Author: Brian Wagner

What is Considered Stalking in New York?

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Stalking is a crime that comes with a lot of negative associations and perceptions. While it may not be as serious as other crimes, being accused of this crime is still a major deal because a conviction can cause severe damage to your reputation and can land you in jail, in addition to having to pay hefty fines. Read on to discover what is considered stalking in New York. 

NY’s Stalking Laws

New York Penal Law has many laws that cover similar ground to what we think of as stalking, such as various degrees of the criminal offense of harassment. Additionally, stalking can also be related to domestic violence as well. However, the focus here is the four main general stalking-related criminal offenses. See the following: 

  1. Stalking in the Fourth Degree: Occurs when the actor intentionally engages in conduct that they know or should know will cause fear of harm to the victim or to the victim’s immediate family or causes harm to mental/emotional health of victim or their immediate family or causes a reasonable fear that the victim’s employment or business is threatened. 
  1. Stalking in the Third Degree: Identical to fourth, but here 3 or more victims are involved, or the victim is afraid of physical harm or serious bodily injury. 
  1. Stalking in the Second Degree: Identical to third degree when a weapon is involved in the act, or it’s a second conviction within 5 years, or if the victim is 14 or under and the actor is 21 or older. 
  1. Stalking in the First Degree: Occurs when the actor commits conduct that causes the victim to fear that the actor will physically harm, kidnap, commit a sex crime or sex offense. The actor displays a weapon or while stalking someone they also commit other offenses, such as sexual abuse in the second degree, rape in the third degree, criminal sexual act in the third degree, or other named offenses.

What Happens After a Stalking Conviction? 

If you’re convicted of a stalking offense, your punishment will depend on the specific offense and your criminal history. For instance, stalking in the first degree and stalking in the second degree are felonies, which will yield much harsher penalties than convictions of third and fourth degree stalking which are misdemeanors. Depending on your situation, the complaining witness may obtain an order of protection against you, you could get slapped with fines, incarceration, probation, restitution, or any combination of these various punishments. 

Defending Yourself Against NY Stalking Charges 

New York’s stalking laws were intended to help keep people feel safe as they go about living their lives. However, there are complex scenarios where these same laws may seem unfair to those accused of breaking them. If you’re in this situation, you want to make sure that your side is being represented fairly. The risk of a possible wrongful conviction is overwhelming, so you should be sure to obtain counsel who can be on your side and fight to protect your future. Contact us to speak to a qualified MOWK Law lawyer immediately to get started.

What is the Difference Between Assault and Aggravated Assault in NY?

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Anytime you’re facing criminal charges, you want to take it as seriously as possible, especially because it can significantly impact your future. A New York prosecutor may charge you with either simple assault or aggravated assault, depending on the various degrees of severity. Assault charges levied against you will accuse you of either committing a felony or a misdemeanor. Obviously, it’s important to understand the differences between assault and aggravated assault because it will make a drastic difference in how you could be penalized.  

What is General Assault?

In general, assault is defined by the action of intentionally or recklessly hurting another individual. Specifically, the New York definition of assault is the intentional injuring of another person or the negligent harming of another person with a deadly or dangerous weapon. The specific charges are based on how the person was injured and the severity of that injury.

General Assault Charges by Degrees

There are three degrees of general assault charges:

  • Assault in the third degree: As a class A misdemeanor, this is the least serious assault charge. You could face this charge if you initiate a physical fight with someone, and you injure them. Alternatively, you could also be charged here if you act recklessly, and someone is injured because of your recklessness.
  • Assault in the second degree: This is a class D felony that applies if the victim suffered serious injuries, or if you used a deadly weapon, or if you assaulted someone over 65, someone younger than 11, or certain officials, such as an enforcement officer or firefighter.  
  • Assault in the first degree: The most serious general assault charge is a class B felony, which carries a possible prison sentence of up to 25 years’ incarceration. It may apply if you seriously injure someone using a deadly weapon/dangerous instrument or if you seriously injury someone while engaging in the course of another felony. 

What is Aggravated Assault in New York?

An assault in New York is considered “aggravated” if it involves one or more elements that places the act on a more serious level. These elements can be based on what kind of victim is involved (such as a police officer, judge, social worker, child), the use of a deadly weapon, (including a firearm) or the severity of the injury. An aggravated assault is recognized as a violent felony.  

Are There Additional Assault Charges in New York?

Yes. In addition to the charges for assault in the first degree, second degree, and third degree, and aggravated assault, the other assault charges in New York include: 

  • Vehicular assault
  • Reckless assault of a child
  • Gang assault
  • Assault on a judge and assault on a police or peace officer

Facing Assault Charges in NY? Get Help from an Experienced Attorney

If you’ve been charged with any type of assault in NY, it’s a serious matter. Dealing with fines and possible jail time can be overwhelming, so you want an attorney who can help you in this difficult time, and one who will work hard to explore all possible defenses. You will want to mount the best defense possible. Our MOWK Law lawyers are here to for just that. Contact us today to learn more about your case.

4 Reasons NY Car Accident Victims Don’t Recognize How Serious Their Losses Are

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When you’ve been hurt in a car accident that was caused by someone else, you might not fully understand how severe your injuries truly are. But it’s important for your personal injury case to consider many factors before you accept an injury settlement offer. Read on to learn about four reasons why a car accident victim may not see how serious their losses are.

It’s not unusual for an individual who was injured due to someone else’s negligence, to underestimate how significant their injuries may be when the car accident first occurs. The reasons include the following:

1. Car accidents can leave victims in a state of shock:

You can’t predict how you’ll react to the trauma of a stressful event like a car wreck. Some victims experience shock or denial; post-accident shock symptoms could consist of rapid heartbeat, flashbacks, and changes to sleep or exhaustion. When someone responds in a way that produces an adrenaline rush or a state of shock, this may help to mask a considerable amount of pain that the body would use to indicate serious injuries. If this pain is not readily felt during this time, an accident victim could erroneously mistake their injuries. Not realizing this could result in a significant difference in the costs of your medical expenses.   

2. Many accident victims don’t correctly factor in the emotional pain and suffering they suffer:

Many of the injured fail to adequately contemplate the emotional problems that they endure, which can be very difficult to overcome.  When it comes to any accident, including a vehicle collision, there are different responses from different victims. For some involved in crashes, the stress and trauma can result in delayed emotional shock that can impact victims for days, weeks, or even months after. This can include unpredictable emotions, such as feelings of shame or guilt or negative thoughts. Conditions, such as PTSD may also occur.   

3. Serious injuries can take time to show serious symptoms:

While most vehicle accident injuries are present immediately, some may take longer to manifest. A life-threatening injury can worsen for weeks before the individual even realizes that the issue stems from the car accident. For instance, internal organ injuries don’t show symptoms right away. Something like whiplash can take days to develop, and an injury that is perceived to be a minor one could become infected, leading to something serious like organ failure that takes a few weeks to manifest. 

4. Some types of serious injuries lead to major secondary health concerns that require ongoing care:

Depending on the severity of the injury, long term care could be a possibility. For instance, burn injuries may require follow up surgeries, and physical and occupational therapy. Or a brain injury may take months to heal or may even be permanent. This is why it’s critical to seek out a medical opinion on your future care requirements to help determine what your medical and care expenses may be going forward.

Get Help from an Experienced NY Car Accident Attorney

It’s easy to see why you can’t rush into any settlement offer, considering the reasons people undervalue their case. Don’t go at it alone. It’s best to get help from an experienced car accident attorney. Get started by talking to one of our savvy MOWK Law lawyers who understands the value of your case and will work hard to ensure that you’re fairly compensated for your injuries. Contact us right away. 

Understanding the Alford Plea in New York

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If you’ve been charged with a crime in New York, a significant part of resolving your case depends on how you plead. In the simplest terms, there are three basic pleas; you can plead either guilty, not guilty, or no contest. However, there is something else that can occur. Defendants may consider using an Alford plea. You may have heard this term in passing, but may be unfamiliar with this alternative, so be sure to read on to learn about what this plea does and why a defendant may choose to exercise this option.

What is an Alford Plea in NY?

Like many states, New York accepts Alford pleas. What is an Alford plea, you may ask? Well, it is a type of plea agreement where the defendant makes a guilty plea for an offense, while simultaneously maintaining their innocence. 

The term stems from a significant Supreme Court case. In this case, the defendant, Alford argued that his guilty plea was not of his own choosing and was used only because he was worried about getting a death sentence, not because he was really guilty of murder. The Supreme Court found that a defendant can enter this type of plea under these circumstances: When the defendant doesn’t admit to guilt but acknowledges that the prosecution has enough evidence to convict them.

What is the Difference Between an Alford Plea and a No Contest Plea? 

If you enter either an Alford plea or a no contest plea, you’re essentially pleading to a guilty plea. A defendant who uses an Alford plea is claiming to be innocent while simultaneously pleading guilty. This may be similar to no contest, but here defendant will accept that they can’t defend themselves successfully, and they don’t admit guilt, but they do accept the penalties that come with the process. For no contest pleas, the defendant accepts punishment, but doesn’t admit guilt. 

Why Would Someone Want to Enter an Alford Plea?

If an Alford plea still ends in conviction, why would you want to plead this way?  Well, much of the reasons for this has to do with evidence. For instance, the evidence against you may be too strong to overcome that would make a difference in preventing a conviction. If you proceed with the trial, you could end up with a harsher penalty then what you get with your Alford plea. Perhaps there just isn’t enough evidence in your favor. Maybe your alibi is shaky, or the facts just don’t line up for you. 

Thinking About Alford Plea Options? Talk to an Attorney

If you’re charged with a crime in New York, you must weigh all of your options, and that could include making an Alford plea. Regardless of the crime, criminal charges can’t be taken lightly. With your reputation, livelihood, and freedom possibly at stake, it’s critical that you discuss your situation with a highly experienced defense attorney. Reach out to one of our knowledgeable MOWK Law New York criminal lawyers who can guide you through this process. Contact us today.

How Long Do I Have to File a Personal Injury Case in New York?

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If you were hurt in an accident, (motor vehicle, or otherwise), that was caused by another party, you probably want to receive money for your injuries and losses. You’re interested in pursuing a personal injury lawsuit but want to make sure that your timing is in line. Well, for the most part, for any New York personal injury case, you have three years to file. Although three years is a long time and you think you have a lot of time, you want to make sure that you get started right away so that you don’t miss your opportunity to be compensated for your injuries. 

New York’s Statute of Limitations Laws

The statute of limitations refers to the length of time that an individual has to file a certain type of litigation. For a personal injury lawsuit, this means that the person who was injured in the accident or incident must start the paperwork filing with the court within the timeframe. The time clock generally begins ticking on the date of the underlying accident or event that caused the harm. Typically, the court will block claims that come after the statute of limitation has passed, except for a few exceptions. Specifically, the New York three-year statute of limitations means that a plaintiff only has three years to file a suit from the date that the accident or incident occurred. 

In most personal injury claims, there is generally an apparent and evident cause of injury. For instance, if you were in a car accident, you will typically know about your injuries either immediately after the collision or sometime soon after the crash occurred when further symptoms might develop. This is why it’s not considered burdensome to be able to pursue claims within a relatively short time period of three years. But there are some circumstances where you will have longer than three years to file. 

Exceptions to the NY Statute of Limitations for Personal Injury Lawsuits

What if you miss the statute of limitations deadline? If you don’t meet the criteria for one of these exceptions, you generally won’t be able to file your PI case. However, there are certain exceptions to the statute of limitations, which can pause, delay, or change the time limit imposed. Here are the exceptions:

  • Discovery rule: Typically, the date of the accident/incident is the important date, but with more complex cases, the statute of limitations doesn’t begin to run until the injured person has discovered the injury. 
  • Legal disabilities: The plaintiff is a minor (under the age of 18) or doesn’t have a sound mind (they are under a legal disability). 
  • Wrongful death: These lawsuits arise when a party’s negligence causes another party’s death; close relatives and loved ones can file for this. The statute of limitations is shorter; it is two years to file instead of three. The time begins on the date that the individual dies.

Speak with an Experienced NY Lawyer Before the Statute of Limitations Expires

Filing your lawsuit is critical if you want to receive compensation for your injuries caused by another party. Talk to one of our highly skilled personal injury attorneys. Contact us here at MOWK Law to get an honest evaluation of your case and to file before the time runs out.

Can You Recover Slip and Fall Damages if You’re at Fault?

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We’re always reminded of the dangers of texting while driving. But what about the dangers of texting while walking? Given the fact that many of us are attached to a phone screen at any given moment, you could find yourself suffering a slip and fall injury when you’re paying more attention to your phone screen than walking at the hardware store. If this happens to you, you might be reluctant to file a personal injury lawsuit because you feel guilty about your part of the accident. You may be uncertain as to how that affects your claim: You wonder if you can recover slip and fall damages if you’re at fault. Be assured that New York law does allow plaintiffs to recover compensation from a defendant if the plaintiffs carry some blame for the injury.   

Not every personal injury case in New York is based strictly on the wrongdoing of the defendant. Sometimes there is shared fault to go around, with the plaintiff also contributing to their injury because of their own actions. When this occurs, the plaintiff’s role has to be considered when it comes to how much money they will be awarded. 

Pure Comparative Negligence

State law determines how the role of the plaintiff’s fault contributed to their injury. While some states completely forbid victims from receiving compensation (pure contributory negligence) if they are even one percent responsible for their slip and fall accident, New York is one of about a dozen states that uses a pure comparative fault negligence standard.  

This means that even if you do share some fault in the accident that you can still recover damages. In personal injury cases, including slip and fall cases, the amount that you will receive will be deducted by an amount that reflects the percentage of your fault. 

For instance, suppose you are clothes shopping, and you slip on spilled perfume that had been on the floor for hours. The store owner blames you for the accident. At trial, their defense is claimed in part on the basis that the reason for your fall is that you were watching videos on your phone, and your injury was not due to the spilled perfume. 

The jury determines that your total damages are $200,000, and you were considered to be 10 percent at fault, then $20,000 would be taken out of your award, leaving you with the remaining $180,000 in damages.  

In scenarios like the mentioned example, even if the case does not go to trial, the defendants will argue that the plaintiff contributed to their own injuries. It will help to have an attorney to show an accurate presentation of the facts. 

Get a PI Attorney’s Help for Slip/Fall Cases When You’re at Fault 

If you were distracted by your cell phone, eating food, or running around with your shoelaces untied, it doesn’t mean that you can’t recover damages from your slip and fall accident. However, it does mean that your recovery will be reduced in proportion to your fault. You will want to have an experienced attorney to help fight for you to get a lower percentage of fault. Fortunately, you can find this in one of our skilled MOWK Law New York personal injury attorneys. Contact us today for the next steps.

two construction men on a scaffolding

What Are the Most Common Construction Accidents in New York?

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It seems like everywhere you go in New York, there is some kind of construction going on. And with this essential work comes serious accidents that can produce injuries (ranging from minor to catastrophic) and sometimes even fatalities. 

If you work in this industry, you are subjected to very dangerous conditions that may be present every time you enter a construction site. Here are some of the most common construction accidents that occur in New York.

Falls

Falls are some of the most common injuries that can happen on a construction site. A construction worker can fall from anywhere that is above the ground, but some common examples include falls from a ladder, a scaffolding, a roof, or a chimney. Obviously, the higher the elevation, the more dangerous the fall will likely be, resulting in more severe injuries or fatalities.

Slips/Trips

While those working in construction attempt to keep the sites clear and organized, places that need work done are inherently congested and unkempt. This can lead to workers tripping or slipping, which can yield several types of injuries.

Accidents Involving Machinery

A lot of the machinery and equipment (such as drills, nail guns, hammers, and knives) that is used on a construction site is inherently hazardous. It’s up to both the employers, supervisors, and the workers themselves to ensure that the machines are in good working order and are used in accordance with the manufacturers’ intended use. The parties in charge must also provide proper training and should not allow inexperienced workers to perform work if they don’t know what they’re doing. However, regardless of how safe everyone is, accidents can happen. The accidents vary, but one of the most dangerous forms occurs when a worker is caught in or compressed by equipment. 

Being Struck by Objects

Other mishaps happen when a worker is struck by an object. This can include being hurt by falling objects, such as getting hit by a collapsing structure, or other heavy objects. Another way that construction workers are injured is when they are hit or run over by a moving vehicle. 

Electrocutions

Construction work is typically done on locations near power lines and power sources. This proximity makes it possible for workers to encounter the power lines with their machinery and vehicles, with electrocutions as an unfortunate consequence.  

What Are the Types of Injuries that Occur?

Now that the types of accidents that occur on sites have been clearly identified, you should also be aware of the specific types of injuries that can result from the accidents. Here is a list of some of the more common injuries:

  • Back and spinal cord injuries
  • Brain and head injuries
  • Broken bones
  • Burns
  • Eye injury and vision damage

Discuss Construction Site Accidents with a NY Attorney

Everyone realizes how dangerous construction sites are, and that’s why workers are required to wear helmets and other protective gear. However, even with safety measures in place, people can get hurt. If you need help after being injured in a construction work accident, you can discuss your case with a knowledgeable attorney. Get in touch with a MOWK Law New York construction injury attorney who can assess your situation and direct you to the next steps. Contact us today.    

What is the Difference Between Robbery and Burglary in NY?

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Sometimes robbery and burglary are used interchangeably. However, these are two very different crimes and as such are treated differently when it comes to penalties. There is a significant distinction between them: Burglary has to do with illegally entering someone else’s property, regardless of whether or not the individual steals something; robbery involves the taking of property from another through threats or intimidation or fear of harm.

What is Considered Robbery in NY?

Under NY law, a robbery is defined as a perpetrator stealing from someone using force, violently stealing from someone, or stealing from someone with a threat of violence or force.

What Are the Penalties for Committing a Robbery in NY?

Robbery is a very serious crime in New York. Depending on the degree in which the perpetrator is convicted, the penalties vary. Read on for the list of penalties for committing a robbery and armed robbery in the state of New York. The specific penalty will depend on the criminal history and the specific facts of the case.

  • Third degree is considered a class D felony and can carry a penalty of two to seven years in prison.
  • Second degree is considered a Class C felony and can carry a penalty of seven to fifteen years in prison.
  • First degree is considered a Class B felony and can carry a penalty of ten to twenty-five years in prison.
  • Armed robbery is considered a class B felony and can carry a penalty for a prison sentence of at least five years, fines, and restitution.

What is Considered Burglary in New York?

In New York, burglary occurs when a perpetrator gains entry into a building with the intent to commit a crime, and then remains on the property with intent to commit a crime. 

  • Entry into the building: The entry doesn’t require a breaking and entering. For instance, an individual could unlawfully remain in a building that they legally entered. 
  • Intent to commit a crime: Although theft is one of the most likely intended crimes, assaults and sex crimes are also common. It is still considered burglary even if the intended crime isn’t committed. For instance, an individual illegally enters a home with the intent to assault the occupant, but a dog drives the individual away before they can commit the crime. 

What Are the Penalties for Committing a Burglary in NY?

Like robbery, burglary is a serious crime. Burglaries are considered felonies in most cases in the state of New York. Read on for a list of the penalties for burglary in NY. The specific penalty will depend on criminal history and other facts of the case.

  • Third degree is considered a Class D felony and can carry a penalty of one to twenty-five years in prison.
  • Second degree is considered a Class C felony and can carry a penalty ranging from one to fifteen years in prison.
  • First degree is considered a Class B felony and can carry a penalty ranging from one to twenty-five years in prison.

Speak to an Experienced Criminal Defense Attorney If you’re dealing with either burglary or robbery charges in New York, you’re facing some serious charges which could have severe consequences for your future. You want to have a dedicated defense attorney at your side. Contact one of our skilled MOWK Law New York criminal defense lawyer right away to find out more about your case.

What is Negligence Per Se vs. Negligence?

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If you have a personal injury claim in New York, your case is probably based on either negligence or negligence per se. You’re probably more familiar with the term “negligence,” but both legal theories are important because they are the foundation for holding a party financially responsible for damages that their acts caused to another party. The key difference is whether the party is presumed negligent, or the injured victim needs to prove negligence. Read on to learn the detailed differences between negligence and negligence per se and why it’s important for your personal injury case. 

What is Negligence?

Negligence occurs when an individual or entity fails to act with reasonable care. The reasonable care refers to the type of care that a “reasonable person” would have used if they were in that position.

What is considered reasonable changes depending on the specific situation. If the defendant’s conduct doesn’t meet this reasonable person standard, then a jury may find that the defendant was indeed negligent.  

Elements of Negligence

There are generally four elements of negligence:

  • Duty of care
  • Breach of that duty
  • Causation
  • Damages

The reasonableness standard applies to the requirement of breach of duty. If the defendant didn’t use reasonable care, then they have breached the duty of care that they owed to the other party. In general, everyone owes everyone else a general duty of care to avoid behavior that brings a risk of harm or death. However, in a personal injury lawsuit, the duty may be more specific, such as a duty to all drivers and pedestrians when you’re a driver on the road.  

In order to show negligence, you might need an expert witness to testify as to what a reasonable person in similar circumstances would have done. And even if the person would’ve acted in an unreasonable way, it doesn’t necessarily mean that the party is liable for damages. The plaintiff still has to prove that the defendant’s negligent behavior was both the direct cause and the proximate cause of their injuries. And that their injuries resulted in damages. 

What is Negligence Per Se?

In contrast to regular negligence, negligence per se is when the defendant’s acts are presumed to be negligent because they broke a law or violated a specific statute. The law or regulation must protect the public interest, and the plaintiff must have suffered the type of injury that the law is intended to prevent or stop; also, the plaintiff must be a member of the group that the law is intended to protect. The rationale for this is that violating these laws increase the risk of injury or death to the public.  

Examples of Negligence Per Se

Some examples include:

  • Building codes
  • Criminal statutes prohibiting assault, murder, or other intentional acts
  • Driving under the influence of drugs or alcohol
  • Speed limits

Burden Shift

There’s a shift of the burden of proof here. Typically, the plaintiff has the burden to prove their case. However, in negligence per se, the pendulum swings towards the defendant. The plaintiff doesn’t need to show that the defendant breached the duty of reasonable care, rather this is presumed because the defendant violated one of the laws that was intended to protect public safety.

But the injured party must still show causation; in other words, that the defendant’s conduct was the direct and proximate cause of the injury, which resulted in related damages. If the plaintiff can’t show the causal relationship to their injury or prove damages, they can’t recover financial compensation.  

Talk to a New York Attorney about Your PI Claim

Regardless of whether your claim is based on a theory of negligence or negligence per se, you will benefit from having an experienced personal injury lawyer on your side. Fortunately, you can connect with a skilled MOWK Law personal injury attorney who will assist you with exploring your options. Contact us today.