The "war on drugs" has gone on for nearly 40 years and there's no victory in sight. But, there's plenty of victims...sadly some of the victims aren't aware of some of the scariest consequences that a drug conviction can result in. For example, in New York State possession of less than an ounce of marijuana isn't a criminal offense, its simply a "violation" called "Unlawful Possession of Marijuana"(UPM). On paper its a pretty innocent sounding offense, roughly the equivalent of a traffic ticket. You pay a fine and go your way...well, not quite!
For first time offenders caught with more than an ounce of pot (a misdemeanor) the typical resolution is a plea bargain down to a UPM violation. Sounds good, right? Well, what most people don't know (and a lot of attorneys don't either) is that even a conviction for a violation like UPM can deprive you of college financial aid for ONE YEAR! Yep, its right there in the 1998 Higher Education Act passed by Congress. So, if you're in college or about to go to college are are relying on either Federal or State tuition aid, be careful about accepting any pleas to minor pot (or other drug offenses). It could really cost you down the road...
Tuesday, October 10, 2006
Monday, October 02, 2006
Town and Village Justice Courts-NYT Article
Ummm....long time no post (from me). It was a busy summer with several cases that really dragged on. If anyone hasn't seen the terrific series of articles in the New York Times about the village and town justice court system in NYS, you really should check it out. Here's a link:
http://www.nytimes.com/2006/09/26/nyregion/26courts.html
It's some very good reporting about a situation that's a total mess in some places. The Times largely focused on upstate T&V courts, many of which have non-lawyer justices handling a variety of criminal and civil cases. From personal experience I can say that working in a court where the judge isn't a lawyer (and doesn't know a whole lot about the law) is scary, frustrating and sometimes, painful. The sad thing is that it's not like the vast majority of these judges don't want to do the "right thing". They do!! The trouble is they don't understand that our criminal law system (as much of a mess as it is) hangs by a thread...and that thread is insuring that every defendent gets at least a bare minimum of due process. All too often, that's what's missing in these courts.
Fortunately, most of the courts I regularly practice in do have attorneys serving as town justices. The major problem in those courts is the lack of a "record". There's no court stenographer or audio tape of proceedings in these courts and that makes it very hard to make an effective appeal of a mistaken judicial decision.
http://www.nytimes.com/2006/09/26/nyregion/26courts.html
It's some very good reporting about a situation that's a total mess in some places. The Times largely focused on upstate T&V courts, many of which have non-lawyer justices handling a variety of criminal and civil cases. From personal experience I can say that working in a court where the judge isn't a lawyer (and doesn't know a whole lot about the law) is scary, frustrating and sometimes, painful. The sad thing is that it's not like the vast majority of these judges don't want to do the "right thing". They do!! The trouble is they don't understand that our criminal law system (as much of a mess as it is) hangs by a thread...and that thread is insuring that every defendent gets at least a bare minimum of due process. All too often, that's what's missing in these courts.
Fortunately, most of the courts I regularly practice in do have attorneys serving as town justices. The major problem in those courts is the lack of a "record". There's no court stenographer or audio tape of proceedings in these courts and that makes it very hard to make an effective appeal of a mistaken judicial decision.
Wednesday, May 31, 2006
Misguided Traffic Enforcement
In the wake of four fatal accidents on the NYS Thruway a couple of months ago, the NYS police have embarked on a "speeding crackdown" along sections of the Thruway where the accidents occurred. Sadly, this ticket 'blitz' will likely have the same result that previous campaigns have...basically nothing will change.
Despite what the state police believe, the problem on the Thruway and other highways really isn't speeding. After all, in Germany there are NO SPEED LIMITS on large sections of the Autobahn. Yet, the fatality rate on the Autobahn is LOWER than the fatality rate on U.S. interstate highways! If speed were the major cause of fatal accidents certainly the fatality rate, in a country where 120mph is routine, should be higher than it is in the U.S., right?
Truth is, the real problem is reckless driving, not speeding. Drivers that routinely pass on the right, truckers that drive in the middle lane of a 3 lane highway and cause people to pass them on the right are what cause most accidents on our superhighways. But, state troopers sitting in their cars waiting for an isolated driver moving at over the speed limit don't discourage reckless driving at all! What they do accomplish is to rack up lots of revenues for the state on the townships where they issue tickets.
Question: has anyone ever seen a NYS trooper give a speeding ticket to a trucker?? Ever?? I've driven the Thruway almost every day for 20 years. I've never seen it happen. I've never seen a trucker get ticketed for tailgating, either. But, I see truckers both speed and tailgate every day. What's the deal? It's an important question because nearly 35% of all fatal highway accidents involve a truck. Maybe giving a few tickets to those guys would make things safer. Of course, that would mean enforcing the law in ways that might actually reduce fatalities.
Bottom line is this: if the NYS police really want to make our highways safer they need to get into their cars and actually PATROL! They need to enforce the laws we have against the kind of behavior that really causes accidents. Nailing the lone 'speeder' who isn't endangering anybody doesn't do a thing.
Despite what the state police believe, the problem on the Thruway and other highways really isn't speeding. After all, in Germany there are NO SPEED LIMITS on large sections of the Autobahn. Yet, the fatality rate on the Autobahn is LOWER than the fatality rate on U.S. interstate highways! If speed were the major cause of fatal accidents certainly the fatality rate, in a country where 120mph is routine, should be higher than it is in the U.S., right?
Truth is, the real problem is reckless driving, not speeding. Drivers that routinely pass on the right, truckers that drive in the middle lane of a 3 lane highway and cause people to pass them on the right are what cause most accidents on our superhighways. But, state troopers sitting in their cars waiting for an isolated driver moving at over the speed limit don't discourage reckless driving at all! What they do accomplish is to rack up lots of revenues for the state on the townships where they issue tickets.
Question: has anyone ever seen a NYS trooper give a speeding ticket to a trucker?? Ever?? I've driven the Thruway almost every day for 20 years. I've never seen it happen. I've never seen a trucker get ticketed for tailgating, either. But, I see truckers both speed and tailgate every day. What's the deal? It's an important question because nearly 35% of all fatal highway accidents involve a truck. Maybe giving a few tickets to those guys would make things safer. Of course, that would mean enforcing the law in ways that might actually reduce fatalities.
Bottom line is this: if the NYS police really want to make our highways safer they need to get into their cars and actually PATROL! They need to enforce the laws we have against the kind of behavior that really causes accidents. Nailing the lone 'speeder' who isn't endangering anybody doesn't do a thing.
Friday, January 27, 2006
Sad, but True...
Someone on one of the listserv's I belong to posted this today. It would be funny if it weren't basically true...
"We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job - our sworn duty - as criminal defense lawyers, to protect our clients from those people." -Cynthia Rosenberry
"We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job - our sworn duty - as criminal defense lawyers, to protect our clients from those people." -Cynthia Rosenberry
Saturday, January 21, 2006
Parole and the Power of "Discretion"
For the past three years I've worked with a pro bono client who's an inmate in the NYS correctional system. Background to this is that my client, at age 14, was asked by older boy from his Bushwick, Brooklyn neighborhood to act as a "lookout" while the older boy robbed a bodega with a gun. The robbery went bad, the store owner struggled with the kid who had the gun and was killed when the gun went off. My client was charged with 2nd degree murder (accomplice felony murder) and at age 15 took a deal his attorney had worked out...accepting a sentence of 7 years to life. At that time the maximum sentence he could have received was 9 years to life (if he had gone to trial and been convicted). Since that deal the client has spent the last 11 years incarcerated. He's had three parole hearings and been denied each time. He's appealed his parole denials three times and been denied twice (the last is pending right now). I've helped file an Article 78 Petition on his behalf, seeking judicial review of the Parole Board's action and been denied.
You might not think that keeping this young man in prison is a bad idea...you'd think that unless you knew him and his record. He had no criminal/juvenile record at the time he was arrested. In eleven years of incarceration he's received on two disciplinary "tickets", neither involving violence, weapons, etc. He's had testimonial letters provided to the parole board from his 4th grade teacher (offering to give him a place to live if paroled!), from a Spofford youth counselor who never writes parole recommendations. So, for a split second decision at age 14, he's spent nearly half his life (and all of his adult life) incarcerated.
What's really troubling about this is that he's not being kept in prison because he's a threat to anyone. He's being kept there because the Board of Parole has become an instrument of a "no parole" policy that Gov. Pataki has trumpeted for more than a decade. Back when my client accepted the 7-life deal, about 25% of offenders in his category were being paroled after either their first or second parole hearings. Since then the rate of parole for this category of inmates has steadily declined and last year was about 1%. Not coincidentally, over that period of time the Board of Parole has become 100% appointees of Gov. Pataki. Moreover, in speech after speech Pataki has made clear that he wants the law changed to eliminate parole for "violent offenders". Of course, Pataki can't retroactively impose that kind of change on people already sentenced...but, the Board of Parole, that's a different story. In effect, under the guise of using the "discretion" that the law gives them to determine who should be paroled and who shouldn't, the Board has instituted an ex post facto sentencing scheme.
How unfair is this? Well, my client gave up his right to a trial and his right to appeal in order to get a slightly lower minimum sentence. He did so because his attorney (not me) advised him that it was worth it because he was very likely to be paroled early.
What can be done? Sadly, very little. Because the Board has the statutory authority to use its "discretion" its almost impossible (absent a foolish on the record statement by the Board) to get a judge to find that the Board was abusing its discretion. Case after case challenging the Board of Parole has gone to court relying on the statistical data to show that "discretion" is not at work. But, except for a couple of cases, the parole denials always stand.
Rule of law, due process...all high minded, noble sounding sentiments. If you're an inmate in NYS they mean nothing!
You might not think that keeping this young man in prison is a bad idea...you'd think that unless you knew him and his record. He had no criminal/juvenile record at the time he was arrested. In eleven years of incarceration he's received on two disciplinary "tickets", neither involving violence, weapons, etc. He's had testimonial letters provided to the parole board from his 4th grade teacher (offering to give him a place to live if paroled!), from a Spofford youth counselor who never writes parole recommendations. So, for a split second decision at age 14, he's spent nearly half his life (and all of his adult life) incarcerated.
What's really troubling about this is that he's not being kept in prison because he's a threat to anyone. He's being kept there because the Board of Parole has become an instrument of a "no parole" policy that Gov. Pataki has trumpeted for more than a decade. Back when my client accepted the 7-life deal, about 25% of offenders in his category were being paroled after either their first or second parole hearings. Since then the rate of parole for this category of inmates has steadily declined and last year was about 1%. Not coincidentally, over that period of time the Board of Parole has become 100% appointees of Gov. Pataki. Moreover, in speech after speech Pataki has made clear that he wants the law changed to eliminate parole for "violent offenders". Of course, Pataki can't retroactively impose that kind of change on people already sentenced...but, the Board of Parole, that's a different story. In effect, under the guise of using the "discretion" that the law gives them to determine who should be paroled and who shouldn't, the Board has instituted an ex post facto sentencing scheme.
How unfair is this? Well, my client gave up his right to a trial and his right to appeal in order to get a slightly lower minimum sentence. He did so because his attorney (not me) advised him that it was worth it because he was very likely to be paroled early.
What can be done? Sadly, very little. Because the Board has the statutory authority to use its "discretion" its almost impossible (absent a foolish on the record statement by the Board) to get a judge to find that the Board was abusing its discretion. Case after case challenging the Board of Parole has gone to court relying on the statistical data to show that "discretion" is not at work. But, except for a couple of cases, the parole denials always stand.
Rule of law, due process...all high minded, noble sounding sentiments. If you're an inmate in NYS they mean nothing!
Trial and Tribulations of Town Justice Court
Recently finished up a traffic case in a local Town Court and, as usual, ended up very frustrated with the "justice" dispensed. The relationship between Town Justices and officers prosecuting their own cases (traffic) sometimes goes way over the line. I've gotten used to seeing magistrates bend over backwards for the police they see week in and week out. But, when an officer's testimony is riddled with contradictions and remarkable coincidences you expect the magistrate to sometimes...just sometimes, actually find the defendant's testimony more credible. Unfortunately, its so rare that when it happens I'm actually surprised. I'd get more specific about what happened this week...but, it might become obvious who I'm talking about and its not about just one Town Justice, things are pretty much the same in most town courts. Enough of a rant...
Medicaid- Pending Changes in Federal Law
For years there has been a huge debate over what is known as "Medicaid Planning" with attorneys and the elderly on one side and government officials on the other. As the costs of Long Term Care (a uphemism for being institutionalized in a nursing home) have skyrocketed, more and more middle class people have tried to find ways to protect their assets from being drained away by nursing home costs. In 2005, the average monthly cost of nursing home care in New York was over $8,000 and the average length of nursing home institutionalization for an elderly person was nearly 3 years. That translates to an average cost of almost $300,000 for the nursing home care of one person! So, its certainly understandable that people would want to see some of their property and money passed on to their children and that a lifetime of saving isn't flushed down the drain of nursing home care. However, the increasing number of people qualifying for Medicaid covered nursing home care and the increasing cost of monthly care (its been rising at more than 2x the rate of overall inflation) has meant that Medicaid costs to govenment have risen to levels approaching 50% of the budgets of many states. Attorneys have responded to their client's desire to protect assets by creating a variety of different strategies involving gifting and/or the creation of trusts. In turn, both state and federal governments have responded by making it more and more difficult for people with the means to pay for nursing home care to avoid doing so. In early 2006 revisions to Medicaid law will take effect that extend the period that Medicaid agencies will "look back" for transfers to other people or to trust vehicles. Many politicians and commentators have criticized Elder Law attorneys for their efforts to find new and creative ways for their clients to protect some resources. These criticisms are totally misplaced. Whether a lawyer feels the current system is irrational or not (I'm one who does), the attorneys duties are clear...namely, to represent their client's interests. If attorneys start to let their views on public policy cloud the kind of counsel and respresentation they give their clients they aren't doing their job. So, finding new ways, looking for loopholes in new Medicaid legislation is exactly what attorneys should be doing in order to further the individual interests of their clients. It is also very clear that the pending changes in Medicaid rules will surely not be the last. As the baby boom generation ages the number of people institutionalized in nursing homes will rise even more rapidly than it has over the past couple of decades. If governments continues to shoulder most of these costs the result will be dramatic increases in taxes or ever more stringent rules for eligibility. The bottom line is that people who don't do their estate and Medicaid planning soon may find that there is no way to protect their assets from long term care exhausting those resources. -Glenn Magnell
For years there has been a huge debate over what is known as "Medicaid Planning" with attorneys and the elderly on one side and government officials on the other. As the costs of Long Term Care (a uphemism for being institutionalized in a nursing home) have skyrocketed, more and more middle class people have tried to find ways to protect their assets from being drained away by nursing home costs. In 2005, the average monthly cost of nursing home care in New York was over $8,000 and the average length of nursing home institutionalization for an elderly person was nearly 3 years. That translates to an average cost of almost $300,000 for the nursing home care of one person! So, its certainly understandable that people would want to see some of their property and money passed on to their children and that a lifetime of saving isn't flushed down the drain of nursing home care. However, the increasing number of people qualifying for Medicaid covered nursing home care and the increasing cost of monthly care (its been rising at more than 2x the rate of overall inflation) has meant that Medicaid costs to govenment have risen to levels approaching 50% of the budgets of many states. Attorneys have responded to their client's desire to protect assets by creating a variety of different strategies involving gifting and/or the creation of trusts. In turn, both state and federal governments have responded by making it more and more difficult for people with the means to pay for nursing home care to avoid doing so. In early 2006 revisions to Medicaid law will take effect that extend the period that Medicaid agencies will "look back" for transfers to other people or to trust vehicles. Many politicians and commentators have criticized Elder Law attorneys for their efforts to find new and creative ways for their clients to protect some resources. These criticisms are totally misplaced. Whether a lawyer feels the current system is irrational or not (I'm one who does), the attorneys duties are clear...namely, to represent their client's interests. If attorneys start to let their views on public policy cloud the kind of counsel and respresentation they give their clients they aren't doing their job. So, finding new ways, looking for loopholes in new Medicaid legislation is exactly what attorneys should be doing in order to further the individual interests of their clients. It is also very clear that the pending changes in Medicaid rules will surely not be the last. As the baby boom generation ages the number of people institutionalized in nursing homes will rise even more rapidly than it has over the past couple of decades. If governments continues to shoulder most of these costs the result will be dramatic increases in taxes or ever more stringent rules for eligibility. The bottom line is that people who don't do their estate and Medicaid planning soon may find that there is no way to protect their assets from long term care exhausting those resources. -Glenn Magnell
Subscribe to:
Posts (Atom)
