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

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.

Understanding the Alford Plea in New York

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.

What is the Burden of Proof in a Civil Case?

One way to help predict the likelihood of success in your case is by understanding the burden of proof. This is the legal requirement to determine who is responsible for producing evidence that proves or discredits a claim. The evidence is usually expressed through documents, objects, and witness testimony.

Who Has the Burden of Proof?

The law requires the party that has the burden of proof to present sufficient evidence that will support the claims. In most civil cases, the party that is putting forth the claim (the plaintiff) has the burden of proof. 

The Difference Between A Civil Case and a Criminal Case

The phrase “beyond a reasonable doubt” is familiar to most people. In a criminal case, this refers to the burden that the prosecution must satisfy, as the burden of proof lies with them. Here, the defendant doesn’t have to prove innocence; the defendant is viewed as being innocent until the prosecution establishes their guilt. However, there are scenarios where the defendant most likely wants to show that they are innocent, such as in cases of an insanity defense or self-defense. The standard is that the prosecution must show “beyond a reasonable doubt”that the defendant committed the crime and that there is no other possibility than what is presented to the court. 

In a civil lawsuit, the burden of proof is on the plaintiff. It’s up to them to prove that their contentions are true and that the other party caused them damages. For the civil case, the plaintiff’s burden is usually a “preponderance of evidence.” This means that it is more likely than not that the defendant caused harm to the plaintiff. In some civil cases, however, the burden is a different standard and it requires “clear and convincing evidence” or evidence that has a high probability of truth.

Standards of Proof

The standard of proof lays out what a party must do to meet their burden: The higher the stakes, the more difficult it is to satisfy. 

  • Preponderance of Evidence: This is the standard in most civil cases that requires plaintiffs to demonstrate to the jury or the judge that the defendant is more than 50% responsible for their damages, including property damage or loss of income.
  • Clear and Convincing Evidence: Sometimes plaintiffs seek more than money, namely things like civil liberties, and this demands a higher level. Here, you must prove that there is a high probability that the allegation happened.
  • Beyond a Reasonable Doubt: This is the highest standard and is used in criminal cases. It requires that no other reasonable explanation exists beyond the evidence presented.

Proving Negligence in a Civil Case

In claims involving negligence, (such as a personal injury lawsuit) you must establish first, that the defendant owed you a duty of care and that they breached that duty of care. Next, you need to show that the defendant acted in such a way that others in their same position would not have. Then, present proof that you were harmed by their behavior. 

Understand More about the Burden of Proof

Getting a handle on the burden of proof will give you an idea about your legal position and the possible outcome of your case. However, discussing this in detail with an experienced attorney will give you a better picture of what to expect. Contact one of our skilled MOWK Law attorneys to find out more information. Get started today. 

When Should I Hire a New York Criminal Defense Attorney?

Under almost any case scenario, you should hire a New York criminal defense attorney immediately after you’ve been charged with a crime. It’s a good idea even if you believe you are the subject of a criminal investigation. Read on to learn about why this timing is important if you’ve been charged with a criminal offense in New York. 

Early Stages

If your attorney is with you right from the start, then the lawyer won’t have to play catch up– they are more capable of building your defense from the very beginning. Your lawyer won’t have to fill in the gaps because they are already familiar with your case at its inception. When you have representation right away, you’re less likely to make a mistake or say something wrong to the police or other law enforcement agency. 

Talking to the Police 

When individuals have their initial encounters with the police, they sometimes believe that they will be able to have a productive conversation with the police. During an interrogation, a person talking to law enforcement may think that If only they can provide an explanation from their point of view, then everything will be cleared up. This is partially because many officers will use this narrative. They will lean on their subjects to merely tell the truth and then convince them that everything will be just fine, once they do this. 

However, more often the case is that whatever you say to law enforcement, you may come to regret it. They will try to bond with you, but you can’t ever go into an interrogation believing that the police are your friends when you are part of an investigation for a New York criminal offense. They have a job to do. Afterall, police officers are specifically trained to obtain information from you. After they have that information from you, and when they have your statements on the record, they can take the statements and use them against you; they can take them out of context as well. 

And the police are allowed to lie to you to extract that information. For instance, an officer might say to you “If you just tell me the truth, then I will stop talking to you and you can leave.” But that doesn’t happen. Instead, they leave, and you end up in custody. 

If you have a lawyer from the beginning, you will be ensured that you don’t inadvertently say something wrong to the police because you can invoke your right to counsel just as soon as your Miranda rights are given to you.

Contact a New York Criminal Defense Attorney at MOWK Law if You’ve Been Charged

Whether you’ve been charged with a DWI, sex offense, theft, or a white-collar crime, timing is important to your criminal case. Waiting until your case is already advancing through the justice system is not the way to go, if you want the best outcome possible. Don’t wait to get a lawyer involved from the beginning. MOWK Law has experienced lawyers who can mount a solid defense for you right away and let you know your options. Contact us immediately. 

police car with lights on

How Has COVID-19 Changed Arrests and Arraignments in New York City?

No matter how it happens, being arrested and awaiting arraignment in New York is never a relaxing time in your life. During COVID-19, though, with limited courtroom availability, fewer staff present in court and holding, and the contagious nature of the disease – especially while being held in close quarters awaiting a court date – are downright anxiety provoking. Considering these very real concerns, it’s important you know what to expect if you are arrested in New York City for any crime until the pandemic is thoroughly under control.

Arrests

Though the police have a strong presence near protests and other hotbeds of activity associated with COVID-19, they still continue to arrest people for other crimes as well. Though arrests themselves for normal crimes are still very much the same as ever, don’t be surprised if law enforcement takes extra precaution when they are required to be in physical contact or close proximity with someone in custody – in short, masks and gloves will likely be worn during an arrest, transport to a station for booking, and during processing when fingerprints, photos, and handling your personal property are necessary. After processing, arrestees are transferred to any of several facilities to be held until arraignment depending on where they are arrested. 

Arraignment

New procedures in place make arraignments vastly different than before COVID-19. In Manhattan, for example, there will likely be fewer people in the courtroom when you appear in front of the judge for the first time. It’s become more common for judges, prosecutors, and defense attorneys to appear at the hearing remotely through Skype or Zoom and be shown on a large television on screen in the courtroom. Your attorney will be able to meet with you by videoconference before the arraignment starts, and that meeting is still subject to attorney-client privilege. 

After your meeting, the arraignment takes place and the matter of bail, advisement of your rights, and setting your next court date. If you are released without bail, you leave custody as normal. This is becoming more common in misdemeanor cases as opposed to leaving someone in custody to come up with bail before allowing their release.

New York Criminal Defense Lawyer

Any arrest should be appropriately worrisome– and not just because you have been taken into custody and are put into close contact with other individuals during a pandemic while your case moves to arraignment. Additionally, a criminal record can last a lifetime even though COVID-19 will pass in the future, so it’s important you retain skilled, knowledgeable counsel like the experienced criminal defense attorneys at MOWK Law to try and secure your release from custody as quickly as possible and fight for the best outcome in your case. Contact us today to learn more, have your questions answered, and get out in front of a bad situation. 

What Are the Criminal Penalties for Protesting in New York?

Under normal circumstances, protesting is a constitutional right in New York and every other state. However, due to the recent COVID-19 pandemic, New York City Mayor Bill De Blasio made the controversial decision to ban the right “peaceably to assemble, and to petition the government for a redress of grievances.” Though the decision raises considerable concerns about upholding American civil liberties, many have chosen to continue peaceful (and in some cases, not so peaceful) protests in defiance of the order. Anyone participating in these protests may potentially be arrested and charged with a variety of crimes, including disorderly conduct. Below are some important facts related to the charge.

New York Disorderly Conduct Defined

Under Section 240.20 of New York Penal Law, disorderly conduct requires an intent by the charged individual to cause public inconvenience, annoyance, or alarm, or to recklessly create such a risk. For purposes of the ban, the most likely behavior cited in an arrest would be a refusal to comply with a lawful police order to disperse when congregating in a public place. However, the crime of disorderly conduct also may include behavior such as:

  • Making unreasonable noise
  • Engaging in fighting or violent, tumultuous, or threatening behavior
  • Obstruction of either vehicular or pedestrian traffic
  • Using abusive or obscene language or making obscene gestures in a public place
  • Unlawfully disturbing any lawful assembly or meeting
  • Creating a hazardous or physically offensive condition by an act which serves no legitimate purpose.

Penalties

Though courts have a large amount of discretion in considering a penalty, disorderly conduct is a violation and must follow the maximum sentence permitted for violations in New York. This means disorderly conduct may be punished by no more than 15 days of incarceration or a fine of up to $250.

Defenses

Unfortunately, the constitutional rights to assembly and free speech are not a defense to a disorderly conduct charge. However, there are several defenses that may be applicable:

  • Infancy – generally individuals under 16 years of age are not criminally responsible for disorderly conduct
  • Duress – someone being forced to perform the conduct against their will
  • Mental defect or disease
  • Justification – the behavior charged as disorderly conduct was authorized by law or required to avoid imminent injury to either the public or to a private person

New York Criminal Defense Lawyer

Any time you’re arrested and charged with a crime is a cause for serious concern. However, the current social climate has made many people decide to risk arrest despite the ban on protesting in New York, so it’s important to understand the potential charges and consequences you may face. If you end up with charge for the violation of disorderly conduct or any other crime, it’s critical that you have someone like the experienced criminal defense attorneys at MOWK Law by your side to try to secure the best possible outcome with regard to your situation. Contact us today to learn more, have your questions answered, and give yourself as much protection as possible. 

What’s the Difference Between a Violation, Misdemeanor, and Felony in New York?

New York’s criminal laws have been undergoing drastic changes in recent years, so it’s understandable that most people are not familiar with the current criminal justice system and classification of crimes for adults. Knowing the differences between offenses can help determine a lot of life-changing things like whether they must be disclosed to potential employers or if conviction results in a permanent criminal record. Here are some general differences between violations, misdemeanors and felonies. Under New York law, they are all considered “offenses,” but are distinct categories under the penal code.

New York Criminal Violations (or Infractions)

A violation is an offense other than a traffic infraction that carries a maximum possible punishment of 15 days in jail. Even though you can be taken into custody by law enforcement and held, violations are not considered crimes. This means that even if you are convicted of a violation, after disposition you won’t have a permanent criminal record. In many cases, this can save you from mandatory disclosure on employment applications or background checks.

For example, you might be taken into custody for disorderly conduct and then released after calming down. You’ll likely receive an appearance ticket to show up to court and handle fines or other issues related to the violation, but once this is done you have no further actions to take or consequences to face.

New York Misdemeanors

Misdemeanors are usually considered low-level offenses, and the maximum possible sentence for a conviction is one year in jail. Misdemeanors can be divided into Class A and Class B misdemeanors or unclassified. A top New York defense attorney can try to have Class A misdemeanors reduced to Class B misdemeanors to reduce the possible punishments.

Class A misdemeanors are more serious, and convictions can result in up to 3 years on probation or one year in jail, with a possible fine of up to $1,000. Class B misdemeanors carry a maximum sentence of three months or a year of probation, and the maximum fine is $500.

New York Felonies

Felony charges are filed for the most serious crimes like robbery and murder and sentences can range from at least one year in prison to a life sentence depending on the crime. Felonies are classified from most to least serious in this order: A-I, A-II, B, C, D, and E. Defense attorneys will often try to have a more serious felony charge reduced to a lesser class of offense or to a misdemeanor.

New York Criminal Defense Lawyer

Being charged with a crime is a serious concern for anyone, but it’s important to know the structure the criminal justice system uses to classify crimes in order to understand the consequences and possible options for negotiation and plea deals. Whether you are facing a violation or more serious crime, it’s important you have an experienced criminal defense attorney by your side to try to secure the best possible outcome for your situation. Contact the experienced team at MOWK Law to have your questions answered and learn about your options today.

What Would a Change to New York’s 50-a Law Mean?

Now that New York’s Senate is under the control of Democrats, the state’s controversial 50-a law is being looked at with an eye towards revision or repeal. This could mean sweeping changes surrounding misconduct involving the police and other corrections personnel.

What is 50-a?

In the New York Civil Rights Law, section 50-a declares that police officer, firefighter, and corrections officer “personnel records” are confidential and not subject to inspection or review unless the officer gives their permission. Though it was passed to protect personal information of officers who testified in court and prevent harassment by defense attorneys. State courts have created precedent permitting police to conceal almost all records from the public and allowing officers to escape transparency standards other public officials must obey.

Initially, the law only protected off-duty misconduct records such as illegal activities performed off the clock. However, appellate court decisions have expanded the protections of 50-a to include records of police misconduct on duty, such as assaulting civilians while conducting a routine traffic stop or search.

Why Is the Law Being Reviewed?

Though the law has been on the books since the 1970s, the law began receiving more public scrutiny since 2014, when notorious and highly publicized incidents of police violence brought national attention to criminal justice reform. The New York Police Department has cited 50-a numerous times when it has refused to disclose the history of Officer Daniel Pantaleo’s disciplinary actions– the officer responsible for choking Eric Garner to death in Staten Island. His internal NYPD trial is ongoing, but a leaked record of his history of complaints revealed he was the subject of several substantiated complaints for abusive stops and searches of individuals.

What Proposals Are Being Considered?

Though the options of 50-a’s reform or repeal are on the table, the New York City Council is debating a set of bills meant to curtail the city’s broad interpretation of the 50-a law. These bills would require:

  • The NYPD provide prosecutors access to disciplinary records within 24 hours of a request
  • District Attorneys offices provide a breakdown of the number of cases they prosecute and decline to prosecute
  • The NYPD make public their departmental guidelines for discipline, the number of officers disciplined annually, and information on individual cases of misconduct. Currently the Council may obtain information on those cases but cannot public individual proceeding details
  • Reports from the NYPD on how each precinct handles walk-in misconduct complaints
  • Data from the NYPD on second-degree assault, resisting arrest, and obstructing governmental administration arrests

Currently, however, only state legislators can dismantle or reform the 50-a exemptions. The police union, however, has been donating heavily to state politicians in an effort to prevent changes to or a repeal of the law. The legislature has until June 19 to figure out details on the bill before the legislative session ends.

New York Criminal Defense Lawyer

Everyone wants to believe the police will do their duty to protect and serve, but when they fall short of that standard it’s important you have an experienced New York criminal defense attorney by your side to fight for your rights. Contact the experienced team at MOWK Law to have your questions answered and learn about your options today.

Woman Contemplating

How Does an Adjournment in Contemplation of Dismissal Work in New York City?

In some New York City misdemeanor cases, criminal defense attorneys are able to achieve the Holy Grail of negotiated settlements to keep their clients from pleading guilty to a crime. An Adjournment in Contemplation of Dismissal (“ACD”) gives a criminal defendant with little or no criminal history the benefit of the court and prosecutor’s doubt regarding the charges filed against them. When an ACD happens, a judge agrees to adjourn your case for a period of time, usually 6 months (or, when marijuana charges are involved, a year). During that time frame you don’t have to do anything except keep from committing any new crimes. In a normal ACD, that means you don’t have to:

  • Pay a fine
  • Admit any guilt
  • Say anything except agree to the ACD.

If you follow the requirements of your ACD, once the 6 month or 1 year time period goes by, your case is dismissed and will be sealed by the court– which means the case will not show up on most background and criminal record checks by employers and others.

What Is an ACD?

An ACD isn’t a plea, conviction, or admission of wrongdoing. It’s also not a period where you’re placed on probation. The criminal justice system doesn’t distinguish between the dismissal following a not guilty trial verdict and the one after an ACD dismissal – the timing is main difference between the two dismissals. A not guilty verdict after a trial instantly dismisses a criminal case, but with ACDs you have to wait six months or a year for dismissal. However, many times it’s quicker to receive an ACD dismissal because the preparation leading up to trial and a criminal trial can take even longer.

When Would I Not Want to Take an ACD?

Even though an ACD is an excellent option for many criminal defendants, in certain situations it’s worth considering other options. Some employers and immigration agencies don’t understand what an ACD really means so one on your criminal record might cause confusion. This means that sometimes pleading guilty to disorderly conduct or another simple violation offense may a better choice. For example, if your job requires extensive background checks or security clearance checks, if you are preparing to be licensed by an agency like the State Bar of New York, or if you are not a United States citizen it would be wise to ask a criminal defense attorney what possible consequences an ACD might have on your life and make the best choice for you.

What About ACDs with Qualifications?

Though most ACDs require a defendant to do nothing, sometimes they are only offered with certain conditions. Because it’s not a guilty plea, a defendant can’t be sentenced to a punishment like jail time or paying fines. However, community service isn’t considered a punishment so you may still be asked to perform community service in exchange for the court offering you an ACD. Your ACD may also be conditioned on paying restitution to someone you’ve injured. However, neither community service nor restitution are an admission of your guilt.

New York Criminal Defense Lawyer

Being charged with a crime is a serious concern for anyone; it’s important to take advantage of opportunities to settle your case without creating a criminal record for yourself when possible.  If you are facing a potential misdemeanor charge, it’s important you have an experienced criminal defense attorney by your side to try to secure an ACD or other favorable result on your behalf. Contact the experienced team at MOWK Law to have your questions answered and learn about your options today.

What Do I Need to Know about Parole Revocation in New York City?

In New York, after a person has served their mandated sentence of incarceration and are released from prison, they are on parole, or Post Release Supervision. The parolee is placed under a parole officer’s supervision and required to abide by certain rules and conditions to avoid being sent back to prison through a process called parole revocation.

When Is a Parolee Eligible for Arrest?

If there is reasonable cause for a parole officer to think a parolee violated one or multiple of their conditions of release, a warrant may issue which will remain active during the violation process. If the parolee is taken into custody they will be held without bail. Within three days of the warrant issuing, a Notice of Violation will be given to the parolee along with a list of alleged violations in a Violation of Release Report.

            What Constitutes a Parole Violation?

A parolee can violate their parole for any new criminal charge whether or not a conviction occurs. A conviction may result in violation in addition to any other criminal penalties from the new charge. Violating any condition of parole, known as a technical violation, may also result in a parolee violating their parole. Common technical violations include:

  • Drinking alcohol or using illegal drugs;
  • Leaving the state or moving without permission;
  • Associating with known criminals; and
  • Failing to adhere to curfew.

Parole Revocation Hearings

Within fifteen days of the warrant issuing, a parolee is entitled to a Preliminary Hearing, held by a Preliminary Hearing Officer, to determine if probable cause exists to believe the parolee violated a condition of release. This may mean evidence and testimony must be presented by the Department of Corrections and Community Supervision (DOCCS) to demonstrate a violation occurred. If there is no finding of probable cause, parole is not revoked the parolee’s warrant is lifted and they return to Post Release Supervision. If there is a finding of probable cause, a Final Hearing occurs. No Preliminary Hearing occurs if a parolee is convicted of a misdemeanor, and if a parolee is convicted of a felony and receives a prison sentence their supervision is revoked and no hearings occur. If a felony conviction doesn’t result in a prison sentence, a Final Hearing occurs.

A final hearing involves a parolee, represented by an attorney, and the DOCCS, represented by a Parole Revocation Specialist. Both sides may examine witnesses and present evidence. The hearing will result in a determination by Administrative Law Judge (ALJ) that the charges are or are not sustained.

If the charges are sustained and a parole violation is found, penalties may include a diversion program at a drug treatment center or an imposition of an additional term of incarceration. The additional term of incarceration may be determined by the ALJ, the Board of Parole, or a term prescribed by the category of the parolee’s violation.  

New York Criminal Defense Lawyer

Parole revocation is one of the most serious concerns for anyone who has been convicted of a crime and served their time. If you are facing a potential parole violation, it’s important you have an experienced criminal defense attorney by your side to fight for you. Contact the experienced team at MOWK Law to have your questions answered today.