the treatment program, a domestic violence conviction could end up costing you thousands of dollars.  Also, the stigma of a domestic violence conviction could affect child custody proceedings, and prevent you from getting a job in the future.

Winning a successful outcome in your domestic violence case requires immediate action.  Call for a free initial consultation today!

       Sebastian Law Firm/70 Niagara Street/Buffalo/NewYork 14202

Call 716-254-1751/Free Consultation 24/7

Buffalo Area Speeding Ticket Lawyer

Buffalo Area Speeding Ticket Lawyer



A traffic ticket is not a simple matter. Simply paying a traffic summons does not end the matter since the DMV puts POINTS on your license for most traffic infractions. Just two or three summonses on your record can total up to enough points for you to lose your license. In some cases even ONE violation can cause you to lose your license. This is why it is important to defend yourself against a traffic summons even if it is only your first violation.


The insurance law permits companies to impose steep increases upon people who are convicted of traffic violations. In some cases, an insurance company could increase your premiums up to an additional 50% depending on your driving record. Just one traffic violation can cost you thousands of dollars in additional insurance costs! Worst of all, the insurance increases stay with you for more than three years after you pay the ticket.


Avoid going to court

In most cases and in the majority of courts, J. John Sebastian  can appear in court for you, you will save valuable time and not have to deal with the hassles of going to court..  Simply FAX or e-mail J. John Sebastian  the ticket(s) and  he will  take care of the rest, giving you stress relief and piece of mind.

Save money

Hiring a reasonably priced attorney will almost always save you money in the long run.  This comes in the form of reduced traffic and court fines, less or no points on your license, and, most importantly, minimized or no impact on your insurance rate.
Most of the time J. John Sebastian will arrange for a reduction to a non-moving violation with no points against your driving record.  In tougher cases where an acccident is involved or the client has multiple prior convictions a reduction is still possible saving you points and fines.

Call J. John Sebastian NOW  716-254-1751  for a free consultation if you have a moving violation and are thinking of just pleading guilty

Buffalo Area Assault Lawyer

Have you been charged in the Buffalo area or Erie and Niagara Counties with a violent crime?  J. John Sebastian defends clients who have been charged with:
  • Assault 1st, 2nd and 3rd Degrees
  • Assault with a Deadly Weapon
  • Assaulting or Resisting a Police Officer
  • Assault with an Automobile
  • Assault of a Spouse
  • Murder and Manslaughter
  • Robbery(Armed or Strong Arm)
  • Attempted Murder
  • All other crimes of violence
It is critical that you hire an attorney, like J. John Sebastian, who has extensive experience as a prosecutor and a defense attorney, to obtain the best possible outcome in your case.  Many possible defenses exist for someone charged with a crime of violence, such as defense of self or defense of others.  Only an experienced criminal law attorney can accurately determine if a defense applies to your case. 

The consequences of being convicted of a crime of violence can be devastating.  Possible consequences may include:
  • Jail or prison
  • Fines and fees
  • Money restitution to the alleged victim
  • Protective orders imposed on you
  • Loss of your right to own a gun
If you have been charged with any crime of violence in the Buffalo area, call the Law Office of J. John Sebastian today for a no-cost, no-obligation consultation.

Sunday, February 17, 2013

Buffalo Area Automobile Accident Lawyer

Automobile accidents are one of the leading causes of accidental injury in the  Buffalo NY area. Each year, people are killed in motor vehicle crashes and many are injured.
These crashes are frequently caused by the negligence of other drivers, leading to their own death or injury as well as those of innocent victims. 

Negligence is one of the primary causes of most automobile accidents. Negligent acts occur when a driver causing an accident does not exercise a reasonable standard of care. For example, he was driving too fast or too slowly for the conditions. Or driving  distracted. Perhaps he  ignored traffic signals or conditions. There are many areas in which negligence can occur but negligence is a failure to be careful rather than an act intended to cause harm.

 A person who is distracted and rear-ends another vehicle  is negligent.
Intentional misconduct, on the other hand, is an action committed when the person knew that his actions could cause harm and did not care, or actively desired to harm others. A driver who drives at a high rate of speed, cutting in and out of traffic, may be intentionally putting himself and others at risk.
The law of strict liability could apply in some circumstances and neither negligence nor intent would need to be shown. Another cause of auto accidents is product failure. The Firestone tire litigation is a good  example of product failure. In that case, a defect in the tire caused accidents beyond the control of drivers. The defects were not intentional but the manufacturer was responsible. A similar situation could exist if a repair to the car was done improperly and caused  in a crash. In some states, in the case of auto accidents caused by drunk drivers, the business or host who supplied the alcohol and allowed the driver to drive in an intoxicated condition could be found to have a liability in addition to the drunk driver.

If you or a loved one is in need of legal assistance, call J John Sebastian Law Office  or schedule a consultation and review. The initial consultation is free of charge, and if we agree to handle your case, we may work on a contingency fee basis, which means we get paid for our services only if there is a monetary recovery of funds. In many cases, a lawsuit or other claim must be filed before an applicable expiration date, known as a statute of limitations. Please call right away to ensure that you do not waive your right to possible compensation.

Buffalo Area Personal Injury Law

When a person is physically or emotionally injured, or their personal property is damaged or destroyed, it is whats known as  in law  a “Personal Injury”. The laws in NY covering personal injury allow the injured party to be compensated  for damages caused by someone else’s carelessness, negligence, recklessness, or intentional actions. Personal injury law is also known  “tort”  law.

States and the Federal government have enacted tort laws for the protection of citizens rights. Tort actions have three factors s: there must be a legal duty between the defendant (the one doing the wrong) and the plaintiff (the injured party); there must be a breach of that legal duty; and, damage must occur because of that breach. When all three elements exist  place, a personal injury, or tort, has occurred.

The laws of our society places demands on all citizens not to harm or damage  others. . Whenever someone else harms you or something that belongs to you, they become liable to answer to the tort laws governing the situation. Liability can be caused by intentional acts, torts, or by negligence.
 An intentional act is one designed to cause harm or injury. The person committing the act wants to harm you. A negligent act occurs when someone fails to take appropriate action and you are harmed as a result of that failure. For instance, if an angry person throws a brick through your car window, that is an intentional tort (it may also be a criminal action).

 On the other hand, if a careless driver runs into your car, that is a negligence tort. In the first case, the defendant wanted to cause an injury; in the second case, the defendant did not want to injure you but failed to take the appropriate action to stop an  injury. In both cases, the defendant had a duty not to injure you or your property, because our laws and society create that duty. The duty was breached by the intentional or negligent actions of the defendant, and damages to your person or property resulted.

If you have been injured or damaged by anther's actions call J John Sebastian for a free consultation today.

Friday, February 15, 2013

Sealing Criminal Records in Buffalo Area Courts under CPL 160.50 and 160.55

Buffalo City Court follow the laws set forth in the New York Criminal Procedure law in regards  to the sealing of records. 

Despite the confusion and abundant misinformation on the topic, it is a critical area of New York Criminal Law. After all the worst consequence to a criminal charge is usually  not jail, a fine or community service, but the criminal record that will usually  result. 

The following information reflects my understanding of what happens to charges when they are disposed of in New York State either by conviction , verdict or pea or by dismissal, (acquittal or dismissal, ACD)   


"Expungement" means that the record is actually taken out of the system.   "Sealing" means that the record exists, but that it is hidden from public view.   When a record is sealed at the Court level it means that the Court's file is stored at the Particular Courthouse where the sealing was ordered, and that there is also an electronic record there of the case, but neither the actual file nor the computer record is available to the general public.

Under New York CPL 160.50, there is a combination of sealing and expungement  with regards to a defendant's criminal criminal record. The fingerprints, photographs and arrest records are supposed to be destroyed (expunged) at the police level, but the Court Records are neither destroyed nor returned, Instead, under CPL 160.50 they are sealed at the Court level and are also sealed in Albany, New York.  But even Albany maintains a  special electronic file of the arrest which is not disclosed except under very special circumstances.

What Records can be sealed in New York?

In New York State, a record of a criminal conviction, of  any misdemeanor or felony except a youthful offender adjudication, is never sealed and is considered a public record available to anyone through the OCA website for a $55 fee. Even  if the person had the charge reduced from a felony to a misdemeanor or only received probation.  There are no exceptions to this general  rule.

In New York, the only records that get sealed are complete dismissals including: 

ACD's  other forms of dismissal and Acquittals, these get the full seal treatment of CPL 160.50.  Also, charges that are reduced from a misdemeanor or felony to a violation or infraction get the partial seal treatment of CPL 160.55.

 The Law Office of J. John Sebastian


Thursday, February 14, 2013

Penal Law"240.20" aka "Disorderly Conduct"

As a Buffalo Area Criminal Defense lawyer, I am frequently explaining to clients the "popular" Penal Law"240.20" aka disorderly conduct. It is a violation, not a crime and will result in a sealing under 160.55   But It is important to point out  that a sealing under 160.55 does not seal the Buffalo City Court file, just the BPD arrest records. 

 If the original charge was a misdemeanor, this original charge that was reduced to a 240.20 might be accessible to background checkers and even the public at large
So, oftentimes, clients who are offered the 240.20 in the Buffalo Area Courts opt to try to get a further reduction to an ACD which results in a full sealing under CPL 160.50.

The New York PL 240.20 Disorderly Conduct Statute says that a violation  occurs when:
  a person, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof: engages in one or more of the following activities:

1. fighting or engaging in violent, tumultuous or threatening

2.making unreasonable noise;

3. using abusive or obscene language, or making
obscene gesture in a public place;

4. disturbing any lawful assembly or
meeting of persons without lawful authority;

5. obstructing vehicular or pedestrian traffic;

6. congregates with other persons in a public place and refuses to
comply with a lawful order of the police to disperse;

7. creating a hazardous or physically offensive condition by any act
which serves no legitimate purpose.

When charged with a misdemeanor in The Buffalo Area, it is often very tempting to accept the 240.20 Disorderly Conduct when and if it is offered by the DA . Because  the 240.20, unlike a misdemeanor, is not a crime but just a violation which means that it will not create a criminal record. It means that a person (assuming they have no prior criminal convictions) does not have to answer yes  to the question of whether they have ever been convicted of a crime in the state of NY.

Manhattan DWI attorney sues for breathalyzer maintenance records, claiming broken machines are put back in service

Adam Perlmutter made a Freedom of Information Law request for the city documents, which was initially denied because it would 'interfere' with law enforcement. A man had been previously acquitted for driving while intoxicted after a broken machine was found to be put back into service, Perlmutter said.


New York State's penalties on driving while intoxicated vary depending on the level of intoxication, the age of the driver and passengers, location of offense and prior convictions. But various types of conduct can actually get you charged with a DWI, even if you were not driving a vehicle at the time you were stopped by police.
New York DWI laws include the "common law" theory, which is based on police observation of impairment, and the "statutory DWI charge," which occurs when a test is administered to determine that a driver's blood alcohol content is above the legal limit of .08. Police determine blood alcohol content levels through either a Breathalyzer, urine, blood or saliva test. Refusing a BAC test usually results in a revoked license.

Driving Stopped and Sleeping Arrested for DWI

In October, a defendant  was arrested for driving while intoxicated after New York State troopers found him asleep behind the wheel of his running car. The police noticed his  vehicle was only partially parked and was blocking the traffic lane.
Upon finding the driver, the police reported smelling alcohol. He was charged with a felony DWI due to his previous DWI conviction in the past ten years. He faces a potential maximum sentence of four years in jail.
In this case, the DWI defense attorney might argue that the driver was not "operating" his vehicle but sleeping in it. But while the exact definition of "driving" or "operating" a vehicle is arguable within DWI laws, most courts have ruled that a conscious person sitting behind the wheel with the keys in the ignition is in operation of or intends to operate the vehicle.

Other Scenarios Where Drivers Might Be Charged with DWI

In most cases, if a driver has control of a vehicle's keys and is in or around the car, courts have ruled that the driver is, by law, operating the vehicle. But in some other states, courts have dismissed a DWI charge after the driver was proved to have not been driving on the "roads and highways" included in the language of the law, but on ditches, frozen lakes, parking lots and driveways.
Drivers who drive at or below the legal limit can still be charged with a drunk driving offense. New York law states that drivers with a BAC of .05 to .07 are below the legal limit, but are guilty of driving while alcohol impaired or DWAI.
Drivers under age 21 will be charged with DWI if found to have any traces of alcohol in their system while driving, known as the Zero Tolerance Law.
If you have been arrested or charged with DWI or a drunk driving offense in the Buffalo Area of New York State, contact an experienced DWI attorney, J John Sebastian.

Buffalo NY Area Promoting Prostitution Charges

An experienced Buffalo Criminal  Lawyer will tell you that the sex crime of Promoting Prostitution takes place when a person benefits and profits from prostitution, but is neither the person acting as the prostitute or employing  a prostitute. The crime of Promoting Prostitution involves:
  • Receiving money for arranging a prostitute for someone;
  • Soliciting a John for a prostitute;
  • Operating, managing or owning an establishment that was made for prostitution, and prostitution is practiced there;
  • Inducing someone to the life of prostitution (turning girls out).
If you have been charged with Promoting Prostitution or other Sex Crime , or battery, assault, Burglary or endangering the welfare of a child, speak with a qualified Buffalo Criminal Defense  Lawyer from our team today. The penalties you could be facing are serious, and can include jail time, large fines and probation.
In New York State , the Penal Law defines the laws related to Promoting Prostitution, which can be classified as either a misdemeanor or a felony, and punishable by 1 to 25 years in prison. There severity of the charge will depend on:
  • How many prostitutes are involved;
  • Whether force or coercion was used;
  • The age of the prostitutes involved.
Come in and speak with a Buffalo Criminal Defense Lawyer from the Law Office of J John Sebastian for legal guidance.

J. John Sebastian, Attorney and Counsellor at Law
Former Assistant District Attorney

Wednesday, February 13, 2013

Buffalo NY Area Suspended Driver License Lawyer

A Buffalo NY Area  Drivers License Suspension Lawyer can explain that in the State of New York, most people are not aware that driving with a suspended license is a crime . Under New York Vehicle and Traffic Law, section 511, d driving with a suspended license can be a felony offense. It is common , for people to not be aware that they are driving on a suspended license, often until they are arrested.

. Often this problem occurs because someone received a moving violation . If the driver fails to respond to the ticket, and  fails to go to court, or goes to court and is found guilty and does not pay the fine, their license can be suspended. While the DMV normally sends a warning letter informing the driver of a pending suspension, if they do not rget  the letter, they will be unaware of the problem. If you have had your license suspended, it is important to take prompt action and speak with a Buffalo Criminal Lawyer from our team today.
The District Attorney looks at  the number of suspensions to decide on the level of the criminal charge. If a driver has received four tickets for example, , each ticket is a suspension. A 4 suspension can result in a misdemeanor charge, which can mean 30 days in jail . If you receive 10 suspensions, you can be charged with a felony offense. Another way to receive a Driver’s License Suspension is to receive 11 points on your license with 18 months for moving violations.
If you have had your driver’s license suspended, speak with a skilled Buffalo NY area Diver’s License Suspension Lawyer from J John Sebastian Law Offices  We will explain the charges against you, and provide you with a complimentary case evaluation with your first visit.

Buffalo Area Credit Card Fraud Lawyer

According to theFTC, Credit Card Fraud affects over7 million people annually. A Buffalo Area  Credit Card Fraud Lawyer can explain that these charges are usually  prosecuted. As the use of computers  increased in  the recent past, these crimes are more prevalent than ever. The District Attorney is aware of this, and aggressively prosecutes these crimes. It is important to speak with a Buffalo Area Criminal Fraud Lawyer  for guidance.
The crime of Credit Card Fraud includes a variety of crimes that involve the fraudulent use or theft of a credit card. This offense usually occurs when someone else’s card is used to make a purchase. This crime is closely linked to Computer Fraud, because often the use of the internet is usually  involved. Credit Card Fraud can also be linked to Mail Fraud and Bank Fraud.
Credit Card Fraud can include:
  • Using a credit card without the owners consent
  • Stealing a credit card from the owner
  • Acquiring a credit card thru the mail
  • Manufacturing fake credit cards
  • Purposefully misrepresenting information on a credit application
  • Creating a fraudulent website to access credit card information
You do not have to be physically in possession of the credit card to be charged with Credit Card Fraud. The use of the credit card information is enough to commit this crime, over one-half of all online Credit Card Fraud is committed by only using the numbers.
The penalties if you are convicted of this crime can include prison time that ranges from 10-20 years, and financial retribution. Speak with a qualified Buffalo Area Criminal Lawyer from the Law Offices of J John Sebastian  for guidance. We will explain the charges against you and answer the many questions you likely have. We will provide you with a free consultation with your first visit.

J. John Sebastian, Attorney and Counsellor at Law
Former Assistant District Attorney

Tuesday, February 12, 2013

Caught With Prescription Pills in The Buffalo Area: What should I do?

Prescription pill abuse has been rising in recent years.  With the pills somewhat easy to get—, taken from family or friends, or bought from  street dealers—deaths and overdoses have continued to rise.  Emergency room visits in Buffalo NY jumped 86% from 2004 to 2010, as the abuse of prescription drugs such as Xanax, Valium, and Adderall  has increased. .

Controlled substances (such as Hydrocodon) and narcotics (like many prescription medications, including OxyContin) are considered to be very  dangerous for users.  Therefore, these drugs often have more serious consequences if you are caught using them without a proper  prescription or selling them to others.
What should I do if I’m caught with prescription pills in the Buffalo Area?
  •   Many prescription drug crimes are considered felonies and can lead to  fines and  jail time.  You will need to get in touch with a criminal defense lawyer with expertise in handling prescription drug cases.
  • Even if you didn’t have a lot of pills in your possession, you can still be charged with possession of a drug without a doctor’s prescription.  Don’t think that just because you had a few pills that you won’t be in any trouble.
  • If you are dealing with addiction, some type of drug court or drug rehab program may be available to you.  Your attorney will help determine if you are eligible for these drug court programs.
  • It is important that you receive counsel from an experienced criminal defense lawyer.  They will help you understand the legal procedures you must go through, look at the evidence against you, advise you in possible programs or plea deals you can take, and represent you should you go to trial.
Don’t try to go through this alone. .  Have questions?  Need help?  Call Buffalo Area Criminal Lawyer J John Sebastian today!

Cocaine Charges in The Buffalo Area: What You Need to Know

Cocaine Charges in The Buffalo Area: What You Need to Know

Being charged with cocaine possession or sale may lead to  jail time and thousands of dollars in fines.  Get the facts on what can happen if you are charged with the possession or sale of cocaine in Buffalo New York.
-Being charged with cocaine possession can be a serious  offense.  Cocaine is considered a scheduled narcotic, which means that its use and distribution are  controlled because the drug presents a potential of abuse, addiction and other health risks.
-If you are arrested with less than 500 mg of cocaine, it carries a penalty of up to one year in jail, 3years probation or a  $1000 fine. Possession of over 500 mg can lead to 2 years in prison, unless it is your second offense, which would make you eligible for up to 4 years.  Jail and prison sentence lengths continue to increase in relation  to  the amount of cocaine you are caught with and your previous criminal history.
-Selling cocaine also has serious consequences, with sentences ranging from 1 year, up to 9 years for a first time offender.  For those with previous arrest records or violent offenses on their record, the sentences go up to 20 years in jail.
New York State has some of the toughest and most confusing drug laws in the country.  Having experienced legal representation is vital to making sure that your case is heard from all angles.  A good lawyer can represent you in court, negotiate a plea deal, advise you on which actions to take, and provide the emotional support and guidance you’ll need while going through the court system.
Call J John Sebastian for a free consultation.

Monday, February 11, 2013

Buffalo Club Drugs & the Law

Buffalo Club Drugs & the Law

“Club drugs” are known as the main drugs that are found in late-night Buffalo area clubs and bars.  These powerful drugs contain mixtures of chemicals that are unregulated by the government and therefore lack  quality.  These drugs can lead to  overdoses, or even death.  Legally speaking, drugs such as LSD, MDMA (ecstasy), GHB, Ketamine (Special K), Rohypnol (Rophies), and Methamphetamine (speed), all carry grave consequences if you are arrested for possessing or selling them.

I just have a few pills—that can’t get me into trouble!
Think again.  Just possessing one tablet of speed or special K or ectasy can get you charged with Criminal Possession of a Controlled Substance, a misdemeanor that can land you in jail.  Even trying to sell or trade a single tablet of ecstasy could get you  a felony.  Possession of club drugs can cost you thousands in court fines and years in jail time—they are very  serious.

I think I might have a drug addiction—what should  I do?
Club drugs can be very addicting.  If you are arrested for possession of one of the many club drugs, there might be an option of attending a drug  court.  This option may only be available for first-time offenders and those possessing only a small quantitiesof the drug.  It is important to work with a criminal defense lawyer that can help determine whether you would be eligible for this alternative.

Do I really need to get a lawyer?
Yes, absolutely!  Whether you plan on pleading guilty or taking it all the way to trial, an experienced criminal defense lawyer can help advise you of your rights.

As with any arrest, having experienced legal representation can make a huge difference as to  your sentence is and whether you even need to go to trial.  .

Need help?  Have questions?  Call J John Sebastian Attorney at Law today.

Sunday, February 10, 2013

Arrested for Heroin Possession in The Buffalo Area? What to Expect

Heroin use in the Buffalo area has grown  in very  recent years.  Highly addictive and inexpensive  to buy, it has become the drug of choice for many people.  If you have been charged  and are facing heroin charges in the Buffalo Area, there are some important facts to keep in mind regarding your case.

First of all, New York state  has some of the toughest and most complex  laws regarding the sale and possession of heroin.  It is important that you find a criminal defense lawyer with the experience needed to guide your case through the courts.   Don’t try to attempt to navigate this on your own.

 A good lawyer can be the difference in receiving a lesser  sentence than what you could have received.
Secondly, your sentence, if found guilty,  will be based on a lot of different issues  from your case.  Your previous criminal history, how much heroin was in your possession, and if you were selling it, — all contribute to what sentence you will get  Be certain you have all the advantages afforded to you by the law.  All cases have their own individual circumstances and needs, make sure your lawyer is aware of all aspects of your situation.

In the Buffalo area,  most people strike a plea agreement in order to avoid trial, in fact, most heroin cases never go to trial.  Your lawyer will fight to win you the best plea deal available, helping you avoid trial and further costs associated with it, while also most likely getting you a reduced sentence. Don’t take chances with your future—make sure you have a criminal defense lawyer that understands how the system works, how to negotiate pleas, and has an extensive knowledge of the law.

Call J John Sebastian for a free consult.

J. John Sebastian, Attorney and Counsellor at Law
Former Assistant District Attorney

Charged with Domestic Violence: Do I Need a Buffalo Area Attorney?

In Erie County NY , domestic violence is a serious crime.  No matter how small  the injuries to either party might be, an arrest, charge, or conviction for domestic violence can have far reaching consequences for anyone accused of the crime in the Buffalo area.   A person can be convicted of domestic violence not just against a spouse, but against anyone with whom the person lives with or has a child.  The individuals involved do not have to be of the opposite gender or even related, nor do the pair have to be romantically involved.  In fact, even a college student living with roommates can be arrested for and convicted of domestic violence if he or she is ever violent toward those roommates.

The Facts Make a Difference

The law is something that is very situation  specific.   The circumstances surrounding each accusation will also be taken into consideration and weighed by the court in determining guilt .  Despite the fact that defendants are welcome to go pro se in court, anyone facing the serious charge of domestic violence is highly encouraged to let an experienced attorney handle all aspects of the defense.  Attorneys are experienced and trained at presenting legally good  arguments to the court that laymen may not realize they can argue in their defense. 

For example, what if the defendant acts in self-defense?  Or walks in on a shocking scene that would shock most reasonable people?  Or acts under a mistaken belief of facts?  All of these questions and more represent the many nuances of criminal law that can weigh factor  on the outcome of a charge for domestic violence.
Another plus  of partnering with an attorney to defend against charges of domestic violence is that the attorney will be able to explain any of the questions that a defendant might have about the criminal process, chances of success, and the charges involved in non-legal, simple to understand terms.

If you have been charged with DV call J John Sebastian Attorney at Law for a free consultation today.

Buffalo Area Parole Violation Lawyer

Costs of Incarceration Is High

When a person is on parole, it means that he or she has been freed  from prison and is being allowed to serve out the rest of his or her sentence outside of prison, as a normal  member of society.  There are several situations where a person may be sentenced to parole, but the big picture comes down to money.  There is  not enough space in our prison to monitor criminal violators   That’s why first time and nonviolent offenders, as well as certain low to mid-level offenders who have already served big  portions of a prison sentence , may be sentenced to parole.

Out of Prison but Not Really Free

While granted  more freedom than the person would have had in prison, the person is not  free in that the state will maintain strict conditions that must be met in order for the person to remain out of prison.  Violation of these conditions can get the person sent right back to prison and facing a whole new set of charges.  There are several conditions that apply to just about every person person paroled in New York state , but the court has the right to set additional conditions, depending on the type of crime which the person was found guilty of.  For example, a drug violator may be ordered not to have contact with persons known to the person to use drugs, while a person convicted of computer crimes may be ordered not to use a computer.  In New York, each person released on parole is assigned a parole officer responsible for supervising the parolee.  If that officer receives information and has evidence that a person may have violated the terms of his or her parole, the officer can request the issuance of a parole violation warrant, and the parolee becomes a wanted person.

Accused of a Parole Violation

Following an arrest for a parole violation, the parolee will l feel scared and confused.  An arresting officer may or may not be able to offer further details surrounding the reason for the warrant, and the parolee may not know exactly why the warrant was issued until after being processed and speaking with an assigned parole officer.  Parolees arrested for violating the terms of their parole are urged not to make any comments to law enforcement until sound legal counsel has been obtained.
Once a warrant of any type has been issued in New York, there is nothing  that the subject of that warrant can say or do that would convince a New York law enforcement officer to let the person go.  Upon being informed by police that a warrant is active, the subject of that warrant should comply with all orders and should never argue with officers, as this will only fuel a prosecutorial fire.  Compliance does not include answering questions – a person can comply with orders without saying a word, which is what anyone arrested for a parole violation in New York should do.

As soon as the person is able to get a phone call, they should contact an experienced criminal defense lawyer who can advise them hoe to proceed.
J. John Sebastian, Attorney and Counsellor at Law
Former Assistant District Attorney

Saturday, February 9, 2013

Traffic Tickets and DMV Points

We handle all traffic tickets in Erie County including those heard in the local town and village courts. Call our office 24 hours, 7 days a week for a free consultation.
  • Speeding
  • Driving with a Suspended/Revoked License
  • Reckless Driving
  • Uninsured Motor vehicle
  • Redlights, Stop-signs
While a traffic ticket may seem to be a simple matter, be cautious! Simply paying the ticket does not put the matter behind you. The Department of Motor Vehicles may assess points to your license resulting is higher insurance rates or in some cases even LOSING YOUR LICENSE. While the points may only last a short time, the insurance rate increase may last longer.

Violation Points
Speeding (MPH over speed limit not indicated) 3
Speeding (MPH over speed limit)  
1 - 10 MPH 3
11 - 20 MPH 4
21 - 30 MPH 6
31 - 40 MPH 8
More than 40 MPH 11
Following too closely 4
Passing improperly, changing lanes unsafely, driving to the left of center, driving in the wrong direction 3
Failed to obey a traffic signal, a Stop sign, or a Yield sign 3
Railroad crossing violation 3
Failed to yield the right-of-way 3
Passenger safety violation, including seat belts, child safety seats, or passengers under the age of 16 3
Reckless driving 5
Left the scene of an accident that includes property damage or the injury of a domestic animal 3
Inadequate brakes (vehicle of an employer) 2
Inadequate brakes 4
Other moving violations 2
Failed to stop for a school bus 5
If you receive 11 points or more in 18 months, the DMV suspends your driver license. You can request a DMV hearing only to show that a different person committed the violations. You cannot request a DMV hearing to prove that you were not guilty of the violations. You cannot request a DMV hearing to request a waiver of the suspension.

 J. John Sebastian, Attorney

DWI Conviction and the Conditional License

The DMV can issue a conditional license to a driver who qualifies and who has a NYS license that is suspended or revoked because of an alcohol or drug-related violation. The driver must attend a Drinking Driver Program (DDP) approved by the DMV. If you qualify, the DMV sends instructions about how to enroll in the DDP with your suspension or revocation notice. The DMV decides if you qualify under the law and notifies you. You cannot qualify for a conditional license if:
  • the judge who convicted you does not allow you to attend a DDP or receive a conditional license, or
  • you do not have a valid NYS license or a NYS license that can be renewed, or
  • you attended a Drinking Driver Program during the last five years, or
  • you had another alcohol or drug-related violation during the last five years.
If you have a driver license issued in another state, and you meet the other requirements, you can receive a conditional driving privilege or a restricted driving privilege to drive in NYS. The conditions or the restrictions are the same as the conditions or restrictions for a driver with a NYS driver license.
If you receive a conditional license, it is valid to drive only:
  • to and from work, and during work if driving is part of your job.
  • to and from a class at an accredited school or college.
  • to transport your child to and from a child care facility or school when necessary to maintain your employment.
  • to and from DDP classes and any required evaluation or treatment.
  • to and from a state or county motor vehicle office for business related to your conditional license
  • to and from court-ordered probation activities.
  • to and from medical examinations or treatment for you or a member of your family, as certified in writing by a physician.
  • during the three-hour weekly period listed on your conditional license attachment.
The cost for a conditional license is $75. If you were issued a pre-conviction conditional license, there is no additional fee.
 J. John Sebastian, Attorney

DWI Suspension Pending Prosecution

At your arraignment for DWI, the Court will suspend your license or privilege to drive in New York State pending prosecution for the charges, if there is evidence you were driving with a blood alcohol content (BAC) of .08% or higher. You are eligible to apply for a Conditional License after 30 days of Suspension Pending Prosecution.
Under certain circumstances the Judge may suspend your license or driving privileges as a matter of discretion pursuant to New York State Vehicle and Traffic Law Section 510.3. In this case, you are not eligible for a conditional license.

J. John Sebastian, Attorney

Friday, February 8, 2013

Hardship License When Charged With DWI

 Hardship License When Charged With DWI

Where a driver’s BAC is .08% or greater, the  court may grant a hardship hearing based upon the application of the defendant if the suspension would result in “extreme hardship” to the individual. The statute, VTL 1193, states that “extreme hardship” is the inability to obtain alternate means of travel to or from the licensee’s employment, or to or from necessary medical treatment for the licensee or member of the licensee’s household, or if the licensee is a matriculating student enrolled in an accredited school, college, or university travel to or from such licensee’s school, college or university if such travel is necessary for the completion of the educational degree or certificate.

 The burden of proof extreme hardship falls upon the defendant and may not be based on the testimony of the licensee alone. So, you must bring in some additional type of evidence. Generally this evidence can be a bus schedule, train schedule, fares from a local taxi company, letter from an employer, work schedule, testimony of a friend, co-worker or relative.

If the Judge grants a hardship license, the motorist will only be permitted to operate a motor vehicle for travel to or from employment, necessary doctor’s appointments or school. The locations and addresses of permitted driving will be specifically listed on the hardship license. However, you may not operate a motor vehicle during work, only to and from the job site.

J John Sebastian Attorney


Medical Testimony Can Be the Key in Criminal Defense Cases*

What may seem like an open and shut case on the surface can have surprising results, especially once all of the facts are presented. Take for instance a recent case in which the defendant was charged with vehicular homicide after he and a co-worker were involved in a car accident resulting in the co-worker's death.
Both the defendant, who was driving the work truck, and the co-worker, who was sitting in the passenger seat, had been drinking prior to the accident. The defendant lost control of the vehicle and hit a tree. On the surface, someone might assume that the passenger's death occurred because the driver had been drinking and caused the accident - or in legal parlance, but for the defendant operating a motor vehicle after consuming alcohol, the accident would not have happened and the victim would still be alive.
However, this would be a premature conclusion. What actually happened in this case is that the victim's death was attributable to his own negligence because his death was caused by crush injuries sustained after the cargo that he improperly secured shifted during the accident. But the criminal defense attorney in this case had to jump through several legal hoops to get evidence of the victim's negligence admitted at trial.

New York's Dead Man's Statute and Expert Witness Evidentiary Rules

Proving that the cause of the victim's death was attributable to his failure to correctly secure the cargo rather than the driver's intoxication could have presented a special problem under New York's rules of evidence.
The only two people in the car, and quite possibly the only two witnesses to the victim improperly securing the cargo, were the defendant and the victim. Under New York's "Dead Man's Statute" (CPLR §4519), personal transactions or communications with a person who has since died or become incapacitated (for example, in a coma or otherwise unable to communicate) cannot be used at trial by an interested party.
In this case, that would preclude the defendant (the driver of the truck) from testifying in court to anything the victim said while loading the truck or before the accident that might help prove the driver was not liable for the victim's death. In order for such testimony to be admissible at trial, a third party, or disinterested party, would have had to witness the conversation in order to testify about it before the court.

However, under an important exception to the Dead Man's Statute, the driver may have been able to testify to the deceased victim's actions. The exception permits otherwise interested witnesses, in this case the defendant driver, to testify to the facts of an accident resulting from the negligent operation of a motor vehicle. So in this case, the driver may have been able to testify that he witnessed the passenger load the cargo. But just witnessing the victim loading the cargo would not necessarily exculpate the defendant.
So how to prove the driver was not at-fault for the victim's death?

In this particular case, medical expert witness testimony was the best defense to prove the driver was not guilty of vehicular homicide. During the trial, a medical expert witness testified that the fatal injury causing the victim's death was not caused by frontal trauma to the head from the impact with the tree. Instead, the fatal injury was caused by blunt force trauma to the back of the head, consistent with the impact of the shifting cargo load.

Under New York's Rules of Evidence, the medical expert was unable to directly testify that the victim's cause of death was not the result of the driver's intoxication. Evidentiary rules prevent expert witnesses from basing their opinions on speculation and conjecture - their testimony only can be based on fact.

Generally, the rules of evidence also prohibit witnesses from stating an opinion on an ultimate issue of fact - or, in other words, from giving an opinion on an issue the jury is responsible for deciding. In this case, that would be whether the victim's death was attributable to vehicular homicide committed by the defendant.
Again, this would prevent the medical expert from testifying affirmatively that the defendant was not responsible for the victim's death. Instead, the medical expert testified as to his opinion of the victim's cause of death based on medical evidence, which showed his death was caused by the crush injuries from the truck's shifting cargo.

Expert testimony, particularly medical expert testimony, often is a vital component in criminal defense cases. The rules of evidence place many restrictions on what a witness may or may not testify to, which can complicate cases and make it that much harder to present evidence to the jury.
An attorney experienced in handling criminal defense cases understands when expert testimony should be used and how it may help your case. For more information on defending against criminal charges, contact J John Sebastian today.

Wednesday, February 6, 2013


One possible means of getting a criminal charge dismissed in New York is to have your lawyer prepare a motion to dismiss for facial insufficiency.   A complaint is facially insufficient when it fails to allege all of the elements of the charge with non-hearsay factual allegations.

Unfortunately, prosecutors often use time-tested boilerplate language when drafting criminal complaints.  The boilerplate language usually contains the elements necessary to withstand a facial sufficiency challenge to the complaint and this makes getting these motions granted difficult.  But
nevertheless, a motion to dismiss is often it is worth a try.   but it requires a keen experienced eye of a good criminal defense lawyer to be able to point out a deficiency in a complaint.

For example, below is actual text from a motion to dismiss a trespassing charge  on grounds of facially insufficiency:
  1. "An information is facially sufficient if it contains facts of an evidentiary character tending to support the charges. Criminal Procedure Law § 100.15(3); People v. Dumas, 68 N.Y.2d 729, 497 N.E.2d 686, 506 N.Y.S.2d 319 (1986). Furthermore, the information must contain non-hearsay allegations which, if true, establish every element of the offense charged and defendant's commission thereof. CPL § 100.40(1)(b),(2). An information which fails to satisfy these requirements is fatally defective. People v. Alejandro, 70 N.Y.2d 133, 139, 511 N.E.2d 71, 517 N.Y.S.2d 927 (1980).   People v. Guzman, 2004 NY Slip Op 24486, 3 (N.Y. Misc. 2004)
  2. In People v. Moore, 5 N.Y.3d 725, (N.Y. 2005) The Court held that an information would not be facially sufficient with regards to trespass in the third degree, under 140.10(a) unless the information contained non-hearsay factual allegations that the person:
    1) knowingly entered or remained unlawfully in a building or upon real property which was
    2) fenced or otherwise enclosed in a manner designed to exclude intruders" (Penal Law § 140.10 (a). Id.
  3. In Moore, the Court of Appeals upheld the dismissal for facial insufficiency of an information which charged a violation of Penal Law 140.10(a).  While the Information in Moore satisfied the first element in that it alleged that the defendant entered a public building located on the campus of the State University of New York at Buffalo on September 4, 2002 in violation of a “person non grata" letter, it did not allege that the building was enclosed.  Moore at 726.
  4. In Moore, the Court held the Information to be facially insufficient, stating::

"[A]n information which fails to contain nonhearsay allegations establishing 'if true, every element of the offense charged and the defendant's commission thereof' … is fatally defective" (People v Alejandro, 70 N.Y.2d 133, 136, 511 N.E.2d 71, 517 N.Y.S.2d 927 [1987] [internal citation omitted]). Since the information and supporting deposition here fail to allege facts establishing that the campus building defendant entered into was in any way "fenced or otherwise enclosed in a manner designed to exclude intruders" (Penal Law § 140.10 [a])--a required element of the crime--it was insufficient to establish criminal trespass in the third degree (see CPL 100.15 [3]; 100.40 [1] [c]). Thus, the information was properly dismissed as facially insufficient.

People v. Moore, 5 N.Y.3d 725, 727 (N.Y. 2005)


  1. The Moore Decision was followed by the Appellate Term for the First Department in People v. Courtney, 2007 NY Slip Op 51000U, 1 (N.Y. App. Term 2007) where the Court held that:
    1. The informations charging defendants with criminal trespass in the third degree were properly dismissed as facially insufficient, since they failed to allege facts establishing that the plaza area at issue was "fenced or otherwise enclosed in a manner designed to exclude intruders" (Penal Law § 140.10[a]; see People v Moore, 5 NY3d 725, 727, 833 N.E.2d 192, 800 N.Y.S.2d 49 [2005]). The unadorned description of the area in which defendants are said to have trespassed as an "enclosed plaza" served merely to track the general language of the statute, without adding "facts of an evidentiary character supporting or tending to support the charge[]" (CPL 100.50[3]; see People v Alejandro, 70 N.Y.2d 133, 511 N.E.2d 71, 517 N.Y.S.2d 927 [1987]).

      People v. Courtney, 2007 NY Slip Op 51000U, 1 (N.Y. App. Term 2007)
 In the instant case, the information fails to establish that the Courtyard was in any way fenced or enclosed in a manner designed to exclude intruders.  Thus, on the authority of Moore, Supra and its progeny, the information should be dismissed on grounds that it is facially insufficient.

J John Sebastian Buffalo NY Attorney

Buffalo Area Petit Larceny Lawyer

The crime of Petiit Larceny (Penal Law Section 155.25) is defined as the theft of a good or service that has a value less than $1,000. Any crime that involves a theft over $1,000. is considered grand larceny This crime is one of the most commonly committed crimes in New York. Shoplifting is a form of Petit Larceny, which is committed by teenagers and adults alike.

. The District Attorney refers to Petit Larceny as a quality of life crime.
There is a civil statute that allows the victim of a Theft Crime to sue the perpetrator for up to five times the value of the merchandise stolen. This would be a separate action over and above a criminal charge. If you are arrested in a retail store for Petit Larceny, the security officer may tell you that you will have to sign a confession in order to be released from their custody. They are legally allowed to hold you until the police arrive on the scene.

 They cannot however, make you sign a confession if you don’t want to. They also may tell you that they have you on video tape committing the crime. This may or may not be true. If you find yourself in this situation, tell security that you want to speak with your  Lawyer right away. When the police arrive, sign nothing, and insist that you speak with your lawyer. Your Buffalo petit Larceny Lawyer  J John Sebastian will be able to obtain the facts, and any relevant evidence, including a video tape, if there is one. The main point to remember in this instance is not to sign anything.
If you have been arrested with others, you will likely be separated. They may even say that your friend has confessed, and now you should too. This is a common police tactic. It is important as with the scenario above to not confess to anything, and contact your Buffalo Lawyer J John Sebastian at your first opportunity.

Buffalo Area Cocaine Possession Lawyer

In New York, Illegal Possession of a Controlled Substance is a very serious offense. One of the most commonly possessed drugs is cocaine. New York has some of the harshest drug laws in the U.S. Possession of a Controlled Substance in any quantity is considered an A Misdemeanor. The penalty for an A misdemeanor offense is a maximum of one year in jail, in addition to monetary fines and probation.

If the amount of the drug is more than 500 mgs, the crime goes up to a D felony. A felony is punishable by at least one year in jail or more. If the amount of cocaine is higher than 1/8 ounces, the crime is considered a C felony. The higher the quantity of drugs, the more severe the offense you will face. Two ounces of Cocaine is considered an A II Felony, and over 4 ounces is an A I Felony. If you have been charged with Cocaine Possession or other serious crime such as robbery, white collar crime  speak with a Buffalo Cocaine Possession Lawyer , J John Sebastian It is important to ensure that your rights are protected at all stages of your legal proceedings.

Buffalo Marijuana Possession

If you have been reading the news lately, you probably have noticed that there has been a lot of controversy surrounding the legalization of marijuana. Under the current law, Marijuana Possession (in small amounts) has been decriminalized. If a defendant in Buffalo NY is found to be in possession of 25 grams or less and is a first time, or second time offender, you can be charged with a violation.

 This means that while you will still be expected to address the matter and appear in court, it is not considered a crime. If you are found in possession of 25 grams or less in Buffalo NY and have more than two priors, or are caught burning it in public view (any amount), or possess over 35 grams but less than 2oz. you can be charged with a B misdemeanor offense. This can be punishable by up to three months incarceration, monetary fines and probation.

If you are in possession of more than 2 oz. but less than 8 oz.,in Buffalo you can be charged with an A misdemeanor. Being charged with Marijuana Possession can be a stressful experience. Depending on the quantities involved, you could be facing stiff penalties. Whether you have been charged with Marijuana Possession, Heroin Possession, a DWAI or DWI, we are here to help. Speak with J John Sebastian. for advice and legal support.

Tuesday, February 5, 2013

Felony vs. Misdemeanor

For those of you who have been or are currently charged with a crime you might be wondering what is the difference between a misdemeanor and a felony in New York State.  The main distinction between the two lies with the penalty and the length of imprisonment.  In New York a crime is a misdemeanor if it is punishable by no more than a year in the county jail.  While a crime is a felony if it punishable by more than a year in a state prison.

Some crimes can be either a misdemeanor or a felony depending on the severity of the offense or some aggravating characteristic.  For example, you could punch someone in the face causing an injury and be arrested for misdemeanor assault, but if you hit that same person over the head with a beer bottle causing an injury you could be arrested for felony assault based on the use of a weapon.  Another example would be larceny.  You would be charged with misdemeanor petit larceny if you steal property and the value of the property is less than $1000.00.  However if you steal property and the value of the property exceeds $1000.00 you will be charged with felony grand larceny.

The main similarity between a misdemeanor and a felony is that both are considered criminal convictions that will stay on your record indefinitely.  As of right now there is no expungement available in New York State.  So you could be convicted of a crime at the age of 19 and it will still be on your record 50 years later.  Further, a conviction of either crime can prevent you from owning a firearm or from working at schools or government agencies.

If you are facing criminal charges, whether it be a misdemeanor or a felony, you should speak with an experienced attorney.  An attorney can explain the penalties you could face if convicted of either crime.
***From the Law Blog of Danielle Papa

  J John Sebastian Attorney at Law is  here to help you through the criminal process.  If you have been accused of a felony or misdemeanor then you need to enlist the services of a criminal defense lawyer.

Why Hire a Local Buffalo Criminal Defense Attorney?

Most people will never set foot in a courtroom accused of a crime.  However, for some people infractions of the law occur, no matter how small, and you find yourself accused of a crime.  If this is you, don’t settle for a public defender that may not have the right experience to defend you well.  Hiring an attorney who has the right experience in the right location is a must.
Ask yourself these questions when considering which attorney to hire to defend your case:
1.       Is my case important to them?
A good lawyer should make you feel comfortable and confident that they are fully invested in your case and that they will do everything in their power to defend you.  You should be able to trust them with any and all details of your story with no hesitation.
2.       Is this attorney familiar with local laws?
Whether you live in the area where the crime was charged or not, finding an attorney in that area is crucial.  Local attorneys know the court system, prosecutors, and laws in the local area and have a much better chance of putting together a successful defense when they are working in their own part of the country.
3.       What is their track record related to your charge?
Would you hire a real estate attorney to defend your DWI or a tax lawyer to handle your divorce?  Of course not.  Find out if the attorney has actual experience with cases that deal with charges similar to yours and how successful they have been.
4.       Do they use appropriate language with you?
Having a language barrier can be a huge problem in the attorney/client relationship.  You should understand each other clearly and be able to communicate well.  Also, don’t settle for an attorney who uses too much “legalese” that is difficult for the average person to understand.
There are many more things to consider when hiring a criminal defense attorney to defend you in court, but these questions are a good start.
J John Sebastian Attorney at Law is an attorney who will pass these questions and more with flying colors.  Give his office a call and see for yourself what hiring the right attorney can do to change your life for the better.

Bail in NYS

After arrest, and during the first arraignment, the court will consider if Bail is appropriate. New York Criminal Penal Law (CPL) § 510.30 sets out the factors the court should consider when deliberating Bail, which are:
  • Character, reputation, habits and mental condition;
  • Employment and financial resources;
  • Family ties and the length of his or her residence in the community;
  • Criminal record;
  • Record or adjudication as a juvenile offender or youthful offender; and
  • Record of responding to court appearances.
The court will also consider:
  • The weight of the evidence against the accused in the pending criminal action and the likelihood of conviction; and
  • The sentence that may be imposed on conviction.
There are different types of Bail that can be posted, these include:
  • Cash bail;
  • Insurance company bail bond;
  • Secured surety bond;
  • Secured appearance bond;
  • Partially secured surety bond;
  • Partially secured appearance bond;
  • Unsecured surety bond; and
  • Unsecured appearance bond.
Courts are allowed to designate the amount of Bail without designating the form of Bail or a court can give alternate forms of Bail, judges have a lot of discretion. Although judges have this broad discretion setting Bail, their decisions can always be challenged with a writ of habeas corpus, that is, challenging the decision based on the assertion that a constitutional or statutory provision prohibiting excessive Bail has been violated. However, if there are new facts that might effect the first court’s decision on Bail, those facts must be presented to the original court prior to seeking appeal from a higher court for the habeas corpus.
Although the United States Constitution and the New York Constitution do not create the right to Bail, the right to Bail in New York is statutory. Further, the court must grant Bail or Release on own Recognizance (ROR) when the charge is simply a violation or misdemeanor.
Originally Posted by Michael Huerta***
J John Sebastian Attorney Buffalo NY

Monday, February 4, 2013

Vehicular Assault under New York Penal Law 120.03 and 120.04

Vehicular assault charges are usually added to felony or misdemeanor DWI complaints where there has been an injury to someone other than the driver of the vehicle as a result of an alcohol- or drug-related accident.  For example, in People v. Mojica, 62 A.D.3d 100, the defendant allegedly “drove a pickup truck through a red traffic light and struck a marked patrol car driven by a city police officer, Richard Poluzzi. Officer Poluzzi, who was removed from the scene by ambulance and transported to St. Francis Hospital, suffered head injuries and spent one month in an in-patient rehabilitation facility before returning to work six months after the accident, in January 2007.”
The elements of the basic charge, PL 120.03, are as follows:
§ 120.03 Vehicular assault in the second degree.
A  person  is guilty of vehicular assault in the second degree when he
or she causes serious physical injury to another person, and either:
(1) operates a motor vehicle in violation of subdivision  two,  three,
four  or  four-a of section eleven hundred ninety-two of the vehicle and
traffic law or operates a  vessel  or  public  vessel  in  violation  of
paragraph   (b),   (c),  (d)  or  (e)  of  subdivision  two  of  section
forty-nine-a of the navigation law, and as a result of such intoxication
or impairment by the use of a drug, or  by  the  combined  influence  of
drugs  or of alcohol and any drug or drugs, operates such motor vehicle,
vessel or public vessel in a manner that causes  such  serious  physical
injury to such other person, or
(2)  operates  a  motor  vehicle with a gross vehicle weight rating of
more  than  eighteen  thousand  pounds  which  contains  flammable  gas,
radioactive  materials  or explosives in violation of subdivision one of
section eleven hundred ninety-two of the vehicle and  traffic  law,  and
such  flammable gas, radioactive materials or explosives is the cause of
such serious physical injury, and as a result of such impairment by  the
use of alcohol, operates such motor vehicle in a manner that causes such
serious physical injury to such other person, or
(3) operates a snowmobile in violation of paragraph (b), (c) or (d) of
subdivision  one  of section 25.24 of the parks, recreation and historic
preservation law or operates  an  all  terrain  vehicle  as  defined  in
paragraph   (a)   of  subdivision  one  of  section  twenty-two  hundred
eighty-one  of  the  vehicle  and  traffic  law  and  in  violation   of
subdivision  two,  three,  four,  or  four-a  of  section eleven hundred
ninety-two of the vehicle and traffic law,  and  as  a  result  of  such
intoxication  or  impairment  by  the  use of a drug, or by the combined
influence of drugs or of alcohol and any drug or  drugs,  operates  such
snowmobile  or  all terrain vehicle in a manner that causes such serious
physical injury to such other person.
If it is established that the person  operating  such  motor  vehicle,
vessel,  public  vessel,  snowmobile  or all terrain vehicle caused such
serious physical injury while unlawfully intoxicated or impaired by  the
use  of  alcohol or a drug, then there shall be a rebuttable presumption
that, as a result of such intoxication  or  impairment  by  the  use  of
alcohol  or  a drug, or by the combined influence of drugs or of alcohol
and any drug or drugs, such person operated the motor  vehicle,  vessel,
public vessel, snowmobile or all terrain vehicle in a manner that caused
such serious physical injury, as required by this section.
Vehicular assault in the second degree is a class E felony.
The enhanced class D felony of Vehicular Assault in the First Degree requires first the commission of second-degree vehicular assault, but also requires the presence of at least one of 6 different “bump-up” circumstances, including (i) committing the crime after “blowing” a .18 or higher (Penal Law 120.04(1)); (ii) committing the crime with knowledge that your driver’s license is suspended (Penal Law 120.04(2)); (iii) committing the offense with a prior DWI on your record (Penal Law 120.04(3)); (iv) causing “serious physical injury” to another person (Penal Law 120.04(4)); (v) committing the offense with a prior homicide on your record (Penal Law 120.04(5));  or (vi) committing the offense with a child 15 years of age or younger as a passenger (Penal Law 120.04(6)).
One of the best strategies for defeating the charge at trial would seemingly be to challenge the DWI element.   Other strategies would probably entail challenging whether the injury was severe enough to constitute physical injury under the Penal Law definition.
If you or a loved one has been arrested for DWI or Vehicular Assault, your best bet will always be to consult with an experienced DWI lawyer before proceeding.

Arrest for a Fake NY State Driver’s License... by Sebastian Law Firm , 2012-11-30 07:11:51

This post will cover the a common type of arrest in New York City: underage people being caught with a fake ID or New York State Driver’s license.  Many young people in the greater New York City area carry a fake ID in order to get into bars before they are 21.  While this seems to be a fairly innocuous reason to carry a fake ID, the law in New York can be quite unexpectedly severe.  Consider the base forgery statute, which criminalizes the possession of any “forged instrument,” which is defined as a “written instrument which has been falsely made, completed or altered.”
PL 170.00(7).  Criminal possession of a forged instrument in the third degree: “A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument.  Criminal possession of a forged instrument in the third degree is a class A misdemeanor.”  PL 170.20.
These provisions work to actually criminalize the possession of a fake or forged driver’s license.  However, experience teaches us that that in certain situations, having something like this can actually lead to felony charges.  This is because the next level up in the statutory scheme reads as follows:
PL 170.25 Criminal possession of a forged instrument in the second degree. A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in section 170.10. Criminal possession of a forged instrument in the second degree is a class D felony.  And, PL 170.10(3) specifically includes  ”A written instrument officially issued or created by a public office, public servant or governmental instrumentality .  .  .”
Problems may compound if the circumstances under which the arrestee is found in possession of the forged or fake driver’s license are egregious.  For example, if a person is found with marijuana and a fake ID, a prosecutor may be more inclined to proceed with serious criminal charges than had the forged driver’s license been the only possible charge.
In any event, should you or a loved one be found facing charges, whether through a processed arrest or through the issuance of a desk appearance ticket, you should immediately consult with an experienced NY criminal defense lawyer.

Incorporating Pattern Jury Language and Battling Police Embellishment in a DWI Trial By J. John Sebastian

Your client is charged with violating section 1192(3) of the NY Vehicle and Traffic Law. known in some places as a:DWI refusal" or a "common Law DWI"; albeit there is no chemical test, and the evidence will boil down to police observations to prove intoxication.
Assume for purposes of this article that our client has a prior (usually the case in refusals) so there is no offer. Lets assume further that our judge seems unsympathetic to our client's cause and the likelihood of an 1192(1) judgement after a bench trial are slim. So, onward we march to a jury trial of the matter.
1. Consult The NYS Criminal Pattern Jury Instruction(PJI) Manual
The first and most important step in trying this case is to consult the NYS PJI 1192 (3) VTL, specifically let's look at the relevant PJI definition of "intoxication",
A person is in an INTOXICATED condition when such person has consumed alcohol to the extent that he or she is incapable, to a substantial extent, of employing the physical and mental abilities which he or she is expected to possess in order to operate a vehicle as a reasonable and prudent driver.(emphasis added)
2. Incorporate Key Buzzwords Into Your Cross
"Physical and mental abilities... ." are the buzzwords you will be incorporating into your cross of the arresting officer.
Let's assume the usual direct testimony from the arresting officer, wherein he gives all the standard indicia of intoxication: swerving, bloodshot eyes, alcohol on the breath, unsteady on his feet, failed all the FSTs miserably.
Your cross examination follows:
You: Sir you observed Johnny drive past you, Yes?
Cop: Yes
You: You pulled out after him, True?
Cop: Yes
You: You activated your overheads, Correct?
Cop: Yes
You: and Johnny pulled over, Yes?
Cop: Yes
You: So at that point he had the mental ability to recognize you were stopping him,Correct Sir?
Cop; Yes
You: And the physical ability to pull the vehicle over, Yes?
Cop: Yes
You: You approached Johnny's vehicle?
Cop: Yes
You: And requested him to produce license and registration, Correct?
Cop: Yes
You: So he had the mental ability to understand that request, Correct Sir?
Cop: I guess...
You: That's a Yes?
Cop: Yes
You: And he had the physical ability to find produce and hand you those documents, Isn't that true as well??
Cop: well NO, it took him a long time to find them and he kept dropping his license...
What just happened? 'And it was going so well!' you think to yourself. Now what do I do?
Don't despair. What just happened is that our arresting officer just deviated from our script and is heading down the dark and lonely road of embellishing his observations of intoxication.
It is a dark and lonely road because you always follow the cardinal rule of cross; 'never ask a question you don't know the answer to'. In reality, that rule should be 'never ask a question you don't know what the answer to should be'.
3. Negative Impeachment of an Embellishing Police Witness
Continuing our sample cross:
You: So your testimony NOW is that it took 'a long time' for him to find his documents?
Cop: Yes
You: And that he 'kept dropping his license'?
Cop: Yes Sir, he did.
You: I see.
You: Sir, you have training in how to complete the necessary documents pursuant to a DWI arrest correct?
Cop: Yes I do.
You: In fact you were trained at the police academy on how complete the necessary documents Yes?
Cop: Yes
You: Did they train you to be accurate?
Cop: Yes
You Did they train you to be complete?
Cop: Yes,
You: Did they train you to be honest?
Cop: They did.
You: I'm handing you whats been marked State Exhibit A for ID purposes do you recognize it Sir?
Cop: Yes
You: What is it?
Cop: It is the arrest report I prepared for this case.
You: And you completed that over a year and a half ago Yes?
Cop: Yes
You: Contemporaneously with the events of the night in question correct?
You: And at the time you prepared it you were trying to be accurate?
Cop: Yes.
You: You were trying to be complete?
Cop: Yes
You: And You were trying to be honest?
Cop: Of course.
You: So that's a Yes?
Cop: Yes
You: Can you please tell the jury where in that arrest report it says that Johnny took a long time to produce his license and registration?
Cop: It doesn't say it anywhere.
You: I see. And would you please indicate where in the arrest report it states he kept dropping his license.
Cop: It does not say that either.
You can repeat this process again with his field notes, the misdemeanor information itself or his grand jury testimony (if the case is a felony) to really pound your point home.
4. Completing The Buzzword Cross
When you go back to your physical and mental capability line of questioning, the officer is not likely to embellish again, but if he does, be grateful, and just repeat your negative impeachment steps
In addition, point out through your cross exam the physical ability to operate at a safe speed, safely park the car, exit the car, stand in the roadway, walk without assistance, and walk while handcuffed behind his back. Of course you will incorporate each physical task into your cross as the facts of the case allow.
Point out through you cross exam the mental ability to follow instructions, comply with orders, give pedigree info, dial a phone, and carry on a conversation. Again look at the facts and take what they give you.
5. Summation
In your summation you will remind the jury that the law is not 'gasoline and alcohol don't mix'.(Initially talked about in voir dire and opening)
The law is whether Johnny had the physical and mental capabilities to safely operate the motor vehicle on the night in question. And then reiterate all of the evidence to support that he did.
If you follow these techniques of incorporating the key buzzwords of the PJI into your case through cross of the arresting officer, and using negative impeachment to battle embellishment, you should be returning NOT GUILTY verdicts on a regular basis with these types of cases.
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