Articles Posted in Uncategorized

Navigating the complexities of criminal records and background checks can be particularly challenging for individuals with extensive criminal histories. In New York, state laws provide several mechanisms that can enable someone with numerous arrests and even serious charges, such as murder, to pass background checks, especially in employment scenarios.

Arrests vs. Convictions

One of the primary factors influencing whether a person’s criminal history appears on a background check is the distinction between arrests and convictions. Under New York’s Criminal Procedure Law § 160.50, if an arrest does not result in a conviction, the records are typically sealed. Sealed records are not accessible to most employers or the general public, effectively removing them from standard background checks. This means that multiple arrests without resulting convictions may not show up, providing individuals with a cleaner record despite a history of interactions with law enforcement.

In a case where the defendant faced a burglary charge, the Supreme Court, Erie County,  granted the defendant’s motion seeking to suppress physical evidence and statements on the ground that the police lacked justification for detaining and searching him. The People appealed the decision.

There is a well-established test for determining whether the police can lawfully stop, search and detain a person.  Under People v. DeBour, 40 NY2d 210 (1976), the police can stop and request information from a person if there is a good, objective reason to do so.  The police can question the person if he or she has a reasonable suspicion of criminal activity.  The police have the right to forcibly stop and detain a person if there exists a reasonable suspicion that the person has committed a crime or is about to commit a crime.  If the police have probable cause to believe that the person has committed a crime, then the police can arrest the person.

In People v. Nazario, the incident leading up to the defendant’s arrest started when the arresting officer  responded to a call regarding a burglary in progress.  The officer had also viewed a “be on the lookout” (BOLO) photograph depicting a man who  may have been involved in a prior burglary. Three blocks from the burglary scene, the officer noticed the defendant walking alone carrying a bag and a cell phone. When the officer asked the defendant what he was doing, he responded that the was looking through garbage cans. The officer searched defendant’s bag purportedly to check for weapons. He then drove the defendant back to the scene of the burglary to figure out if he was a suspect in the burglary. At the scene a showup identification was conducted. A showup is a form of eyewitness identification during which the police present a single suspect to an eyewitness and ask the eyewitness whether the suspect is the offender.  The witness identified the defendant as the burglar, and the defendant was arrested and later charged

People v Y

Decision

This is an appeal by the defendant from a Supreme Court judgment, which was decided on February 7, 2013. The defendant was convicted of first degree sexual conduct against a child (3 counts), second degree sexual conduct against a child (two counts), second degree criminal sexual acts (16 counts), second degree sexual abuse (27 counts), third-degree sexual abuse (24 counts), and endangering the welfare of a child (3 counts).

People v Ellis

In this case the People assert that the defendant is a level 3 sex offender. Because of this, he was required, pursuant to Corrections Law 168-7(4), to register his Facebook account. The law specifies that it must be done no later than 10 days after a change of address or internet identifiers. Internet identifiers are defined as any electronic mail addresses or designations used to chat, for instant messaging, social media or other internet communication (Corrections Law 168-a[18]. Failure to register is considered a class E felony for the first offense, and the second offense is a class D felony.

The defendant filled out his annual verification form. This form required him to disclose internet information such as his screen name, service provider, and email address. While he disclosed the identifier on his Facebook account, he didn’t disclose that he had a Facebook account. He was charged with a violation of Corrections Law 168-f (4) on the premise that he didn’t disclose the account as an internet identifier.

(Matter of N. v NY Office of Children & Family Services, NY Slip Op 04379)

June 18, 2018

The court rules that this decision should be reversed, and the petition dismissed without costs. Despite the defendant’s argument, the court does indeed have jurisdiction over this appeal considering the dual dissent of the appellate decision is a question of law ( CPLR 5601), Matter of Kelly v Safir 96 NY2d 32, 38 [2001]. The question the courts must determine is whether there is a rational reason for the action, or whether it is arbitrary (Matter of Peckham v Calogero 12 NY3d 424, 431 [2009]. The court remarked that an arbitrary action is without a sound reason or basis, and is often made without consideration of the facts involved. If the reviewing court finds there is a rational basis, the reviewing court must sustain the determination even if the court believes it would have achieved a different result.

(The People of the State of New York v. M.M.)

The defendant filed this appeal regarding his guilty plea of criminal possession of a controlled substance in the 5^th degree. The court initially agreed with the defendant that his waiver of an appeal was invalid.

The defendant argues that the court failed to assign him new counsel at his sentencing hearing. The court disagrees. The court states that this argument is invalid because the defendant didn’t make an adequate case asking for new counsel. Therefore, the court didn’t err in failing to conduct an inquiry whether good cause was shown to substitute counsel (People v Mathews 142 AD3d 1354, People v Singletury 63 AD3d 1654, 1655 [4^th Dept. 2009].

The issue in this proceeding is whether a claim for innocence lies under CPL 440.10(1)(h) to vacate a judgment of conviction based on the defendant’s guilty plea. The court felt that the defendant’s pleas of innocence is not adequate grounds for relief.

The defendant is a nurse who was a caregiver for the victim. The victim is a disabled 10-year-old girl, who is blind, immobile and unable to speak. The defendant bathed the girl using a hand-held shower device. When she applied lotion to the girl’s legs after a shower, she noticed her skin was red and peeling.

The defendant called the girls parents who took her to the doctor. The doctor initially determined that that the victim had had an adverse reaction to medication. She was then referred to a hospital. At the second medical facility, it was determined that her condition was due to third-degree burns, which required skin grafts.

This case was an appeal from the Supreme Court, where the defendant was categorized as a Level Two sex offender.

The defendant had originally pleaded guilty for the use of a child in a sexual performance (violation of Penal Law 263.05). Before being released from prison the Supreme Court held a SORA hearing. After the hearing, the court gave the defendant 20 points for risk factor 13, which established him as a Level Two sex offender.

The defendant argues that the court was in error.

A New York Criminal Lawyer said on April 4, 2009, the police responded to a call for service at a family home in Nassau County. Upon their arrival, they discovered that the residents of the home, a man and his girlfriend had been engaged in a domestic violence situation. As a result of domestic abuse, the woman was complaining of abdominal pain. She was far along in pregnancy at the time of the altercation. She stated that during the fight, she had been pushed or struck and that the blow had caused her to fall to the floor. She had not been allowed to obtain prenatal care and her complaints were concerning to the officers. An ambulance was called to the scene and the woman was transported to Nassau University Medical Center to receive treatment.

A New York Criminal Lawyer said that upon her arrival at the emergency room, doctors were concerned about the woman’s condition but only took brief examinations of her and promptly dismissed her from the hospital. On May 13, 2009, she returned to the emergency room complaining that she was having contractions. She was admitted into the hospital and doctors administered drugs to attempt to delay the delivery of the child. Since, the woman’s membranes had ruptured, doctors administered steroids to attempt to speed up the maturation of the baby’s lungs. The baby was subsequently born on May 13, 2009. At some point during his delivery, he was deprived of oxygen and blood through a compression of his umbilical cord. As a result, he was delivered with a brain injury that will result in his having to be cared for professionally the rest of his life.

Continue reading

This is a case involving a Hispanic criminal defendant who was stopped and taken into custody by police officers for DWI. The defendant evaded a toll booth in a “cash only” lane without paying the required toll. The defendant was brought to the police department and was shown a video in the Spanish language explaining the process of taking breath tests. Having understood the same, the defendant complied and allowed the police officers to take his breath test. However, defendant asserted that he was not offered the opportunity to perform the standard coordination test.

During the trial, the defendant argued that his constitutional rights were violated when the police officers took his breath test but did not allow him to take the standard coordination test for the reason that he, allegedly, do not understand English. Defendant filed a motion to dismiss and several other motions which include a motion to suppress the videotape of the administration of the breath test and to set aside the verdict ad dismiss the charges on the ground that defendant’s federal constitutional rights were violated. The People filed an opposition to the said motions.

Continue reading