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.

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J. John Sebastian, Attorney

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.

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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.

Conclusion
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.

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MOTION TO DISMISS COMPLAINT FOR FACIAL INSUFFICIENCY

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::
5. 
   

"[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.

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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.

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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.

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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.


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