Law Talk With Douglas M. Schneider, Esq.

Criminal Mischief Should Make Everyone "Think Next Time Before He Cheats"

Carrie Underwood sings about being a jilted lover.  While she is home, her boyfriend is out carousing with other women.  What Carrie did when she found out is well known.  She "dug [her] key into the side of his pretty little souped up four wheel drive, carved [her] name into his leather seat. [She] took a Louisville slugger to both head lights, [and] slashed a hole in all four tires."  While Underwood may have gotten her revenge, in New York State, she may have also committed a felony.

New York State Penal Law includes a crime called Criminal Mischief, which can range from an A misdemeanor to a B felony.  Intentionally damaging the property of another and causing damages exceeding $250 is a class E felony (PL 145.05).  If the damage exceeded $1,500, it would be a class D felony (PL 145.10).  Thus, it may be okay for Underwood to sing about destroying her ex-boyfriend's car, but if anyone were to actually do it, they could be looking at over a year in prison. 

Most criminal mischief cases are the A misdemeanor kind, under PL 145.00.  It requires the intentional damage of property or reckless damage of property in an amount exceeding $250.  The primary difference between E felony criminal mischief and A misdemeanor criminal mischief is intent.  To be charged with a felony, you must intend to do damage while to be charged with the misdemeanor you may merely have acted recklessly.  As an example, I once represented an inebriated defendant who saw his girlfriend talking to another man inside a bar.  When he pounded on the glass to get her attention, the glass broke.  He was charged with misdemeanor criminal mischief because he did not intentionally damage the glass, his conduct was merely reckless.  In any event, I was able to convince the District Attorney to drop all charges against him.

The star-crossed lover scenario could easily result in similar charges.  Girl meets boy.  Dad forbids girl to see boy.  Boy comes calling at night and throws pebbles at girl's window.  Pebble hits window and it breaks.  While boy may have been trying a romantic recreation of Romeo and Juliet, Dad (and the police) see a violation of PL 145.00.

The most serious form of criminal mischief, PL 145.12, is a B felony for intentionally damaging property by means of an explosive.  As you might imagine, prosecutions under this statute are far more rare than under the misdemeanor statute.  However, just as Ms. Underwood warns her ex-boyfriend to think next time before he cheats, she should be warned before she further damages his car.  Putting a firecracker in his exhaust pipe might be good revenge, and make for a catchy tune, but it could also result in a prosecution for the B felony of criminal mischief.

Drug Court For Non-Citizens Can Be a Dangerous Game

I wrote previously about alternatives to incarceration such as Kings county's S.T.E.P. program.  These programs allow people whose crimes are committed because of substance abuse to seek counseling instead of being incarcerated.  However, these programs require the defendant to plead guilty with a promise that, upon successful completion of the court-supervised drug treatment program, the guilty plea will be vacated and the defendant will not have a criminal record.  While alternatives to incarceration are great options for many defendants, non-citizens should make sure that they have discussed all collateral immigration consequences with their attorney.

The potential adverse consequences of these programs for non-citizens was highlighted in a recent case (by free subscription only) in Queens County.  The defendant, a non-citizen, had a serious drug problem and had several criminal court cases.  He was sent to Queens Misdemeanor Treatment Court ("QMTC") where he pled guilty and was sent to 28 days in a "drug rehabilitation unit" followed by 9 months at an in-patient drug treatment program.  The agreement was if he complied with the Court ordered programs, his cases would be dismissed and sealed.  However, if he failed to comply, his guilty plea would stand and he would be sentenced to four months incarceration.

Defense counsel advised the defendant that if he failed to complete the programs "there would be immigration consequences."  The Defendant absconded from the drug treatment program within a week, and although he re-entered several times, he never lasted more than a few days.  After several other court cases, and failed attempts at drug treatment, the defendant was eventually incarcerated.  As is often the case, once incarcerated, Immigration and Customs Enforcement ("ICE") learned of his status and brought removal proceedings against him.  He then filed a motion seeking to vacate his plea on the basis that his lawyers failure to advise him of the immigration consequences of his plea which constituted ineffective assistance of counsel.

 In Padilla v. Kentucky,the Supreme Court recently ruled that a criminal defense lawyer must advise defendants of adverse immigration consequences in order to provide effective assistance of counsel.  Thus, the defendant argued that had he known that he could be deported, he would have taken drug treatment more seriously, and that had he known he could be deported, he likely would not have plead guilty in the first place.

The defendant's position had a lot of holes in it.  He was advised that failure to complete the program could have adverse immigration consequences, yes he still failed to comply with the court's order.  Furthermore, his counsel got him an excellent deal by having all his cases subject to dismissal.  It would be hard to argue that he would be in a better position going to trial rather than drug treatment.  So it is not surprising that the court denied his motion.  However, what I find particularly interesting about the case is the discussion about the impact of pleading guilty to a "removable" offense, even if the plea is later vacated and the case dismissed.  The Court explained:

It is well settled, as defendant asserts, that for purposes of federal immigration law, a non-citizen's guilty plea to a removable offense may still be considered a "conviction" of a removable offense even though the guilty plea is later vacated on the ground that the defendant has been rehabilitated (see Saleh v. Gonzales, 495 F3d 17, 24 [2d Cir 2007]). In Saleh, the defendant, who had pled guilty to a removable offense in California, moved to amend his plea when removal proceedings were commenced against him. The California court granted the motion to amend by vacating defendant Saleh's plea to the removable offense and amending defendant's plea to a non-removable offense.

Because defendant Saleh's motion and the California court's ruling were specifically designed to help defendant Saleh avoid the adverse immigration consequences of his original plea, the Board of Immigration Appeals (BIA) ruled that defendant Saleh "remained convicted of the original removable offense" (Id.). The BIA found that "the amendment to Saleh's judgement of conviction was obtained solely to avoid 'immigration hardships' and not to remedy a procedural or substantive defect in the underlying proceedings" (Id.). The Second Circuit upheld that determination and cited with approval the determination of numerous other Circuits which have further ruled that "an alien remains convicted of a removable offense for federal immigration purposes when a state vacates the predicate conviction pursuant to a rehabilitative statute"(Id., citing Pickering v. Gonzalez, 465 F3d 263, 266 [6th Cir 2006]; Alim v. Gonzalez, 446 F3d 1239, 1249-1250 [11th Cir 2006]; Pinho v. Gonzalez, 432 F3d 193,195 [3rd Cir 2005]; Ramos v. Gonzalez, 414 F3d 800, 805-806 [7th Cir 2005]; Cruz-Garza v. Ashcroft, 396 F3d 1125, 1129 [10th Cir 2005]; Resendiz-Alcaraz v. Ashcroft, 383 F3d 1262, 1268-1271 [11th Cir 2004]; Murillo-Espinoza v. INS, 261 F3d 771, 774 [9th Cir 2001]; Herrera-Inirio v. INS, 208 F3d 299, 305 [1st Cir 2000]).

The foregoing immigration law has grave and unforseen consequences for non-citizen defendants who enter drug treatment courts throughout New York State where defendants may routinely enter guilty pleas to removable offenses with the explicit understanding that the pleas would be vacated if the defendant completes a specified drug treatment program. Because such a vacatur would be grounded in defendant's successful "rehabilitation," and not in "any procedural or substantive defect in the original conviction," non-citizen defendants who enter such pleas to removable offenses "remain[ ] convicted of a removable offense for federal immigration purposes" even if the plea is later vacated (Saleh at 25). This is so even where there is no indication that the vacatur was obtained to avoid adverse immigration consequences.

Given the foregoing immigration law, defendant is correct that his pleas to removable offenses placed him in jeopardy of removal even if the pleas were later vacated after he completed the drug treatment program.

Thus, technically, a non-citizen defendant places himself at risk of removal by entering a S.T.E.P. or QMTC type program in which he is promised that his case will eventually be dismissed and sealed if he completes drug treatment.  I would hope that ICE would take into consideration the fact that the defendant underwent drug treatment, finished the program, had his plea vacated and dismissed and sealed when deciding whether to proceed with removal hearings.  However, since nothing is guaranteed, the Court is right that it is best practice to advise a defendant of adverse immigration consequences from pleading guilty.

As a practical matter, a defendant may choose to enter the drug treatment program anyway, even after being advised of the potential adverse immigration consequences.  As the court points out, a non-citizen defendant is probably in a better position with ICE having been sentenced to drug rehabilitation and having his guilty plea vacated as opposed to taking the case to trial and losing with no chance at having the case dismissed and sealed.

Nonetheless, the lesson I take from this case is that it criminal defense attorneys must advise their non-citizen clients of the adverse consequences of a guilty plea, even if pursuant to an agreement in drug treatment court.  Likewise, if you are not a citizen of the United States and are arrested for any reason, make sure you discuss with your criminal defense attorney the adverse immigration consequences of any decision you make.  Indeed, it probably makes sense to consult with an experienced immigration attorney as well.

Defaults, Unlike Wine, Do Not Get Better With Age

I recently represented a client with an interesting dilemma.  A few years ago he hired a lawyer when he was sued for several thousand dollars.  The lawyer failed at negotiating a settlement and never answered the complaint.  However, the Plaintiff failed to do anything on the case for over four years.  Then, in December, 2009, my client got a letter in the mail seeking to settle the case and he came to me for help.

After reviewing the letter, I advised my client that he had grounds for dismissal pursuant to CPLR 3215.  CPLR 3215 contains the standards and procedures for moving to dismiss.  Pursuant to CPLR 3215(c), a Plaintiff has one year following the default to move for a judgment of default.  It reads, "If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."  Thus, I advised my client that he could move for dismissal, but that if he did so, the plaintiff would likely move for judgment of default.  Or, I told him, he could avoid the risk by negotiating a settlement.

I was strongly opposed to negotiating a settlement for what I believed was a stale claim, and my client agreed.  Rather than respond to the plaintiff's letter, I filed a motion to dismiss pursuant to CPLR 3215(c).  The Plaintiff opposed the motion arguing that its lawyer forgot to calendar any information about the case and, therefore, the failure to move for default was the result of "law firm error."  Plaintiff argued that, pursuant to CPLR 2005, law firm error was per se sufficient cause.  Plaintiff also cross-moved for a default judgment.

Four briefs later, argument day finally arrived.  I felt confident that the law was on our side, but was still a little nervous because you never know what a judge might do, especially when my client was not blameless and had failed to answer the complaint.  We were called to meet with the law clerk and my nerves were immediately calmed when he said to my adversary, "counselor, unfortunately defaults, unlike wine, do not get better with age."  We met with the clerk for fifteen minutes and then argued before the judge.  Fortunately, the judge agreed with my argument that merely claiming that the lawyer forgot to calendar anything having to do with the case was not sufficient to excuse a four year delay in moving for default.  The judge did not rule from the bench, but she recently issued an order denying the default and dismissing the action in its entirety.

There are several best practices lessons that arise from this case.  One, litigators need to be sure to have proper docketing and calendaring software so that they have vital case deadlines in their calendars.  Two, A party cannot sit on a default.  If the defendant defaults, make sure to move for default quickly, and, at the latest, within one year of default.  And three, law firm error is not a magic word that excuses every mistake that a lawyer makes.  Neglect is still neglect.  As the court said in INCORPORATED VILLAGE OF HEMPSTEAD v. JABLONSKY, 725 N.Y.S.2d 76, "While CPLR 2005 allows courts to excuse a default due to law office failure, it was not the Legislature's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse."

Braylon Edwards and New York's Drunk Driving Laws

According to media reports, Braylon Edwards, a wide receiver for the New York Jets, was arrested early this morning on suspicion of driving while intoxicated.  According to media reports, Edwards was stopped at 5:15 in the morning for having excessively tinted windows.  He was given a field sobriety test and a test back at the station.  Media reports suggest his Blood Alcohol Content ("BAC") was .16, or twice the legal limit of .08.  This cannot be good for Edwards or the New York Jets.

Focusing on the criminal case (as opposed to what the Jets would do at wide receiver without Edwards and the already-suspended Holmes), Edwards has a long road ahead of him.  At the time of this blog post, Edwards has not yet been arraigned.  Thus, I am speculating as to the likely charges.  He can expect to be charged with two variants of Driving While Intoxicated ("DWI") (Vehicle and Traffic Law "VTL" Section 1192(2)) which makes it illegal to drive with a BAC of .08 or greater, and VTL 1192(3), often referred to as "common law DWI" which makes it illegal to drive in an intoxicated state.  They charge the latter in case the BAC test is thrown out for some reason, the officer can still testify that he observed the defendant in an intoxicated state.  If Edwards had a BAC of .18 or higher (he was very close), he would be facing an "aggravated DWI" charge (VTL Section 1192(2)(a)).  

Assuming this is Edwards' first drunk driving related offense, and none of the four other people in the car were minors, Edwards will be charged with a misdemeanor.  If convicted of the misdemeanor, he would be facing up to one year in prison, a maximum $1,000 fine, and a license suspension of a minimum of six months.  Edwards is not likely to face jail time.  I recently represented a defendant charged with aggravated DWI in New York County.  His BAC was over .25 and he had several other adults and children in his car.  While the prosecutor was originally seeking a 30 day jail sentence with three years probation, I was able to secure a sentence consisting only of six months probation.   If my client did not go to jail with a .25, Edwards is not likely to see jail time (at least in NY, Edwards may be on probation in Ohio and this may impact his status there).  However,  Edwards can expect to have to undergo mandatory screening for alcohol and drug problems, and, if convicted, will likely have to complete a drunk driver education program.

All is not lost for Edwards though.  Aside from challenging the accuracy of the blood alcohol tests, Edwards has other defenses.  What jumps out at me from the news report is that the police claim that Edwards' vehicle was stopped because it had excessively tinted windows.  This is a dubious claim.  A police officer cannot tell just from looking at the window whether the tinting exceeds the legal amount.  The claim is even more dubious if the vehicle was in motion and it was not light outside.  Experienced criminal defense attorneys see this same reason for police stops all the time.  Depending on the facts, the right judge may rule that the reason given for the stop was a pretext and find that there was no probable cause for the stop.  If a judge ruled this way, the evidence would be suppressed and the case likely dismissed.

New York State is committed to fighting drunk driving.  Whether you are a professional football player like Braylon Edwards or a regular working man like my client, if you drink and drive, you are likely to get caught.  And make no mistake about it, New York keeps toughening its laws.  If you want to know more about New York's drunk driving policies, the DMV puts out a brochure, but I don't know if it reflects the most recent changes in the law.  If god forbid you are ever arrested for driving under the influence of alcohol or drugs, make sure you consult with an experienced attorney, 

Don't Be A Patsy

Craigslist recently announced that it was getting rid of "adult services" from its online advertisements.  This raises an excellent first amendment debate about free speech on the internet.  However, that debate will have to wait for another day on this blog.  Instead, I want to talk about certain dangers that come with Craigslist and similar websites.

Recently, I seem to be representing a lot of people who "thought" they were obtaining a legitimate job through Craigslist.  The job ad probably said something like this:  "Work from home.  Earn great commissions." A few emails later the person learns what the job is.  Packages will be ordered on-line and sent to their address.  The "employer" will send a list of addresses to the "employee" who will then send the packages to the new address.  For this work, they will receive a small commission.  If this is your job description, I advise you to stop and think for a second, is this something people really get paid to do?  Why are they having packages shipped to my address?  Why am I shipping the packages to other addresses?  Why can't the "employer" just do it himself.

Another common one seen on Craigslist, and especially on foreign language sites like rusrek.com, involves getting paid to simply open up a bank account and take out money.  You are told to keep some portion of the money and send the rest to some other address.   Again, before you get involved in such "employment," consider whether this passes the smell test.  Why exactly can't the person take out the money himself?  What is wrong with the bank account?  Can someone really get paid just for opening up a bank account?

In either situation, a person should realize that they are being used as a patsy.  A reasonable person would look at both situations and assume that there is something illegal going on.  Most likely, we are dealing with identity theft (NY PL 190.80) or some type of money laundering (PL 470.15).  While the "employee" may plead ignorance of the larger scheme, that ignorance may not be believable to a grand jury, and even if the "employee" is not charged with the larger crime, they are often charged with Grand Larceny (PL 155.30); Criminal Possession of Stolen Property (PL 165.45); Scheme to Defraud (PL 190.65); and maybe even conspiracy (PL 105.05).

I understand that the economy is tough.  Sometimes it is easier to just put your head in the sand, ignore reality, and make your $100.  Instead, think to yourself, will it be worth it.  Is the $100 bucks really worth getting involved in an identity theft ring or enterprise corruption case.  It is kind of like that drunk driving commercial we see every day in New York these days.  If you do it, you are going to get caught.

Getting a job in this economy is tough, and Craigslist provides a terrific service.  I am sure that the vast majority of the job advertisements are perfectly legitimate.  But even if you are pressed for cash, search smartly.  Don't let someone else use you as a patsy.  Chances are they are sitting in a comfortable room somewhere overseas, anonymous and untouched by law enforcement.  Meanwhile, you will spend some nice time in Central Booking and be appearing in court once every month.

A Reasonable Tradeoff?

Paraphrasing from the Mishnah, it is said that one who saves a single soul saves an entire world, and one who destroys a single life also destroys a world.  (Sanhedrin 4:9).  I am not a talmudic scholar and therefore have no idea if that is an accurate quote  However, the words were lyrics to a song we sang on the Chapel on the Hill at Camp Harlam and I have been thinking about them a lot the last few days.

Detroit police were given a no-knock warrant to search for a 34 year old man wanted as a suspect for a brutal murder.  They "announced their presence" at 20 to 1 in the morning by breaking down the door, throwing a stun grenade, and storming the apartment building where the suspect was thought to be hiding.  The suspect was caught, although it is not clear where, but in the confusion, where stunned family members were dealing with what seemed like a raiding army in the middle of the night and police were left with a crowded apartment in the pitch black, 7 year old Aiyana Jones was shot dead by a policeman's bullet in front of her horrified family.

I recognize that accidents happen.  I recognize that tragedies happen.  I recognize that the police are sometimes confronted with dangerous criminals and put themselves at risk in many situations.  However, as a society, we need to decide whether we are willing to tolerate a system where an innocent person is killed to capture an allegedly guilty one.

It is not only a question of the use of the controversial "no-knock" warrant which has led to many fatalities among innocents.  We see it all the time with high-speed police chases as well.  Suspect tries to flee, officer gives chase, situation devolves into a high speed chase and either the suspect or the police officer crashes their car and an innocent is hurt or killed.  As a society, do we tolerate the high chance of an innocent being hurt or killed in a high-speed chase in order to catch the alleged bad guy?  Does it matter if he is wanted for murder or driving with a suspended license?  There are legitimate arguments on both sides.  If we forbid police from giving chase, we encourage suspects to simply flee.  If we give police the ability to give chase, too many innocents are at risk.

Many would argue that no-knock warrants serve a vital purpose.  They protect the lives of police who do perhaps the most dangerous job in the entire force.  Supporters would argue that without no-knock warrants, executing a warrant would more often become a death trap for the police.

While this argument certainly has value, we do not tolerate such collateral consequences in other areas.  The law imposes strict liability on defendants if a death happens as a result of a crime.  If a defendant went into a store with a fake gun, stole a pack of tic tacs at "gunpoint" and the clerk has a heart attack and dies, the defendant has committed "felony-murder" and is tried as if he committed murder. 

At the end of the day, our entire system of criminal justice is premised on the belief that it is more important to protect the innocent than it is to punish the guilty.  The Founding Fathers recognized that sometimes a society has to tolerate letting the "guilty" go free in order to protect the innocent.  The tragedy of a person wrongfully convicted far outweighs the pain from letting a "guilty" person go free.  And no suspect is worth the life of an innocent 7 year old girl.