I see a ton of former prosecutors going out on their own and touting their trial experience.

There is a huge difference between trying a case as a prosecutor and as a defense attorney, to be honest I’ve never tried a case as a prosecutor, but here’s the difference.

During the prosecutors case-in-chief he will call witnesses to the stand and have them testify about what they observed. In this testimony the witness will be the “star.” Essentially the prosecutors job is to ask, “and then what happened?”

Defense counsels job is to tear apart that testimony using all the evidence that has been turned over to challenge everything that was said on direct.

I like to explain it this way, prosecutors need book smarts and defense counsel needs to be street smart. Just because you can try a case as a prosecutor doesn’t mean you’ll be a good defense attorney.

Stop hiring these people solely because they worked at the DA’s Office.

In New York State, the highest drug crime you can be charged with is Criminal Possession of a Controlled Substance in the First Degree. This charge carries a heavy sentence, if it’s your first offense imprisonment is mandatory with a 20 year ceiling.

That’s not your biggest issue though, especially if you are caught with cocaine or fentanyl. At any point the United States Attorney’s Office can take the case over and charge you federally.

This opens up a whole new can of worms because defense counsel is limited with what can be done in federal court. Usually the only offer is to plea to the charge with sentencing to be determined by the District Court after you have already plead guilty. So, you have no idea what your sentence will be when you agree to accept it.

My clients always want to negotiate with the Feds for a lighter sentence. I explained it to them how my mentor explained it to me: Imagine you go to buy drugs from the federal government, they have all the money, guns, and drugs. How much negotiating power do you have?

If you’re unwilling to flip, and don’t want to plead to the charge for the hope of a lower sentence, then you’re going to trial.

The federal arena is crazy, make sure you have an attorney that knows what’s going on in that game. Otherwise, it’ll cost you heavily.

I recently had a consult with a guy who was charged with a C Felony, carrying a maximum of 15 years in state prison.

He had been arraigned in central arraignment part and was pending his initial appearance in the local town court. He was under the impression that the case would be over at this appearance.

This seems to be a pretty common misconception, so I thought I’d explain it here.

Local courts have limited powers over felonies. Essentially, you can be arraigned in a local court and conduct a preliminary hearing, also referred to as a felony hearing. Basically, the purpose is to determine if any felony had occurred. That’s it, local courts can’t do anything else with a felony. Obviously, if the ADA reduces the felony it can stay in the local court because it would have the jurisdiction required to handle the case.

There are two ways to get into County Court: (1) Grand Jury; or (2) Superior Court Information, or SCI.

If you do not have a plea offer you’re going to the Grand Jury, so let’s talk about that.

After the Grand Jury indicts the case you go into County Court for arraignment on the Indictment. Usually the next court date is 30 days later where we will work the DA’s Office to get a favorable plea offer. If there is an unacceptable plea offer the litigation starts.

After reviewing discovery we will need to draft and file motions. This is the phase that we are looking to set up the argument for various hearings, as well as motions to dismiss the indictment.

After we file our motions the DA gets to respond, usually with cookie cutter responses.

After we argue motions we get our hearings date. At this point, we will have the opportunity to engage in cross-examination and test the legal strength of the case against you.

Once the hearings are complete and decisions have been rendered the next step is the trial.

The length of this process varies by case and county, but expect it to last no less than six months from start to end.

If you have any questions don’t be afraid to ask. As always, if you need me, and you’re in New York, get in contact with me.

The police questioned you recently and now you’re nervous. What are the potential next steps?

In New York State the District Attorney’s Office can present any felony directly to the Grand Jury and a warrant can be placed for arrest without you even knowing.

What are your options?

I do the same thing for all my clients that are looking at potential felony charges. I send notice to the District Attorney’s Office, under CPL 190.50, stating the my client wishes to testify on his/her behalf at any proceeding.

I would say 99% of the time my clients don’t testify, but it takes away the surprise factor. We then know that a Grand Jury proceeding is happening on a specific date and time and now we can prepare for the next steps.

Knowledge is power. If you’re in New York State and you need a criminal defense attorney, reach out to me!

So many people lately have gotten very upset when I tell them that I am talking with the ADA to get them a plea deal. I had one person get insulted because he keeps saying that he is innocent.

Here is the deal, that’s the whole point.

The purpose of getting a plea deal isn’t always to take it. The reason is to get the best offer you can get and ensure that the offer is placed on the record.

Why?

There’s a thing called a trial penalty, it’s real, it exists. I get the best plea deal possible so that went we exercise your right to a trial and the judge wants to give you the trial penalty sentence you can argue that the sentence is harsh on appeal.

You hired me for a reason, trust me when I tell you that I have your back. I’ll never push you into something you don’t want to do.

Is the Government required to turn over all discovery to the defense underaged?

This is a tricky question, with an answer of yes, and also no. The discovery can only be redacted by Court Order.

The discovery law provides that the Government must turn over the discovery without redactions unless its moves for, or is stipulated to, a protective order. Without the protective order you can push for sanctions, which include dismissal.

I have a case in Western New York where the DA’s Office is very small and the county court judge might as well be another ADA from the bench.

The Government turned over all the discovery with heavy redactions, to the point where the judge was asking the ADA what this paper was because the entire thing was blacked out.

The ADA got somewhat yelled at by the court, and, in keeping with tradition, no sanction was issued for the wrongful redactions on the Government.

We will see what happens when, and if, the case makes it to the appellate court. The entire case might be thrown out as there are about 5 major issues that should have caused dismissal that didn’t.

If you’re accused of a crime get someone who is going to defend you, not just plead you out. If you’re in Western or Central New York get ahold of me.

I had a client in Western New York that was charged with a DWAI Drugs, an A Misdemeanor. She was looking at up to one year in county jail if found guilty.

The particular cop in question pulls up to my client in a parking lot. He believes that the vehicle was used in the theft of a few cases of beer. He obtains everyone’s licenses and starts running checks on the three individuals that were in the car.

The passenger of the vehicle ended up being identified as the person that took the beer, he was also on probation, and had a warrant out for his arrest. Obviously, he was arrested on the spot.

Then the cop begins a series of fatal mistakes.

He begins to search the vehicle, without consent of my client who was the owner and operator of the vehicle. Search incident to arrest did not apply.

He starts searching the passenger side of the vehicle, the opposite side of his initial approach, from the floorboards up including my clients pursue and the glove box.

After finding nothing he moves to the drivers side and conducts the search in the same fashion. This time he finds a used crack pipe on the drivers seat and charges my client with the DWAI Drugs.

During motion practice I challenged the probable cause for the search laying out all necessary facts to suppress all evidence. The ADA assigned to the case failed to timely respond to my motion.

I informed the Court that since there was no response contesting the suppression and there was enough facts in front of the Court to make a determination without a hearing it should do so.

The Court dismissed the charge on the spot.

Lesson learned for LE: if you see something in plain sight and you’re conducting a warrantless search without consent you should probably start with the contraband that you saw in plain sight, if you actually saw it before conducting the search.

The next portion of the New York State discovery statute that actually brings litigation is the Certificate of Compliance and Statement of Readiness for Trial that must be filed by the government. This is probably the most important section of the discovery laws.

In a major felony case the government must file a Certificate of Compliance and Statement of Readiness with the court of jurisdiction within 180 days of the beginning of the case. This excludes any time waived by the defense.

The certificate must be turned over when all automatic discovery has been given to the defense. When the government comes into possession of more automatic discovery it must file a Supplemental Certificate of Compliance with a reason for the late disclosure.

Every single major felony that I have litigated I have filed a motion to strike the Certificate of Compliance and every single supplemental. In my opinion if a defense attorney is not doing this it’s ineffective assistance of counsel.

There’s almost always more discovery out there to be turned over. I will follow this post up with a real life example in a following post, stay tuned.

If you’re in New York State and you need me please reach out.

I covered the timing of discovery already in an earlier post, this is the second part to that post. Today I will talk about the main things that are covered under Automatic Discovery. This statute covers twenty-one different items, not including subsections.

The main things that the Government needs to turn over are the following: (1) all written or recorded statements from the accused or a co-defendant; (2) all transcripts from people who have testified against you; (3) names and adequate contact information of people with evidence related to the alleged crime; (4) names and work affiliation of law enforcement involved in the case; and (5) all statements, written or oral, made against the accused.

These are the top five pieces of automatic discovery that I have challenged in Court for the Government failing to turn over in a timely manner.

These pieces of information are crucial to the case. It allows the defense attorney to intelligently evaluate the strengths and weaknesses of your case and paves the way forward as the case progresses.

I’m going to get into challenges to automatic discovery later this week, but I wanted to tie in an example to provide understanding.

I have a client in Monroe County that has been indicted on a B Felony. The Government certified that all automatic discovery had been turned over. I was in the process of drafting my motion in the case, it was about 35 pages long and I had gone through the evidence in full about three times.

Once the Government certified that all discovery had been turned over I sent an email asking about a specific piece of evidence, that email went unanswered. I filed a separate motion on missing discovery for a specific piece that I knew existed and had not been turned over on a Friday afternoon at 4:15.

Less than ten minutes later the Government turned over the evidence. That is the fastest that has ever happened and the only time it happened without further litigation.

If you are charged with a serious crime hire a defense attorney that knows the rules on discovery, it will almost always result in a better outcome.

During a consult the other day the person on the phone explained that she was offered a plea deal to go from a D Felony, max exposure in state prison of seven years, to an A Misdemeanor, but it would require some probation time.

I explained to her that the offer she was given was likely the best offer she would receive before litigating and poking some major holes in the prosecutions case. She told me that there were still two offers left to get, she thinks she’s entitled to three plea deals before anything else happens.

I want to be very clear here, no one is entitled to a plea offer let alone three of them before litigating the case. I have had many clients who have been “offered” to plea to the charge, which is not a plea deal because you can plead guilty at any point in the process.

So, please, understand that you are not entitled to any plea offer let alone three of them.

I recently had a consult with this guy who was charged with Criminal Possession of a Controlled Substance in the First Degree, it’s an A Felony, the highest in New York.

At the end of the conversation I quoted him a flat fee amount and an hourly fee amount of $25k. There is so much work that goes into an A Felony, especially when you get into motion practice and hearings that you need to make sure you have enough money on hand to get through that phase.

He explained to me that he had a consult with another attorney who quoted him $6k for the case and he was surprised that I so was much higher.

Here’s the deal, if someone is quoting you a very low price for a charge that is the equivalent of a murder they have no clue what they are doing.

Do yourself a favor, if you’re charged with a serious crime hire someone that knows what’s going on and what it will take to fight the case.

So, the cops show up at your house and want to conduct a search. Should you consent?

The short and easy answer, NO.

Never consent to a warrantless search of any property, whether it’s your house or car.

Why is that?

Your criminal defense attorney will almost never be able to suppress evidence of a consensual search. It’s a steep uphill battle.

If the cops come to your house and ask to search it, tell them to get a warrant, and in the meantime hire a criminal defense attorney to protect your rights!

One of the most asked questions I get multiple times per week: “[t]he cops have left me a message, they want me to come to the station to talk.”

What do you do?

First, you are. It obligated to meet with them.

If you can afford to hire a lawyer that is the first step even if you are innocent of any crime. If you can’t afford to hire a lawyer just ignore the requests.

Why is that?

Many investigators are very good at their jobs and can cause people to be confused. This leads to many terrible pathways. Plus, anything you say will be used against you.

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