A misdemeanor is defined by any crime for which my client (the defendant) can be sentenced up to and including 1 year in jail. Some examples of misdemeanors are petty larceny, assault in the 3rd degree, endangering the welfare of a child, forgery in the 3rd degree, misdemeanor DWI (yes, there is also felony DWI), and the list goes on. Of course, if a client is convicted (by voluntarily pleading guilty or by a guilty jury verdict after a trial) of multiple misdemeanors, then there is the possibility that the judge will sentence the client to jail time on more than 1 of the misdemeanors, thereby resulting in jail time of more than 1 year in total. A client may also be sentenced to more than 1 year of jail if the misdemeanor(s) charge(s) are included in a felony case. Misdemeanors are separated into 2 categories – ‘A’ and ‘B’ misdemeanors. An ‘A’ misdemeanor is punishable with up to 1 year of jail time and a ‘B’ misdemeanor is punishable with up to 3 months of jail time. Here are examples of some difficult misdemeanor cases that I have handled:
My client Julian X. was born on March 25, 1943 and charged with ‘stalking in the 4th degree’ (a class ‘B’ misdemeanor, as per Penal Law Sec. 120.45. Julian had 3 wonderful adult daughters with their own families. Imagine their utter shock and horror when I showed them the statement from the female victim who wrote the following for the police:
On (the date in question) when [the victim] got home from work my daughter told me that an older Hispanic man driving a black rusted up car was following her. I asked what happened and she told me that he asked her for her name. The next day [the victim] followed my daughter in my car as she walked to school. [the victim] parked in front of the [school in question] as the black rusted car passed northbound on [the street in question] my daughter pointed the car out as the care that had been following her. I saw the car turn onto William St. and then turn onto [the street in question] again going southbound passing my daughter again and then I saw him turn around again and drive northbound pass (sic) my daughter a third time. He kept driving and turned on to Sunrise Hwy. going east.
On (a subsequent date) I was driving my daughter to school. I was at the corner of (another street) when we saw the black car driving towards us. He made a left turn onto [another street]. I turned around to follow him. He saw my daughter in the car and started to drive away from us faster. He made a left turn onto [another street]. I finally caught up with him at the corner of [the street in question] I blocked his vehicle with my car. I wrote down his license plate which was…………and I confronted him I told him he was caught and that I have his license plate.”
Of course the entire family of Julian X. was shocked and terribly embarrassed by this entire incident, but they were in complete denial. When I made my 1st court appearance and was given his FBI arrest and conviction record, here is what I saw: a) in 2001, he was arrested for ‘patronizing a prostitute in the 4th degree (a class ‘B’ misdemeanor). Julian X. eventually pled guilty to the charge of disorderly conduct, which is a violation and not a crime; b) then in 2002, Julian X. was once again arrested for ‘patronizing a prostitute in the 4th degree, the exact same charge as from 2001. He again pled guilty to disorderly conduct.
Basically, Julian X. was very lucky that he did not receive any jail time in 2002, which was the 2nd time he was charged. He could have received up to 3 months’ jail, probation, and a possible classification as a sex offender.
My client was a nice man who worked ‘off the books’ as a security guard for clubs, bars, etc. He did not have a criminal record but unfortunately, he entered the US illegally. Therefore, it was my job to defeat the charges completely because like any other person who is in the US illegally, if he had been sentenced to any amount of jail time at all, Immigration (i.e., USCIS) would have placed a detainer on him, thus preventing him from being released from jail once he had finished serving his jail sentence.
For any client who is not a US citizen (permanent residents, those with TPS, those who are applying for permanent residency, those who entered the US legally but then overstayed their tourist/work visa, and those who entered the country illegally to begin with), please refer to the ‘Immigration’ section of my website. It is true that Criminal Defense and Immigration cases often intersect.
Getting back to Steve’s case, he was working security at a bar and he recovered a pair of ‘sand bag gloves,’ a billyclub, and some other weapon that I can’t remember. He decided to keep these items, which he did not know are illegal to possess in New York State. Then again, I’m sure that most people would not suspect that these items are illegal. At the very least, these items are illegal to own/possess in NY without the proper permits.
Since Steve had a lead foot, he was pulled over for speeding and sure enough, the police officer found these items in the car. Santos was charged with 3 separate counts of ‘criminal possession of a weapon in the 4th degree, which is an A misdemeanor (Penal Law Sec. 265.01) and was charged with 3 traffic tickets, which were violations of the Vehicle and Traffic Law.
Obviously, my primary concern was to get the 3 ‘criminal possession of a weapon’ in the 4th degree’ charges reduced to non-criminal charges (such as ‘disorderly conduct,’ which is a violation and not a misdemeanor). But getting this accomplished was difficult because the DA’s office was only offering to reduce the 3 ‘A’ misdemeanor charges down to 3 ‘B’ misdemeanor charges. If I had advised my client to accept this plea bargain, there may have been jail time and the mandatory probation that comes with any plea of guilty to a misdemeanor. But most importantly, pleading guilty to even 1 misdemeanor would have resulted in a criminal record for Steve, which would have greatly jeopardized his chances of becoming a permanent resident someday.
When I saw that the DA’s Office would not offer any further reduction, I began to prepare for trial. But I quickly realized that going to trial on this case would not be easy because Steve’s employer, who was not very articulate to begin with, had hired Steve without the proper permits. Basically, this employer had hung Steve out to dry by hiring him without instructing him about the required permits that Steve needed in order to provide security for bars and clubs.
Since I needed to prepare Steve’s employer to testify at trial, the employer told me that he had advised Steve to take a security training course in the Bronx. But I had my doubts as to whether the instructor from that school would come to Nassau to testify on Steve’s behalf. Just because a potential witness is served with a subpoena, it does not guarantee that the witness will appear and provide testimony. Any personal injury/medical malpractice attorney with trial experience can tell you that in order to get a doctor/surgeon to testify at trial, it costs thousands (if not tens of thousands) of dollars in advance. Just serving a subpoena does not guarantee that the person will appear to testify in your case.
Once I realized this, I asked the Assistant DA for a ‘supervisor’s conference’ to try to obtain a better plea bargain deal for my client. With these charges of ‘criminal possession of a weapon,’ I knew that I could not take the chance of going to trial. At trial, a client cannot offer the excuse of ‘hey, I didn’t know that doing this was illegal.’ It is a basic tenet of our legal system that ‘ignorance of the law is not an excuse.’ I believe that this tenet is very harsh but if someone were allowed to use the defense of not knowing that a certain act is illegal, you can imagine that our criminal system would be turned into a joke.
Meanwhile, your criminal defense lawyer has to be familiar with what is referred to as a ‘supervisor’s conference.’ Anytime your lawyer is dissatisfied with the plea bargain offer that the Assistant DA has offered, your lawyer can always go over that person’s head and speak with the supervisor. For Steve’s case, I had to have 2 separate ‘supervisor’s conferences’ in order to get the 3 weapons possession charges lowered to ‘disorderly conduct,’ which is a violation, not a misdemeanor.
At the 1st ‘supervisor’s conference,’ I brought Steve’s employer with me to explain the situation. But not only was the employer very inarticulate to begin with, he was not very convincing. Therefore, I had to set up a 2nd ‘supervisor’s conference,’ at which point I brought the person who was supervising the security assignments on the night that Steve was working and later arrested. The thing is, the person I brought for the 2nd conference was much more convincing than Steve’s employer. He explained to the DA’s Office that all the persons who worked security (such as Steve) were given 24 hours to dispose of all the items they confiscated while on the job, including weapons. Steve was arrested only a few hours after finishing the job wherein he had confiscated those weapons.
Everything that I told the DA’s office was the truth. Steve never denied that he had these weapons in his car, never claimed that the arresting police officer abused his authority, etc. This case is an excellent illustration of how I always advocate for my client and push for the best outcome possible. This case took close to 1 year to finish, but I’m sure that Steve can tell you that it was well worth it. He pled guilty to ‘disorderly conduct,’ which meant the following:
no jail time, no criminal conviction, no community service…….only a small court ordered fine.