2011 in review

The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.

Here’s an excerpt:

A New York City subway train holds 1,200 people. This blog was viewed about 4,700 times in 2011. If it were a NYC subway train, it would take about 4 trips to carry that many people.

Click here to see the complete report.

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A Brief Overview of Drug Cases

Generally, there are two basic charges :

1) Possession

2) Sale

1) Possession has some variants such as possession for personal use and possession with intent to sell. Possession with intent to sell is a more serious charge because first, public policy considers pushing drugs ( especially on young kids ) to be a more serious crime against the public than using for personal use, and second because someone who has intent to sell will generally have a much higher quantity in his possession  than someone  who is a recreational user.

2) Sale also has some variants depending on whether someone is a small local dealer selling to a few customers who  are recreational users , selling to other dealers who in turn re- sell to larger dealers or major distributors who deal in large quantities and large geographic areas of distribution much like a legitimate corporation doing business nation wide or Internationally. The ” Drug Business ” , although illegal, is the biggest business in the world with gross revenue in the billions of dollars far exceeding the revenue from the biggest legal business.

These crimes range from a very low misdemeanor for low quantities in a possession charge through all classes of Felonies ( A-E, class A being the most serious ) including Violent felonies ( drug dealers killing and otherwise doing violence to other dealers etc ). The more serious charges carry mandatory sentences of many years in prison as well as fines and confiscation of the illegal substances, any vehicles used, any weapons and the fruits  of their business, i.e., the money ( usually cash ).

The bigger cases involving major distributors of large quantities are usually Federal crimes ( which carry much greater sentences than state crimes ) since ” interstate commerce ” ( albeit illegal  interstate commerce ) is involved because of distributing  and transporting across state lines as opposed to selling just within one state. This is why State  and Federal prosecutors concentrate on major dealers and distributors as opposed to low level dealers  and recreational or casual users ( although numerous arrests are still made on low level dealers and casual users in the government’s “ War on Drugs “).

Prosecutors work in cooperation with the police ( and FBI  and DEA ( Drug Enfocement Agency ) and other Authorities  and  Government Agencies for Federal charges ) and use different methods to find, apprehend and prosecute individuals and organizations ( Drug Cartels ) for their illegal trafficking in Drugs.  One method is the use of police confidential informants ( CI’s), who may  be criminals themselves , or may be undercover police officers. A CI usually observes a transaction , or illegal drug storage warehouse or operation out of an apartment, house,  abandoned or other building and informs the police who then arrest the people involved.  CI’s are commonly called ” snitches” and may or may not be paid or given some other form of compensation such as  a favorable plea bargain or even a dismissal for their own crimes, for the dangerous service they perform. Drug dealers generally do not like ” snitches” and death or other violence is often a consequence, if a snitch is found out. This is why there is the witness protection system which gives the person a new identity  and  a new location to live in ).

Another method the police and prosecutors use is to have an undercover officer who observes a drug transaction and radios or otherwise contacts another police officer to make the arrest. Another method is for an undercover police officer posing as a customer, to actually buy  drugs and then contact another police officer to make the arrest. This is commonly known as a ” Buy and Bust “ operation ( or sting ). Still another method, usually reserved only  for cases in which the prosecutors  are going after major Dealers/ Distributors ( due to the danger involved ), is for an undercover officer to infiltrate a gang, or cartel or other large drug entity. This usually takes time because the undercover officer must establish a relationship with all other members of the group and be accepted in the group and be trusted and respected and not be suspected of being an undercover officer, and certainly not found out to be an undercover officer ( usually death would be the result if found out ).

There are other methods that are used but any further discussion is way beyond the scope of this article.

Some of the things a defense attorney, representing someone or some group that has been charged with drug crimes, should do, are as follows : 1)  a thorough investigation of the facts including interviewing any witnesses ( just as in any criminal case ); 2) making an omnibus motion ( see previous article regarding motions ) including any motions for discovery, suppression of evidence (drugs, weapons, etc), suppression of statements,  identification hearings and other pretrial hearings; 3) researching the statutory  and case law; 4) evaluating any potential defenses and the strengths  and weakneses of those defenses as well as the strengths and weaknesses of the prosecutor’s case and whether the defendant should present a case  and whether he should testify and evaluate other strategies: 5) whether to plea bargain or go to trial,, etc

Some defenses are: 1) whether the police arrested the correct person (sometimes the police officer that observes the transaction is not the one that arrests the defendant  and thus although the police officer that observes the transaction describes the defendant  and the location ( street corner or building, etc ) the arresting officer may arrest someone else that matches the description at the location especially in a large city area ; 2)  there is no proof that the substance transferred in the transaction was in  fact an illegal drug. In a possession with intent to sell charge, as opposed to mere possession, no proof that the defendant had the requiste intent to sell ( if this defense is successful the charge will usually be reduced to possession ); 3)  the quantity charged cannot be proven and thus a higher quantity is reduced to a charge of possession of a smaller quantity which can result in a much lower sentence. There are other defenses depending on the facts  and circumstances of  the case.

There is an ongoing debate as to whether certain drugs should be legalized. The drug most talked about in this regard, is, of course, marijuana. In some states it is already legal for the restricted purpose of medical use only– basically to manage pain better so the patient can enjoy daily activities with less or no pain. This is still very new and experimental  and controversial even in the states that do legalize it. It remains to be seen whether it will stay legal in these states and whether it will become legal in other states  and whether it will become legal for use  without the restriction of for” medical use only.”

Watch for more articles on Criminal and Civil Law.

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A Brief Overview of Mortgage Foreclosure

If a Summons and Complaint is served upon you to foreclose on your mortgage there are some things you can do to try to save your house.

1) Reinstate the mortgage by paying the arrears to bring the mortgage current.

This is the most obvious thing although generally it is the most difficult to do , especially if you lost your job or became disabled from working  and have no one to borrow money from or other means to pay the arrears.

2) Obtain a deferment or forbearance on hardship grounds.

If you lost your job or became  temporarily disabled, you may qualify for deferment or forbearance so that maybe interest would be stopped and arrears and interest tacked on at the end of the mortgage or you may be given 6 months or a year or other time period in which no payments are due  and then when you are employed again, and at the end of the deferment or forbearance then you can resume payments.

3) Obtain a Loan Modification of the mortgage and/or take out a second mortgage.

Loan modifications are at the discretion of the lender  and  are not easy to obtain but they have an advantage  in that during the application process for the modification (which involves submitting  and resubmitting periodically detailed financial information) usually the lender will hold off on prosecuting the foreclosure until a decision is made on the loan modification.

There are organizations  and attorneys that  can provide help  when you are in danger of losing your home.

4) File a Chapter 13 Bankruptcy

This should only be done as a last resort if all else fails. The filing of the bankruptcy will stop the foreclosure process during the  bankruptcy since filing bankruptcy operates as an automatic stay of all collection activity by creditors. A  detailed discussion of bankruptcy is beyond the scope of this article but see previous article on Consumer Bankruptcy.

5) A Short Sale

This option does not save the house from being sold but may still be a better option than foreclosure since you will typically receive money from the proceeds of the sale which you can use to buy a less expensive house or rent an apartment etc. A Short sale is substantially similar to a regular sale of Real property  which consists of seller  and buyer entering into a contract of sale and going to a closing to complete the transaction. (The details of a real estate transaction including the closing  are way beyond the scope of this article on foreclosure ). The main difference with a short sale is that the price the property is sold at is less than the fair market value of the property  and  must be agreed to by the bank.

A brief overview of the foreclosure process is as follows :

A Summons and Complaint for foreclosure is filed and served . You then have 20 or 30 days to answer the complaint ( if you are planning on filing bankruptcy you can skip answering the complaint  and just file bankruptcy ). The foreclosure process is a complicated process in which the lender must comply with many technical requirements in the law regarding  serving  and filing notices, acceleration of the full debt etc. The process in New York State  generally takes about 1-2 years and can take longer in some cases or if the lender effectively has to start all over again for failure to do it right the first time or because a bankruptcy was filed.

Even after the complaint  is filed and served and answered it may be possible to work out some manner of settlement  using one of  the 3 methods mentioned above. If the case is not settled then the foreclosure will proceed ( unless bankruptcy was filed ). At some point in the process a  court appointed Referee will be appointed to calculate the amounts due and after the court orders a sale of the property the required Notice of Sale will be published according to the court order and the property owner will be given an opportunity to Redeem the property by paying the full amount due. If the owner cannot or does not redeem the property prior to the sale, he can still bid for the property at the sale. If the owner does not bid or  does not win the bidding at the sale, the property will be sold to the highest bidder. Many times this is the lender.

If your property is or is about to be the subject of a foreclosure, you should contact an organization  or an attorney right away so as not to preclude ( by the passage of time ) any of your options to save your property from foreclosure sale.

Watch for more articles on Criminal and Civil Law.

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A Brief Overview of Search and Seizures Under the Fourth Amendment

The Fourth Amendment to the U.S. Constitution grants people the right to be free from unreasonable search and seizures.

The key  point in the above right is that the search or seizure, whether pursuant to a warrant or under one of the exceptions to the requirement of a warrant ( so called warrantless searches and seizures ), is that the search and/or seizure be reasonable based upon the totality of all the facts  and circumstances known at the time. If a search or seizure by the police is challenged in court by the defense counsel, then the judge will decide whether it was a valid  and reasonable search/seizure. If the Judge determines that it was reasonable then any evidence discovered as a result is admissible  and thus a motion to exclude this evidence from being presented at trial would not succeed. If the Judge found that the search/seizure was invalid and unreasonable, then any evidence obtained as a result of the search/seizure, upon  a  defense counsel’s motion to suppress (exclude the evidence ) would be excluded under the fruit of the poisonous tree doctrine . This doctrine would not only apply to unreasonable search/seizure, but also to an unlawful arrest. If the arrest is unlawful, then any evidence found as a result of a search/seizure incident to the arrest would be excluded even if the search/seizure was conducted properly, because the unlawful arrest invalidates the search/seizure.

There is an exception to the general exclusionary rule that states that any evidence found as a result of an unlawful arrest and search/seizure is excluded from trial. The exception is called the inevitable discovery rule, which basically means that even though the police search/seizure was unlawful and the evidence would be excluded, it will not be excluded if the police can show that they would have inevitably discovered the same evidence at a later date  but this time by lawful means ( like pursuant to a valid search warrant.)

Generally, the police need a search warrant to search closed containers, vehicles, homes and persons. A search warrant is made by the police or a prosecuting attorney making a written application which states with specific detail such things as: the item(s) looking for, the place and things to be searched, and the basis for the belief that the things and places being searched will in fact contain the items the police are searching for ( example guns, drugs or other evidence ). Based on the application the judge will either grant or deny the application. If he grants it, he will issue the search warrant and the officers will then be able to go to the place to be searched  and search only the things and places named in the warrant for the items named in the warrant. The police can only search for the items they asked to search for. Example–  If the search warrant authorizes a search for drugs at a location, the police can not use that to also search for guns and thus if police opened a closet or other container that they were not authorized by the search for drugs and they found guns the guns would be suppressed. However in the law there are exceptions  and exceptions to exceptions, so in the above example if the guns were in plain view ( the police could see them without searching in places they were not authorized to do ) then the guns would not be suppressed. Not surprisingly, this exception is commonly called the plain view exception.

There are many exceptions( too many for full discussion in this article ) to the requirement of needing a warrant to search. However a common example of an exception is the exigent circumstances exception. What this means is that there are exigent (urgent) circumstances such that there is not time for the police to apply to the judge to get a search warrant because by that time the evidence would be lost or destroyed . A common example of this exception is that police are lawfully at an apartment where they received a reliable tip informing them drugs were being sold   there, and the alleged perpetrators of drug crimes are present at the apartment and the police are afraid they will flush the drugs down the toilet or flee with the drugs. Obviously in this scenario there is no time to obtain a search warrant.

The Law of search and seizure and suppression of evidence is very complex and is generally decided on the specific facts and circumstances of the case. Numerous treatises have been written on it  and there is a large volume of case law interpreting the statutory law. Any further discussion is way beyond the scope of this brief overview of this subject.

Watch for future articles on Criminal and Civil Law.

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A Brief Overview of The Veterans Disability Benefits System

The Law of Veterans Disability  is very complex and a full discussion  of it is way beyond the scope of this brief overview.

There are 2 basic types of Disability Benefits- 1) Service Connected Compensation and 2) Non-Service connected Pension.

Benefits can be for Physical or Mental Disability or for both.

1) Service Connected Compensation basically means the veteran is awarded monthly monetary ( and sometimes non monetary benefits such as a special  vehicle for veterans without the use of their legs ) benefits for disabilities that were connected ( related ) to their time in  the armed services. ( the most obvious example is that the veteran is wounded in war and his wound causes a disability, however  a not so obvious example can be manifestation of symptoms of a disease or condition many months or years after contracting it in service.

In order to establish a service connected disability the veteran ( usually through a Veterans Service Officer (VSO) of a Veterans Service Agency such as The Disabled American Veterans, or other Agency ) must show that he has a current disability that was either caused by or aggravated ( in the case of a pre-existing condition-a condition the veteran had before entering service ) by service. This is usually done through service medical records, military records, and civilian medical records.

If a veteran is able to establish a service connected disability, the next step is for the VA to assign a percentage of disability ( in 10% increments ) under the VA rating system with corresponding dollar  amounts for a monthly benefit amount. A veteran can file for an increased rating if he can show his disability should be rated higher now or in the future  if his disability worsened.

With Service connected compensation the veteran is allowed to be employed and have substantial assets. It does not matter how much the veteran earns or how substantial his assets are, he can still collect service connected compensation.

2) Non Service Connected Pension.

The details of non service connected pension are too numerous and complicated to discuss in this brief article. However the basic idea is that unlike with service connected compensation, the veteran’ income  and assets do matter. If the veteran is otherwise entitled to non service connected pension but his income exceeds the maximum monthly dollar amount for non service connected pension he will not be eligible for benefits. If his income is less than the maximum monthly pension amount,  then the veteran will receive the difference between the pension  amount  and his monthly income amount as his benefit.

The details of the Application for VA benefits  and the Appeal of a denial of benefits and the strategy involved are too numerous  and complex  for a full discussion in this article but the basic procedure is as follows: First the veteran files  an application for benefits  with the local VA Regional Office (VARO) ( for NY veterans there is a VARO on Houston Street in Manhattan  and one in Buffalo ). If the application is denied the veteran, among other options,  can request review ( including a hearing ) by the VARO or can  appeal to The Board of Veteran’s Appeals (BVA) by filing a Notice  of Disagreement (NOD) with the VARO’s decision within one year of the decision. The BVA can deny the appeal or grant it or grant it  and remand it back to the VARO for a determination of benefits. If the BVA denies the veteran’s appeal the veteran , among other options, can reopen the case at the VARO ( by submitting new evidence ) , make a motion for the BVA to reconsider its decision, appeal to the U.S Court of Appeals for Veterans Claims which was created around 1990 by The Veterans’ Judicial Review Act of Nov 18, 1988.

Legal Fee Restrictions

The previous severe restrictions on legal representation and attorney fees which had resulted in there not being many attorneys practicing Veterans Law, have been changed so that veterans now are able to hire attorneys more easily, although as of now there are still not that many attorneys practicing Veterans Law, however, the number is increasing.

Watch for future articles on Criminal and Civil Law..

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Identification Hearing ( Wade Hearing )

The purpose of a Pre Trial  Wade Hearing is to determine whether the eye witness’s identification of the defendant as the perpetrator of the crime is correct.

There have been numerous studies  and books  and articles published that come to the conclusion that eyewitness identifications and the police procedures used can be unduly suggestive of a certain person having committed the crime in question  and yet being completely mistaken in the identification. Eye witness testimony has been shown to be not very reliable due to numerous factors, in addition to improper suggestive police procedures, such as the amount of  time the witness was able to see the defendant accused of the crime, the distance  and angle and viewing conditions ( good lighting, darkness , was witness wearing his eyeglasses if applicable, memory or poor memory of witness etc. )

An example of some of these problems is illustrated by studies at law schools ( and other places ) in which the students are exposed to  an enactment of a crime  ( such as stealing papers off the professors’ desk ) occurring quickly ( the perpetrator runs in from outside the classroom and takes the papers  and quickly runs out of the classroom ) in front of a large group of students. The students are then asked to describe the perpetrator and the occurrence of the crime. Studies of this type  generally resulted in several greatly varying so called eyewitness accounts as to the height, weight, race, clothing, hair color, eye color, what the conduct was ( example taking papers off professors’ desk ) etc.   Examples of such wide varying descriptions have been that the person was 6 ft 2 ( when actually 5 ft 9), wearing a baseball cap ( when in fact not even wearing a hat ), the person was male  (when in fact female ), person was black ( actually caucasian) etc.

Some of the police procedures that can be improperly suggestive  of the wrong person being the perpetrator are : show ups, photo arrays and lineups.

An example of a show up is when a crime is committed ( example robbery of a store ) and the police find someone near the scene of the crime shortly after the commission of the crime and thus show the person to the store owner  and  say something to the effect that they saw this person nearby acting suspiciously and that they think this is the guy and they ask the owner if it is the guy and the owner usually says yes . This may not be because the owner really saw this guy  rob his store, but rather this guy is suggested to him by the police as being the guy since police found him near the scene. Many times this is a case of mistaken identity with the person being a victim of being in the wrong place at the wrong time  and fitting a general description of the perpetrator. These general descriptions, due to reasons mentioned above regarding the inherent unreliability of eyewitness identifications, are usually so vague that many people will fit the description. ( example black male, average height, age 20-30, wearing blue jeans, sneakers and hooded sweatshirt with  baseball cap). Thus most, although not all, show up identifications are not reliable without other evidence that the police  showed the actual perpetrator to the owner.

An example of a suggestive photo array is that the witness is shown 6 or more photos and told the perpetrator is in one of the photos, the perpetrator was known to the owner to be an oriental, and there is only one picture of an oriental. Another example is that all the photos  are of people of the correct race and the police officer without saying a word but with his finger under a certain photo, or looks with his eyes upon a certain photo, thus unduly suggesting that the police think this is the guy  and that the witness should pick this photo.

In Lineups as with photo arrays, the police are required to lineup people of similar race, height, weight, age, hair color, gender etc as the alleged perpetrator. As with photo arrays, sometimes this is not done very well and results in an identification of  a person who did not commit the crime due to the improper suggestiveness of the lineup procedure. ( example there is only one person over 6 ft tall and the perpetrator was known to be over 6 ft tall ). Another example, similar to the photo array examples, is that the lineup contains the correct types of people but the police suggest by pointing, looking with their eyes or even by saying something like  do you see anyone you recognize here and when the owner says no or he is not sure then the police officer says are you sure you do not see him or how about #3 doesn’t he look like the guy . ( while this is improper  and does not happen often it has happened .

Thus it is very important to a defendant’s case that his attorney make sure that no  improperly suggestive procedures were conducted and if there were any improper procedures that  the applicable motion to preclude the identifications from being used at trial be made. This also applies even if there were no improper procedures by the police but the witness is mistaken in identifying the defendant as the perpetrator based on one or more factors  previously mentioned about the inherent unreliability of eye witness identifications.

Watch for future articles in Criminal  and Civil Law.

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A Brief Overview of Mental Hygiene Law Article 81 Guardianship

As people live longer these days a common problem is a person becomes mentally incapacitated due to Alzheimer’ s or other diseases and thus unable to take care of their personal needs and/or financial needs and thus are in need of someone else to do these things. If the person, before becoming mentally incapacitated, did not sign a  General Durable Power of Attorney ( see previous article about basic estate planning documents) then the person will need to have a Guardian  appointed by the court.

This is done by someone ( usually a  family member, but Article 81 authorizes other people  and  government agencies such as Social Services  ) filing a Petition for the appointment of a Guardian. The person who is in need of a Guardian( called an Alleged Incapacitated Person ( AIP) until proven to be an Incapacitated Person ( IP ) is entitled to be served with a copy of the Petition and to be present at the required hearing  and to have an attorney retained by him or if unable to afford one or if so incapacitated as to not understand the proceeding or the need for an attorney, to have one appointed by the court.

The Court will also appoint a Court Evaluator to meet with   the AIP and report to the court his opinion of whether the AIP should be declared  an IP  and a Guardian be appointed.

If the Court Evaluator recommends that a guardian be appointed  and if it is proven in court at the hearing that the AIP is indeed  an IP, then the court will appoint a Guardian.

The Guardian can be the petitioner if the petitioner is seeking to have himself appointed , or the guardian can be someone else, including an attorney appointed by the court, if the petitioner is petitioning for someone other than himself.

Guardians  can be appointed to take care of the personal needs ( such as cooking, cleaning, shopping, dressing, etc. ) and/or for the financial needs ( paying bills, banking etc.) of the IP. The Court, in its decision, will specify whether the Guardianship  is for the personal needs and/or financial needs and will issue an order enumerating the specific powers and duties of the guardian. The guardian is only authorized  to do those things spelled out in the order, but can apply to the court if he needs an additional power to do something on behalf of the IP. A guardian can be removed for exceeding his authorized powers or otherwise not acting in the best interests of his ward, the IP. A guardian cannot act before receiving his Commission by the court  and qualifying as guardian by completing the statutorily mandated training course under Article 81.

In addition to performing the specific tasks  and duties according to the guardianship order, a guardian is required to meet with his ward at least 4 times annually and make an annual report to the court regarding condition of his ward  and the ward’s financial situation. At the termination of the guardianship ( usually at the death of  the ward, but it could also be after removal of  the guardian , upon substitution of  another guardian )  the guardian must file a final report with the court before being relieved of his duties as guardian.

Watch for future articles in Criminal and Civil Law.

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