A Manhattan judge recently ordered a hearing to determine if a defendant was wrongly advised about whether his guilty plea to criminal possession of a controlled substance would have immigration consequences.
In People v. George, 2000NY055185, NYLJ June 23, 2017, the defendant moved pursuant to CPL 440.10(1)(h) to vacate his judgment of conviction because he alleged that his attorney told him that a guilty plea would not have any immigration consequences. If it turns out that the defendant’s lawyer gave him the wrong advice, and the defendant would have gone to trial if he had been given this correct advice, the defendant is going to be able to take back his plea.
BEFORE ENTERING INTO A GUILTY PLEA, IT IS IMPERATIVE THAT A DEFENDANT IS ADVISED ABOUT IMMIGRATION CONSEQUENCES.
In a unanimous 8-0 decision, the United States Supreme Court has struck down a 10th Circuit ruling which held that a child who has disabilities and receives an Individualized Education Program (IEP) is receiving an adequate education as long as the educational benefit is more than “de minimis.” In Endrew F. v. Douglas County School District, decided March 22, 2017, the Supreme Court analyzed the purpose of IEP’s for students with disabilities. The Court stated “The IEP must aim to enable the child to make progress. After all, the essential function of an IEP is to set out a plan for pursuing academic and functional advancement.” This ruling emphasizes the fact that each child is an individual with varying needs, and that “an IEP is not a form document.” The Court’s decision requires school districts to offer students with disabilities an education which is meaningful for the child and applicable to his or her specific needs.
The Appellate Term recently reversed a case from Queens County Criminal Court because, among other issues, the prosecution failed to show that the defendant’s use of marijuana was in a public place.
The facts failed to show that the premises where the defendant was observed to be in possession of marijuana was actually a “public place” and “open to public view.” The accusatory instrument listed only an address and did not specify what the location was used for. The appeals court held that it was not possible to infer that the address listed in the accusatory instrument was a public place, such as a lobby or hallway.The conviction was reversed and the accusatory instrument was dismissed. People v. Brown. NYLJ 2-14-17.
A grandparent may him- or herself be taking care of a grandchild because the parent is unable. It may become important for that grandparent to file a custody petition in Family Court in order to get an order that can be used, for example, for school and medical purposes.
A recent case from the Appellate Division underscores the importance of a grandparent being able to step in and get custody of a child when it would not be in the best interests of the child for the parent to continue to have custody.
The Family Court did not follow the correct procedure in awarding the grandparent custody, but the Appellate Division itself found that there were extraordinary circumstances that supported the custody order to the grandparent. The grandparent had taken care of the child for a significant period of the child’s life, such as when the mother was incarcerated, and the mother could not show that she had been treated for her heroin addiction.
Grandparents who are thinking of obtaining custody of their grandchild, or who may just want to have a visitation order so as to stay in their grandchild’s life, should contact our office for a free consultation.
Lewis v. Speaker, Appellate Division 2nd Department (October 2016)
The right to an attorney for a a person accused of child abuse or neglect in Family Court begins only at the first court appearance, not at a preceding child safety conference.
A parent, for example, may come into contact with the Administration for Children Services (ACS) after a report is filed that the parent has been neglectful of a child. Even before ACS files a neglect petition in Family Court, it will schedule a child safety conference that the parent is expected to attend.
In the recent case of X. McC, decided by the Appellate Division, 1st Department, the court held that ACS could bar the respondent’s attorney from the conference.
If you are contacted by ACS with an allegation of child abuse or neglect, you should contact a lawyer. You can ask ACS to allow your lawyer into their meeting, but be aware that you may not be able to have your lawyer with you. If a petition is filed against you in Family Court you can then have your lawyer with you.
After an arrest where identification is in question, whether of an adult or a juvenile, it is important to test the reliability of the procedure that the police used. This is done at a hearing held before the trial. The hearing court can suppress a suggestive police-arranged procedure.
A new trial was ordered by the appeals court in a recent Queens County case because of an unduly suggestive show-up.
In People v. Haskins, the defendant and others were standing in front of a store near the location of a knife-point robbery. The police patted them down but found no weapons. However, the police did find the victim’s wallet on one of the individuals.
One of the officers held the wallet and walked over to the victim who identified his wallet. The officer then asked him if he recognized any of the suspects. The victim then identified all of the suspects. At trial, this identification was allowed into evidence.
The appeals court held that this identification procedure was unduly suggestive and should have been suppressed. Since this was a one-witness identification case, the error was held to be not harmless beyond a reasonable doubt.
The New York State legislature will be considering a new law that would require the police to give juveniles a clearer warning of their rights to remain silent and to have a lawyer.
Most people know about “Miranda” warnings, at least from watching movies and television: “you have the right to remain silent….” But State Senator Michael Gianaris says that only 10% of juveniles invoke their rights after hearing these warnings, and he wants what the police recite to juveniles to be more understandable. He proposes that the warnings read as follows:
“You have the right to remain silent. That means, you do not have to say anything. Anything you say can be used against you in court. You have the right to get help from a lawyer. If you cannot pay a lawyer, the court will get you one for free. You have the right to stop this interview at any time.”
The law now gives juveniles extra protection when being questioned by the police. The questioning has to happen in a separate room in the precinct, and the juvenile must have a parent present during questioning. This proposed law would give juveniles further protection when they are faced with a possible police interrogation.
A Westchester County court recently held that Facebook tagging of a person covered by an order of protection can be a violation of that order. The order can be violated if the order prohibits contact between the parties and the tagging results in the protected party being notified of the message.
People v. Gonzalez (reported in the NY Law Journal 1-15-16).
In the recent Queens County case of People v. Clermont, 11-4-15, the Appellate Division Second Department reversed a judgment and dismissed the indictment, overruling the lower court’s denial of suppression of a handgun.
In this Queens case, the police were on routine patrol in an unmarked car in a Queens neighborhood known for gang activity. The detective observed the defendant make “constant adjustments” to his waistband, and after the officer showed his shield and identification, the defendant ran and eventually threw a firearm from his waistband to the ground.
The Appellate Division held that the police did not have a reasonable suspicion that a crime had been committed, so the chase was not justified. The Court ruled that the facts in this case established at most that the police could only ask the defendant questions (the “right to inquire”).
Since the gun should have been suppressed, there was not enough evidence to prove the defendant’s guilt of Criminal Possession of a Weapon in the 2nd and 3rd Degree.
A Queens County judge has dismissed a drug possession case against a defendant because the Criminal Court complaint failed to show a nexus between where the drugs were found in a house and where the defendant was located during the execution of a search warrant.
The defendant and others were present in a house when police entered under a search warrant. The defendant was in one bedroom where no drugs were found. Police did find drugs in a bedroom in the basement, a hallway, the living room, and a second floor kitchen.
The court ruled that the District Attorney in the complaint filed in Criminal Court failed to show that the defendant had the necessary intent to possess the drugs found, and that the presumption in the Penal Law concerning drugs in open view in a room did not apply in this case because the defendant was not in any of the rooms in question.
People v. Stazzone (Queens Criminal Court)