If You Give the Police the Finger How Long in Jail Will You Linger?

If You Give the Police the Finger How Long in Jail Will You Linger? 

In January 2013, the police arrested a man in St. Johnsville New York for disorderly conduct, after he flipped off an officer.  After the man’s arrest, the criminal charges were dismissed and he sued the police.  Ultimately, the U.S. Court of Appeals for the 2nd Circuit allowed the man’s lawsuit against the police to survive, ruling that the “ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”

While free speech is one of our most cherished liberties, free speech is subject to court interpretation.  As a result, time after time courts have had to consider the question:  “What are the limits of free speech?”  The answer, even for an experienced criminal lawyer, is not an easy one.  In general, Courts have identified three types of free speech, each protected at a different level:

 

  1. Pure speech:  is the verbal expression of thoughts and opinions before a voluntary audience and has received strong protection from courts.

  2. Speech-plus:  involves actions, such as demonstrating or protesting, as well as words and is not generally protected as strictly as is pure speech.

  3. Symbolic speech:  often involves no speech at all, but rather involves symbols or gestures that courts have judged to be forms of free expression, such as flipping off an officer.  Symbolic speech is always controversial and courts have sometimes held it to be beyond the limits of free speech.

 

So, can you safely flip off a cop without going to jail?  The answer is probably not.  In truth, the police will not appreciate a challenge to their authority and will likely arrest you.  The most common charges in this situation will likely be Disorderly Conduct or Obstruction of Governmental Administration.  In addition, if the police arrest and search you or your vehicle and find evidence of a different crime like possession of drugs, possession of marijuana, or possession of a weapon, you will be arrested and charged with those additional crimes.

 If you get arrested for exercising you free speech rights call Weisberg & Zukher, PLLC. at 315-701-2939 or send us an e-mail and tell us about your case at bestsyracuselawyer.com.  Your initial consultation is always free.  Our experienced attorneys will help you by vigorously defending your case under the guiding principles of Franklin Roosevelt:  “We must remember that any oppression, any injustice, any hatred, is a wedge designed to attack our civilization.”

Call Weisberg & Zukher, PLLC. at 315-701-2939 for a free consultation or send us an e-mail to tell us about your case at bestsyracuselawyer.com.

See related articles:

What are my rights if I am stopped, searched, or arrested by police?

How do I remove a criminal charge from my record?

What you should know about Probable Cause

What is Harassment?

This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Can the Police Legally Search Your Butt After a Routine Stop for a Traffic Ticket?

Can the Police Legally Search Your Butt After a Routine Stop for a Traffic Ticket?

2011 04 11 - 7662 - Washington DC - DC Rights Protest
thisisbossi / Foter / CC BY-NC-SA

On August 5, 2013, a Syracuse police officer stopped a man for a traffic violation when he allegedly failed to use a turn signal.  After noticing him wiggling around in his seat, the police allegedly saw crack cocaine on the man’s seat.  When the man was brought to the Justice Center and a body search was conducted, the police allegedly found crack cocaine hidden in his buttocks.  The man was charged with drug possession third and fourth degree felonies and a drug possession in the seventh degree misdemeanor.

Did the police have the right to search the man’s butt when he was only stopped for a traffic ticket?  As with every drug case, the key issue is whether the police seizure was lawful or did the police violate the man’s search and seizure rights.  The answer requires a lawyer to analyze the legality of the search and seizure had under the federal (Fourth Amendment) and New York constitutions.  As a general rule, when a car is stopped for a traffic infraction, the police may not search absent additional grounds to believe that a crime has been committed.  The police can order the driver or passenger out of the car during a traffic stop and, if the police observe contraband in plain view, they can search the entire car, along with its occupants.  Another permissible reason for the police to search a car is when the police smell marijuana in the vehicle.

Although there are many valid reasons for the police to search a car and its occupants, the police often conduct car searches based on illegal reasons.  Just some examples are:  (1) the car is in a “high crime area;” (2) furtive movements of the car’s occupants, like “wiggling” or moving your hands; (3) the occupants giving different stories as to their travels; and (4) asking the occupants if the car contains “anything illegal they should know about” without observing any facts of a crime.

If the police conduct an illegal search, and the proper suppression motions are brought by your attorney, all property illegally seized will be suppressed and may not be used as evidence against you at trial.  In certain instances, suppression from an illegal search may extend to your statements or confession, which may be suppressed as the “fruit” of the illegal search or “poisonous tree.”

Can the police search your butt after a traffic stop?  The legal answer often depends on the skill and ability of your attorney to conduct a proper and detailed analysis of your case under the applicable search and seizure law.  The attorneys at Weisberg & Zukher, PLLC. have more than a decade of trial and motion experience with search and seizure issues.  If you are charged with a drug crime, our knowledge of search and seizure law will make all the difference in your case, to obtain the best result possible for you.

Call Weisberg & Zukher, PLLC. at 315-701-2939 for a free consultation or send us an e-mail to tell us about your case at bestsyracuselawyer.com.  O

This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Candy Crush While Driving May Not Be So Sweet for Your License

candy-crush-while-driving-best-syracuse-lawyer

It’s the latest craze.  Everyone is doing it.  Yes, it’s Candy Crush.  The almost irresistible urge to check your cell phone to see if enough time has passed for you to get another life, so you can have yet one more turn at that annoying level you’ve been stuck on for days.  Or maybe, your friends sent you a life you can use to finally move down that candy crush path toward earning the envy of everyone around you, as you proudly announce a triple digit level number to signify your genius and skill.
Unfortunately, if you are overcome by the irresistible candy crush urge while driving, you may be pulled over and ticketed by the police for a violation of New York Vehicle and Traffic Law Sections 1225-c (Use of Mobile Telephone) or 1225-d (Use of Portable Electronic Devices).  These rules prohibit the use of cell phones while driving, and a traffic ticket for breaking these rules can be anything but sweet, tasty, delicious, or divine.
If you hold a New York State driver’s license, a conviction will add 2 points to your license.  This can lead to increased car insurance rates, high fines, and, ultimately, to a license suspension if you get 11 points on your license within 18 months.  Although spending hours in court dealing with a cell phone ticket can add to your candy crush status (make sure your phone is set to silent), it’s really not that great.
Even if you do not live in New York State, New York will create a driving record based on your conviction.  If you get 11 points in New York State within 18 months, you will lose your right to drive here and, chances are, that a cell phone ticket conviction in New York will appear on your home state’s driver’s license.

If you get a cell phone ticket, don’t despair.  Call Weisberg & Zukher, PLLC. at 315-701-2939 for a free consultation or send us an e-mail to tell us about your case at bestsyracuselawyer.com.  Our experienced attorneys will help you by vigorously defending your cell phone ticket or any other traffic violation.  We will help you get your life back on track and down that everlasting candy crush path.

This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Robbery vs Burglary

Robbery vs Burglary

Robbery is the taking or attempting to take something of value from another person by use of force, threats or intimidation. The victim is present during a robbery. There are varying degrees of robbery charges in New York State; First, second and third. The degree is based on the extent of force used or threatened, the type of “weapon” used or threatened with, and how many people were involved in the robbery. It should be noted here that even “fake” weapons such as a toy gun, would be considered the same use of force as a real gun. New York Penal Code 160.10 provides that “A  person  is  guilty of robbery in the second degree when he forcibly  steals property and when:…(b)  Displays  what  <strong>appears</strong> to be a pistol, revolver, rifle, shotgun,  machine gun or other firearm; or…” So it is based on the victims perception of the weapon, and if it appears to be real regardless whether it is actually capable of firing.

Burglary, by contrast, is when a person enters a building or a structure with the intent to commit a crime. Burglary also has three degrees which vary based on weapons, injury and whether there was force used to enter the premises such as breaking a window or something of that nature. The victim does not need to be present for a burglary to occur. It’s important to note two things ~ to enter doesn’t require actually breaking in, and includes even an object used to extend your own reach.

New York State takes both of the above crimes extremely seriously. If you have been charged with Robbery or Burglary in the State of New York, it’s imperative that you seek the advice of an experienced criminal defense attorney. If you should have any questions about a particular matter and your charges are in Onondaga, Oneida, Madison, or Jefferson County, don’t hesitate to call us at 315-701-2939 or find us on the web at bestsyracuselawyers.com for a free initial consultation.

See related articles:

How do I remove a criminal charge from my record?

What you should know about Probable Cause

Self-defense or Crime? The Justification defense

Felony and Guns

What is Harassment?

New York Gun Laws

This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

What is a personal injury case?

What is a personal injury case?

Many people hear the term Personal Injury, but aren’t sure what exactly it means and how it relates to the law.  The term personal injury is when there is an injury to a persons mind, body or emotions. This differs from property damage where the damage is not to the person, but a thing, such as a home, car, or other item of worth considered one’s property. When a personal injury is the result of another person or entity’s  negligence, that person or entity is considered to be liable (responsible).

The most common types of Personal injury cases are bodily injury in the event of a motor vehicle accident. This can also involve boats, tractor trailers and other motor equipment. Dog bites, slips and falls, and even some assaults result in civil cases where there is personal injury involved.

Medical malpractice is another form of personal injury. This is the case when a person suffers personal injury due to the negligence of a medical professional while receiving care. Wrongful death is a type of personal injury when a persons negligence causes the death of another. Product liability is yet another form of a personal injury in where a products defect caused injury or harm to a person.

Most attorneys represent clients personal injury cases on a contingency basis, meaning the attorneys fees are paid based on a percentage of the amount of damages awarded. The standard percentage is 33.3% and the attorney will also recover any case costs incurred through the award. In a contingency fee case, if there is no award, the client doesn’t pay anything- the attorney absorbs the case costs.

There is a time limit on which one  has to make a claim for personal injury and these vary by state and the type of case. If you feel like you may have a personal injury case, its important that you contact a knowledgeable Personal Injury Attorney as soon as possible so that they may review your case, and if a claim is to be made, do so within a timely manner. Insurance companies will often attempt to get a person with a personal injury case to settle as quickly as possible before they contact an attorney and often times, those people may have underestimated the true value of their case without proper and experienced legal counsel. Our office reviews all personal injury cases for free, and our personal injury attorneys all work on a contingency basis. If you are in the State of New York and have further questions about Personal injury or feel you have a personal injury case, please CONTACT OUR OFFICE through our website or call our office at 315-701-2939

This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Felony and Guns

Felony and Guns

syracusese-attorney-david-zukher-on-krockOn Krock, a listener called with this question: If I have a felony on my record, can I go to the range with my friends and just shoot the gun as long as I don’t own the gun?The quickest answer Attorney Zukher has ever given on the show~ “No.”

 “No, do not do it.”

New York State is one of the most serious when it comes to gun laws. Gun charges carry serious penalties on convictions. Folks with felonies on their records are urged to stay clear away from any sort of firearm for any purpose, even hunting, or a day at the shooting range.

If a felon is found in possession of a firearm, not necessarily their firearm-but any firearm, they will be arrested. The sentence doubles for these people because they are considered a predicate if their felony conviction was less than ten years old. Sentences for these crimes can carry prison terms of up to 14 years,

In case we weren’t clear, if you have a felony on your record, are on parole, or probation, do not go near a firearm. Don’t hunt with a firearm, take up fishing. Go to the driving range instead of the firing range. Don’t go to the gun show, go to the boat show. If there is a gun in the same room with you, leave the room.

A second listener called with a real dilemma: With a felony conviction on his record, his fiancee’ carries a pistol for work each day and is required to carry the firearm. What should someone in this circumstance do? Attorney Zukher advised the caller to take several steps; Ensure there is a gun safe at the home, and that it remains locked at all times, ensure proper safety precautions are taken, and finally to petition the judge for a Certificate of Relief from Disabilities. In the petition, explain to court the reason and the exception he is seeking, and it may be granted that he is permitted in the same household under certain circumstances depending on the variables of his particular case.

For more information on the Certificate of Relief from Disabilities see our related blog article Removing a Criminal Charge From Your Record. If you should have any questions about a particular matter and your charges are in Onondaga, Oneida, Madison, or Jefferson County, don’t hesitate to call us at 315-701-2939 or find us on the web at bestsyracuselawyers.com for a free initial consultation.
See additional articles:

How do I remove a criminal charge from my record?

What you should know about Probable Cause

Self-defense or Crime? The Justification defense

Robbery vs Burglary

NY Room Presumption- Guns and Drugs belong to everyone

New York Gun Laws

This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

What is Harassment?

What is harassment?

There are a few different degrees and levels of harassment. NY Penal Code S 240.26 defines Harassment in the second degree as;

“A person is guilty of harassment in the second degree when, with
intent to harass, annoy or alarm another person:
1. He or she strikes, shoves, kicks or otherwise subjects such other
person to physical contact, or attempts or threatens to do the same; or
2. He or she follows a person in or about a public place or places; or
3. He or she engages in a course of conduct or repeatedly commits acts
which alarm or seriously annoy such other person and which serve no
legitimate purpose.”

Harassment in the first degree is charged when the defendant has made intentional and repeated acts of the above which gives the victim a reasonable fear of physical injury. The crime is upgraded to Aggravated Harassment when the harassment includes use of written or mechanical communication. This includes telephone, email, recordings etc… An upgraded charge of Aggravated Harassment also occurs there is a previous conviction of Harassment or when it is done because of a

“belief or perception regarding such person`s race, color, national
origin, ancestry, gender, religion, religious practice, age, disability
or sexual orientation, regardless of whether the belief or perception is
correct” – NY Penal Law S 240.30.2 Aggravated harassment in the second degree.

Crimes due to the above are considered “hate crimes”. Aggravated Harassment in the first degree is a Class E felony.

Does posting on someone else’s Facebook page considered Harassment? It could be. Depending on the facts of the case. It could also be considered a form of Cyber- bullying or Cyber-stalking based on the particulars of the case. Facebook has a page with more information regrading this at http://www.facebook.com/help/search/?q=cyber+bullying
Harassment, bullying, and stalking are serious crimes. Convictions can carry sentences of several years in prison. If you or someone you know is a victim of one of these crimes, its important to report all communications with the assailant to the proper authorities. If you have been charged with any of these crimes, it’s important that you seek the advice of an attorney experienced in criminal law.  If you should have any questions about a particular matter and your charges are in Onondaga, Oneida, Madison, or Jefferson County, don’t hesitate to call us at 315-701-2939 or find us on the web at bestsyracuselawyers.com for a free initial consultation.

See Related Articles:

How do I remove a criminal charge from my record?

Felony and Guns

New York Gun Laws

This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

New York Gun Laws

New York Gun Laws

syracuse-lawyers-ny-gun-laws
simonov / Foter.com / CC BY

On January 15, 2103, Governor Andrew Cuomo signed into law the “NY Safe Act” which bans semi-automatic rifles, shotguns and pistols purchased after Jan. 15, 2013 that have more than one prohibited feature – such as a pistol grip, a folding stock or a flash suppressor. This is the state’s new definition of an assault weapon. The ban does not cover pistol grip shotguns. New York will define a large capacity magazine as any that holds more than seven rounds, down from 10. Anyone owning a magazine that holds more than 10 rounds will be required to sell it out-of-state within one year.

Semi-automatic weapons bought before January 15, 2013 must be registered with the New York State Police Department within one year, the registration of the weapon will trigger a background check of the registrant.

High-volume ammunition purposes will be tracked in real time

The penalties for crimes involving gun laws have also become harsher:

Killing a first responder responding to an emergency a first-degree murder charge.
A mandatory five-year minimum prison sentence will be imposed for anyone who uses a loaded firearm during a drug sale or violent felony.

A mandatory three-and-a-half year minimum prison sentence for using an unloaded gun during any drug sale or violent felony.

“Straw purchasers,” people who can easily pass a background check who buy guns for others will be upgraded from a misdemeanor to a Class D felony.

IT IS A FELONY TO POSSES A GUN ON SCHOOL GROUNDS OR A SCHOOL BUS.

Charges are upgraded for those who use community or shared guns to commit crimes.

The new law will now require mental health providers to report those that pose a danger to themselves or others to the County, which in turn reports to the NY Division of Criminal Justice Services.

Other gun control issues including storage of weapons, sale of firearms currently in your possession, sale of ammunition, Kendra’s law, and background checks are affected by the new law. We would encourage you to visit The NY GOVERNORS WEBSITE for more detailed information about the 39-page law and its implications.

As always, it is imperative that if you are charged with a weapons crime in NY State, that you immediately seek the advice of competant legal counsel experienced in gun and weapons defense. If you should have any questions about a particular matter and your charges are in Onondaga, Oneida, Madison, or Jefferson County, don’t hesitate to call us at 315-701-2939 or find us on the web at bestsyracuselawyers.com for a free initial consultation.

See related articles:

How do I remove a criminal charge from my record?

Drugs in a car are Everyones Drugs- The Automobile Presumption

Felony and Guns

What is Harassment?

NY Room Presumption- Guns and Drugs belong to everyone

This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.