Personal Injury/Criminal Hotline

2006-08-05T09:00:00.000-04:00

Had This Happened in NY Mel.....

Paying a $500 fine and walking out of a police station is nearly more than a slap on the wrist. The longtime actor and father of seven, derailed police officers and today spends more time apologizing for his comments instead of his actions.

Had this happened in NY Mel would have been held overnight in jail and arraigned before a judge before he waltzed back into the limelight.

So is it that California is so blinded by the celebrity population that they get away with everything from DWI to Murder and Child Molestation? I vote that the next celebrity murder case be tried out in Suffolk County New York. The jurors out in Riverhead should be given the chance to do what they do best which is to "hang them high." What about sending them to Texas? That would be another good venue for those who have seriously pushed the limits of our legal system.

Would OJ have had a chance in the lonestar state? Would Michael Jackson's stomach ache excuses have stopped a judge in Texas from throwing his restructured posterior in jail for contempt upon his untimely arrival in his pajamas? I think not.

Perhaps the sun is just too darn bright out there in LA LA land. A bit of free advice for all of you celebrities...count your blessings that all your little "mishaps" fall under the jurisdiction of the state on the left coast. Should you run afoul of the law here on the right coast or I dare say somewhere in the middle be prepared to be treated just like any other guilty American. On second thought....stay there...

2006-07-25T21:47:00.000-04:00

Identity Theft
What is identity theft?
Identity theft is a crime that involves one person appropriating the personal information of another in order to commit fraud. Identity thieves wrongfully obtain the names, addresses, birth dates, Social Security numbers, and bank account numbers of their victims and use this information to open credit card accounts, apply for loans, open bank accounts, etc. Oftentimes, seasoned identity thefts are wily enough to put in for a change of address right after applying for an account. That way the victim does not receive the unpaid bills to know that something is amiss. Being a victim of identity theft can mean ruined credit and a host of other hassles and problems. Identity theft is a felony, and thieves face heavy penalties if caught.

What are the different types of identity theft?
Identity theft can take several forms. The one common denominator is unauthorized use of an individual’s personal information with the intent to commit fraud. According to some statistics, identity theft is used most often to commit credit card fraud, bank account fraud, and phone/utilities fraud.

True Name Fraud
True name fraud occurs when an identity thief uses a victim’s data to open new accounts. Thieves usually use such accounts to make large purchases that they never pay off. It is usually in true name fraud that a thief changes the billing address so the victim does not find out about the delinquent account.

Account Takeover
Perpetrators of identity theft may also use your personal information to access your accounts. For example, if your credit card falls into the hands of a thief, he or she may use it to charge purchases to your account. Tech-savvy criminals may hack into online accounts to make withdrawals, transfers, or other transactions.

Criminal Identity Theft
Criminal identity theft is particularly ruthless; it occurs when a person who is arrested for another crime gives the victim’s information to the police instead of his or her own. Criminal records, fines, and outstanding warrants can thereby be clandestinely attached to the names of innocent victims.

Some identity theft statistics
It is difficult to track the frequency with which identity theft occurs, but some federal, state, and other agencies have compiled statistics based on the information they do have.

Approximately 42% of the cases reported to the Consumer Sentinel (a Federal Trade Commission database) were related to identity theft.

The Consumer Sentinel reported that an estimated 90% of victims had no relationship with the person accused of stealing their identity.

A joint study by the California Public Interest Research Group (CALPIRG) and the Privacy Rights Clearinghouse (PRC) found that most victims surveyed did not find out that their identity had been stolen for more than a year after it occurred.

The CALPIRG/PRC study also identified denied credit applications and loans and phone calls from creditors asking for payment as the most common ways in which people found out that they were victims of identity theft. About a third found out through each of these means.

According to the Consumer Sentinel, 20% of identity theft victims had more than one type of fraud committed against them.

According to the Consumer Sentinel, information obtained through identity theft was used to open fraudulent credit card accounts in over 40% of reported cases.

A 1998 report by the General Accounting Office made Congress aware of Secret Service data attributing a loss of $745 million in 1997 (up from $442 million in 1995) to identity theft.
How can identity theft be prevented?
In the information age, it is difficult to keep your personal information secret. In fact, many legitimate transactions require that you provide identifying information. There is no surefire way to keep your information private, but you can take steps to minimize your risk.

1. Be watchful. Pay attention when your bills come and look for inaccuracies. Order your credit report from all three major credit bureaus at least once a year.

2. Be wary. Only give out your social security number if absolutely necessary. Sometimes you may be allowed to substitute another type of information for it. Never give out personal information over the phone or Internet unless you are absolutely certain as to the identity of the other party.

3. Be wise. If your purse, wallet, credit card, or driver’s license is lost or stolen, immediately contact the major credit card companies and have a “fraud” warning placed on your account. Do not throw away papers with identifying information without tearing them up or shredding them. Avoid leaving your information exposed whenever possible.

If you have been a victim of identity theft, you may want to consider contacting an identity theft lawyer who has experience in these types of cases. People accused of identity theft crimes should contact a qualified criminal defense attorney with experience in identity theft cases.

2006-07-20T11:55:00.000-04:00

Child Protective Services Act

The Purpose of the Law

The purpose of New York State 's Child Protective Services Act is to protect children from dangerous situations and to help parents create a safe home for their children. Child protection means protecting children from harm and also providing services to the entire family to help create a safe and healthy home.

What is Child Protective Services?

Child Protective Services is responsible for investigating allegations of the abuse or maltreatment of children that are directly caused by the actions of the child’s parent or caretaker or are allowed to happen to the child by the parent or caretaker.

How is a report of child abuse or neglect made?

In New York State all reports of abuse or maltreatment are received by the State Central Register which is located in Albany via a special telephone hotline which can be accessed 24 hours a day, 7 days a week. The phone number to make a report is 1-800-342-3720. Calls are accepted both from the general public, who are able to remain anonymous, and from certain professionals who by law are designated as mandated reporters. Reports of abuse or maltreatment may be made for children from birth up to their 18th birthday. Each county has its own Child Protective Services Department.

Investigation
When Child Protective Services receives a report of suspected child abuse or neglect, a CPS caseworker is assigned to look into the complaint. The caseworker must gather information about how the family is functioning to (1) determine whether abuse or neglect is occurring and, if so, (2) what steps are required to protect the child and help the family.

Usually, the first steps in investigating a report are to check for previous reports, contact the person who made the report, visit the home, and see the children. The caseworker may also need to talk to other people who know the family. The caseworker must look for facts and evidence of abuse or neglect. During a visit, she or he will try to learn what your home is like, how you are caring for your children, whether there are problems that need immediate attention, and what might make things different.

The caseworker must decide if immediate action is needed. Children may be removed from their home and placed in protective custody only if the caseworker believes that there is imminent danger to their life or health at home. If so, the caseworker will ask you to agree to place the children for a period of time in a foster care setting or with a responsible relative. If you refuse, the caseworker can ask a Family Court judge to require this be done. If the children are in immediate danger, they may be placed temporarily without a court order. But within three working days, a judge must review the temporary placement
The Role of the Courts
Most child protective cases are not taken to court. This only occurs if the CPS caseworker and supervisor believe that involving the court is necessary to help and protect a child. Going to court can be a difficult and frightening experience. It is hard to talk about your family life to strangers. You may fear having your children taken away. This section will try to explain what to expect if you do go to court.

There are two types of courts in New York that may be involved in a child abuse and neglect case, Family Court and Criminal Court. The main role of Family Court is to ensure the safety of the children, focusing on the welfare of both the child and the family. The role of the Criminal Court focus is to prosecute charges such as assault, battery, sexual abuse, or homicide. Criminal Court trial may result in probation, mandated treatment, or a jail sentence.

Except in the most severe cases, the Family Court is the one that handles child abuse and neglect. A case may be referred to Family Court because a child is in danger, or because the family is unable to provide minimal care to the child even when help is provided. Also, if the family refuses to accept services that CPS considers necessary for the child's health or safety, the case may be referred to Family Court. The Family Court judge has the authority to require a family to receive services. If necessary, the judge may remove children from their home if child abuse or neglect is proven.

Usually children are not removed from their home. Unless children are in imminent, immediate danger, the goal is to keep a family together.

If the CPS caseworker finds no evidence of abuse or neglect after the investigation, the report is said to be "unfounded", and all records are sealed. CPS is required to make this determination within 60 days.

It is always advisable to consult with an attorney in the event a CPS caseworker contacts you.

To Report Child Abuse & Neglect: Call 1-800-342-3720. NYS Child Abuse & Maltreatment Register, NYS Office of Children & Family Services, PO Box 4480 Albany, NY 12204

Prevention Information Resource Center and Parent Helpline, 24 hours a day, in English and Spanish, at1-800-342-7472

2006-07-13T18:03:00.000-04:00

What does PINS mean?

PINS stands for Person In Need of Supervision.

A PINS petition can be filed in the Family Court against a minor under the age of 18 who is alleged to be incorrigible, truant from school, and beyond the lawful control of his/her parents. Usually the petition is filed by a parent, guardian, or school official, but the petition can also be filed by the police as well.

A PINS, according to Family Court Act 712(a), is defined as a person under the age of 18, who does not attend school regularly although required to do so, or who is incorrigible, ungovernable, or habitually disobedient, and beyond the lawful control of his/her parents, or is guilty of unlawful possession of marijuana.
Before a PINS petition is heard in Family Court, an effort is made to settle or adjust the case by conferring with the child and his or her parent(s). A family may be referred for counseling or other services as part of this adjustment process. If the PINS petition does go to court, the Family Court judge has a number of options including: dismissing the petition; sending the child home with a warning; suspending the petition so that the child can demonstrate improved behavior; putting the child on probation supervision; or placing the child in a residential program for an initial period of up to one year.

2006-07-06T13:47:00.000-04:00

FREQUENTLY ASKED QUESTIONS ABOUT PERSONAL INJURY

Q. I've been in an accident. Can I sue?

A. Whether or not you have a case depends on many variables which a lawyer must take into consideration before answering such a question. However, some general principles do apply.

In an auto accident, for instance, under New York's "no fault" insurance law, one's injuries must cross a specific threshold of seriousness before one may sue. Insurance Law § 5104(a). A "serious injury" is defined as a personal injury which results in death, dismemberment, significant disfigurement, a fracture, loss of a fetus, permanent loss of use of a body function or system, or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which would constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. Insurance Law § 5102(d).

In the event that you should slip and fall on a public sidewalk in the City of New York, the city may only be held liable if written notice of a defective condition in the sidewalk was given to the city and the city failed to remedy the problem within 15 days. "Pothole Law," NYC Administrative Code § 7-201(c)(2).

Q. Do I need a lawyer?

A. If you have been injured, an attorney can identify the issues which determine whether or not you are entitled to compensation, and proceed accordingly. The office of Barbera & McElhone will handle all aspects of your case, from the initial consultation to payment of any award you may receive.

Q. How can I afford to pay for an attorney?

A. Matters of personal injury are handled on a contingency fee basis, meaning that the attorney fee is deducted from the settlement or award. No attorney fee is paid unless you are paid.

Q. How long can I wait to bring a lawsuit?

A. The time limit for bringing an action for personal injury based on negligence in New York is three years from the date of occurrence. Some types of accidents, however, such as those in which the state or its employees are a party, require the filing of notices as soon as ninety days. It is therefore important that you see a lawyer as soon as possible.

Q. Will my medical bills be paid for?

A. If you have a right to sue for your injuries, your medical bills and other expenses need to be recovered. It is important that you obtain proper treatment for your injuries and reports from doctors will also probably be necessary. You may be able to use your own physician or we may recommend one for you.

If you have been injured in an auto accident, you may be entitled to "first party benefits" which are paid by your insurance company. Insurance Law § 5102(b).

Q. What about my loss of income, or pain and suffering?

A. Loss of income as well as pain and suffering are all losses for which your attorney will attempt to recover compensation.

2006-06-29T10:29:00.000-04:00

Tickets...Violations...and Assorted Information Regarding the Motor Vehicle Code

The New York State Department of Motor Vehicles does not record convictions of moving traffic violations by NYS non-commercial licensed drivers in other jurisdictions, except traffic offenses committed in the provinces of Ontario and Quebec, in Canada. Therefore, except for traffic convictions in Ontario and Quebec, out-of-state traffic convictions are not added to your New York State "violation point" driving record.

However, your New York State license will be suspended if you fail to answer a ticket for a moving violation in any state except Alaska, California, Michigan, Montana, Oregon or Wisconsin. Your license will remain suspended until you answer the ticket. Likewise, drivers from any state, except those from the six states listed above, will have their driver licenses suspended in their own state for failure to answer a moving violation summons in New York State.

If you are over 21 years old, and are convicted of an alcohol-related driving violation (e.g., DUI) in any other state or the provinces of Ontario and Quebec, in Canada, your New York State driver license will be revoked for at least 90 days. If you are convicted of a drug-related driving violation in any of these jurisdictions, your New York State license will be revoked for at least six months. Out-of-state drivers ticketed in New York State should contact the motor vehicle department of their own state or province about the effect of a conviction.

If you are under 21 years old and convicted of any alcohol or drug-related violation that occurred out of state on or after November 1, 2000, your New York State driver license will be revoked for at least one year. If you have any prior alcohol conviction, even if the violation occurred before November 1, 2000, your license will be revoked for at least one year or until the age of 21, whichever is longer.

The New York State Department of Motor Vehicles records the conviction of any New York driver for criminal negligence, homicide, or assault that arises out of the operation of a motor vehicle and which results in death. In addition, the driver's license or privilege to drive and all vehicle registrations will be revoked, whether the conviction occurred in this state or elsewhere.

MANDATORY SUSPENSION OR REVOCATION
Your driver license or driving privilege can be suspended or revoked for many reasons. The following suspensions and revocations are required by law:

Alcohol and Drug Violations
Driving while ability impaired by alcohol (DWAI): 90-day suspension.

Driving while ability impaired by drugs (DWAI-drug): minimum six-month suspension.

Driving while intoxicated (DWI), with .08 of one percent blood alcohol content (.08 BAC): minimum six-month revocation.

Driving under the influence of alcohol or drugs out-of-state (DUI): minimum 90-day revocation.

DWAI violation within five years of any prior alcohol or drug-related violation: minimum six-month revocation.

DWI, .08 BAC, or DWAI-drug violation committed within ten years of any prior DWI, .08 BAC, or DWAI-drug violation: minimum one-year revocation.
Chemical Test Refusals (Also see Chapter 9)

Chemical test refusal, drivers over age 21: minimum six-month revocation.

Chemical test refusal, drivers over age 21, within five years of a prior refusal revocation or any alcohol or drug-related violation: minimum one-year revocation.

Chemical test refusal, drivers under age 21, first time: minimum one-year revocation.

Chemical test refusal, drivers under age 21, second time: minimum revocation until age 21 or one year, whichever is longer.

Zero Tolerance test refusal: minimum one-year revocation.
Younger Drivers
If you are under 21 when arrested, conviction for any of the alcohol or drug related violations listed above will result in a minimum one-year revocation. A second violation while under 21 requires a revocation for one year or until you reach age 21, whichever is longer. These penalties apply even if you are adjudicated as a youthful offender, or if you were arrested or convicted out of state (see Traffic Tickets Received Out Of State).

Under the state's "Zero Tolerance Law," a driver under 21 will have his or her license suspended for six months if found to have a BAC from .02 to .07. A .02 BAC could occur with as little as one drink. For a second Zero Tolerance violation, the driver's license will be revoked for one year or until the driver turns 21, whichever is longer.

NOTE: Motorboat and snowmobile operators under 21 years old who drink alcohol are subject to similar penalties and sanctions against their privileges to operate a motorboat or snowmobile.

Speeding and Other Violations
Your license will be revoked for at least six months if you are found guilty of:

Three speeding and/or misdemeanor traffic violations within 18 months (based on date of violation, not date of conviction).

Three "passing a stopped school bus" violations within three years.

One violation of "leaving the scene of a personal injury or fatal accident."

One "participating in a speed contest" violation. Conviction of a second speed contest violation within 12 months results in a revocation of at least one year.
No Insurance
Your license will be revoked for at least one year if you operate or allow another person to operate your uninsured vehicle, or if the DMV receives evidence that you were involved in a traffic crash without being insured. If your vehicle has a lapse in insurance coverage, you must turn in the license plates and registration to a motor vehicle office. Even if the vehicle is taken off the road and not being driven, you must surrender the plates or you may face civil penalties, registration suspension and/or license suspension.

Indefinite Suspensions/Revocations
Your license will also be suspended indefinitely if you fail to file an accident report, submit a bad check for DMV fees, fail to pay child support, or fail to satisfy a court judgment that results from a traffic accident. This suspension will be in effect until you correct the condition that led to the suspension.

Commercial Drivers
Because of their extra responsibility to traffic safety, drivers of tractor-trailers, heavy trucks and vehicles carrying hazardous materials face stiffer penalties than non-commercial drivers if convicted of certain violations. For information about the commercial driver penalties, read Section 1 of the Commercial Driver's Manual (CDL-10).

It is a felony to drive a school bus carrying one or more students while you are impaired or intoxicated. If you are found guilty of an alcohol or drug-related violation while driving a school bus, taxi, or livery vehicle while carrying a passenger, your license will be revoked for at least one year. If found guilty of a second violation within ten years, you could be permanently prohibited from holding a Class CDL license

TRAFFIC CRASHES
Today, except where required by law, the term "accident" is frequently being replaced by "crash." This is because a "crash" can usually be avoided. If you are involved in a traffic crash in which another person is killed, your license may be suspended or revoked after a DMV hearing even if you were not charged with a violation at the time of the incident.

FEES AND CIVIL PENALTIES
If your driver license has been suspended for a definite period, such as 30 days, 90 days, etc., your license will not be returned until you pay a non-refundable $25 suspension termination fee.

In most cases, if your license has been revoked, you may not apply for a new license until you pay a non-refundable $50 re-application fee. This fee is not required if your license was revoked due to operating without insurance or if you had been issued a conditional or restricted use license.

After the following revocations, you must pay a civil penalty to DMV before your application for a new license can be accepted:

Operating without insurance or uninsured accident: $750 civil penalty.

Chemical test refusal: $300 civil penalty ($350 if while operating commercial motor vehicle).

Chemical test refusal within five years of a prior alcohol, drug or refusal-related revocation: $750 civil penalty.

Zero Tolerance Law suspension: $125 civil penalty and $100 suspension termination fee.

DRIVER RESPONSIBILITY ASSESSMENTS
In addition to paying any fines, fees, penalties and surcharges authorized by law, you may have to pay a "Driver Responsibility Assessment" for certain violations that occur on or after November 18, 2004, that result in a conviction or administrative finding. Your learner permit, driver license, or driving privileges will be suspended if you do not make these payments.

If you are convicted of Driving Wile Intoxicated (DWI), Driving While Ability Impaired (DWAI) or Driving While Ability Impaired by Drugs, or if you are found to have refused to submit to a chemical test, you will be required to pay a driver responsibility assessment of $250 each year for the next three years.

If you are convicted of one or more traffic violations resulting in six points in any 18-month period, you will be required to pay $100 each year for the next three years. For each additional point accumulated during that period, you will be required to pay another $25 per point every year for three years. For information about how points are assessed, see "The Point System" in this chapter. Completion of a motor vehicle accident prevention course will not reduce the calculation of points affecting the driver responsibility assessment.

DRIVING WHILE SUSPENDED OR REVOKED
It is a criminal violation to drive while your license is suspended or revoked, and there are mandatory fines from $200 to $5,000. You also may face mandatory imprisonment or probation, and seizure and possible forfeiture of the vehicle being driven. More severe penalties apply to drivers who are caught driving while intoxicated or impaired by alcohol or drugs while their licenses or privileges are already under suspension or revocation for a previous alcohol or drug-related incident, and to drivers caught driving with 10 or more suspensions for failure to answer traffic tickets or pay fines. In addition, drivers with 20 or more suspensions for failure to answer tickets or pay fines face a criminal charge, even if not driving when caught. The penalties for driving while suspended or revoked are described in detail in the publication Suppose Your License Were Taken Away (C-12) available from the DMV Internet Office, by request from a DMV Call Center, and at any motor vehicle office.

2006-06-22T12:00:00.000-04:00

Know the Law: Explaining
NY's Anti-Stalking Law
Explaining New York's
New Stalking Law - with thanks
to former Albany County Assistant DA
D.J. Rosenbaum

The term "stalker" often invokes for us the image of a trenchcoat clad stranger lurking in the shadows, following every move made by the target of his obsession. But, stalking is not only a crime committed by strangers. Stalking cases often involve acts committed by a person with whom the victim is either acquainted or has had a relationship in the past. And, while there are instances where stalking of a former intimate partner is not precipitated by violence in the relationship, in many instances victims of domestic violence report stalking behavior committed by their abusers not only after the victim has ended the relationship, but also while the relationship is still ongoing.

Indeed, a 1997 National Institute of Justice study of stalking found that eighty percent of stalking victims who were stalked by their current or former intimate partner had, at some point in their relationship, been physically assaulted by their partner, and thirty-one percent had been sexually assaulted by their partner. Also worthy of note is a recent FBI crime report that shows that thirty percent of all murdered women are killed by their husbands or boyfriends who had stalked them.

However, this is not to say that all stalkers of former love interests exhibited violent behavior within the former relationship. Stalking behaviors, and their preceding events, take many forms.

In 1999, the New York State Legislature attempted to criminalize a wide variety of stalking behaviors. To that end, on December 1st of 1999, "The Clinic Access and Anti-Stalking Act of 1999" became effective. The Legislative Intent behind the Act provides a compelling and articulate summary of the dynamics that precipitated the new laws:

The legislature finds and declares that criminal stalking behavior, including threatening, violent or other criminal conduct has become more prevalent in New York state in recent years. The unfortunate reality is that stalking victims have been intolerably forced to live in fear of their stalkers. Stalkers who repeatedly follow, phone, write, confront, threaten or otherwise unacceptably intrude upon their victims, often inflict immeasurable emotional and physical harm upon them. Current law does not adequately recognize the damage to public order and individual safety caused by these offenders. Therefore, our laws must be strengthened to provide clear recognition of the dangerousness of stalking. [Emphasis added.]

These new laws vary in degree, including the class B misdemeanor of Stalking in the Fourth Degree (punishable by up to 90 days is jail), the class A misdemeanor of Stalking in the Third Degree (punishable by up to one year in jail), the class E felony of Stalking in the Second Degree (ordinarily punishable by up to 1 1/3 to 4 years in state prison) and the class D felony of Stalking in the First Degree (punishable by up to 7 years in state prison). The degree of the offense can be enhanced, under the new laws, based upon a prior conviction by the offender to any of a number of specified offenses committed against either the victim of the present offense or a member of her family or, even against another completely different victim.

While we have had laws on the books for many years that apply to stalking-like behavior, the new stalking laws focus specifically on the state of mind of the stalking victim and the fear that the stalker’s behavior is likely to cause the victim. This is quite a change from the traditional "stalking" crimes of harassment, menacing and criminal contempt, which require a specific intent on the part of the stalker to either harass, annoy or alarm the victim, or to place her in fear of injury.

In truth, it is often the case that a stalker’s acts are governed by his obsession with his target and he does not necessarily intend to upset her or cause her to fear him, though, of course, there are many instances where a stalker does indeed intend to upset, or even terrify, his victim. Still, prior to the enactment of the new stalking laws, it was difficult for the criminal justice system to hold accountable the "passive" stalker. Recognizing this deficiency, the Legislature wisely chose to hold stalkers accountable for actions that are reasonably likely to cause fear even where the stalker himself did not actually intend such a result.

The new stalking laws also address instances where the stalking behavior is likely to cause the victim to reasonably fear that physical violence will be directed at her family members, friends or acquaintances, or where the acts of stalking are likely to cause the victim to reasonably fear that her employment or career is threatened.

In many of the new laws, an element of the crime involves the "likelihood" that the offender’s behavior will cause the victim to "reasonably" fear a certain type of harm or result. This deliberately specific language raises two very important considerations.

First, this language tells us that the victim of the stalking behavior does not have to actually be placed in fear. Rather, the stalker’s actions must be likely to cause fear. Indeed, as it is not uncommon for a victim of domestic violence to become somewhat hardened and immune (shell shocked) to her batterer’s pattern of abuse, it is important to remember that a victim’s lack of fear does not alleviate the offender’s criminal responsibility.

Second, it is important to note that the term "reasonable" necessarily imparts great relevance to the history that precipitated the stalking behavior. If the fear that the victim is likely to experience must be "reasonable", then her past experiences with, and knowledge of, her stalker become highly probative of her state of mind.

For example, consider the case of a woman who has recently ended her relationship with a man with whom she had been romantically involved. A few days after she broke off the relationship, her former boyfriend left a lily on her doorstep. In fact, he did so three mornings in a row. The victim says that these actions have scared her to death. Is her fear reasonable? We do not know. Add to this example the following additional fact: The former boyfriend had told the victim, in the course of their relationship, that if she ever left him he would kill her. Now is the fear induced by the lilies reasonable? Not yet. Add one more fact: The victim hates lilies because they remind her of funerals . . . and her ex-boyfriend knows this. Now, finally, the victim’s fear makes sense. In stalking cases, context is everything. And, without knowledge of the history precipitating the stalking behavior, there is no context from which to make sense of the state of mind of the stalking victim.

Sometimes however, if you look closely enough, the context is apparent even without knowledge of the history between the parties. Consider the case of a man who sends several letters to his former girlfriend. The letters are non-threatening in nature and concern the return of property. On the front of the envelopes in which the letters were sent, the man’s return address is listed as "125 Cemetery Road". The victim does not know whether or not her former boyfriend actually lives on Cemetery Road; she, in fact, has no idea where he presently lives. Without knowing anything about the dynamics of the couple’s former relationship, consider the following two facts: The man does not live on Cemetery Road, and Article 125 of the Penal Law contains the homicide statutes. In this case, even though the victim does not put the pieces together and is therefore not actually afraid, can we not say that the man’s actions are likely to cause her reasonable fear?

While the new stalking laws are rather complicated and not easily understood, they encompass a wide range of possible acts. As with any new law, the statutes are also now open to judicial interpretation and will, no doubt, in the coming years evolve into a more definable and structured category of charges. No law is perfect, but it seems that the policy behind the enactment, coupled with a shift in focus to the victim’s state of mind, provides us with much needed, and long overdue, tools with which to battle stalking behavior and its terribly overwhelming impact on the women who are subjected to a type of pattern of abuse that has, until now, been dangerously neglected by the criminal justice system.

D.J. Rosenbaum, Assistant District Attorney

Domestic Violence Unit of the
Albany County District Attorney’s Office

August, 2000

2006-06-17T07:44:00.000-04:00

What To Do After a Dog Bite
If a dog's bite has broken human skin it is best, to report it to the Animal Control Facility in your area.
If the dog is loose they will probably require the owner to pen the dog for several days to make sure they don't have any diseases like rabies. This is the quarantine process. It is important to do this after a dog bite in order to protect other people who may get bitten by a dog so the authorities can determine if the dog is dangerous and a continuing threat. It is also important to do this to protect the health of the person who was bitten.

It is especially important to report the dog attack if there was a serious dog bite injury. This dog bite report will be evidence for the insurance company, and if need be, a jury. The evidence will help you get all the money you deserve for a dog attack claim.

Another way to document the wound is with photos. Be sure to take good pictures of the wound right away and as the wound heals and finally if there is scaring left. A trip to the doctor is also advised in order to get good evidence of the dog bite. An attorney can help you get good photos of the wound if you are unable to do so yourself.

Liability is often more of an issue in dog attack cases than in car accident cases. Be sure to get the name and address of the owner of the dog as well as the breed of dog. Also get the name, address and phone number of any witnesses of the event, as well as the information on anyone saying they have seen the dog biting someone else.

2006-06-12T07:01:00.000-04:00

DWI/DUI

According to the National Highway Traffic Safety Administration, every 31 minutes someone in the U.S. dies as a result of driving under the influence of drugs or alcohol. Every year, more than 1.5 million drivers are arrested for driving under the influence (DUI) or Driving While Intoxicated (DWI). The cost of alcohol-related crashes in the U.S. alone adds up to more than $51 billion annually.

All 50 states have now set .08% Blood Alcohol Concentration (BAC) as the legal limit for Driving Under the Influence. For commercial drivers, a BAC of .04% can result in a DUI conviction nationwide. For those under 21, there is a zero tolerance limit—any amount of alcohol is grounds for a DUI arrest.

Should you ever find yourself faced with a DUI arrest, your first step should be to hire the services of a DUI attorney. DUI attorneys and DWI lawyers are highly trained in the DUI and DWI laws of your state, and many times they can lessen your fines or penalties.

Obviously, the best decision is never to drink and drive while impaired. However, if you have been cited for a DUI or DWI, it is important for you to understand what may happen as a result of that ticket. While penalties vary from state to state, a first conviction on a DUI will likely include the following: a substantial fine; the restriction or suspension of your driver’s license; mandatory attendance at a state-approved DUI education class; and probation.

In addition to those penalties, you could be required to perform community service, attend AA meetings, have an ignition lock installed on your vehicle, or even have your car impounded. Hiring an experienced DUI lawyer can, in many cases, lower the impact of these penalties. Remember that all communications between you and your DUI attorney will be held in the strictest confidence—there is no reason to be embarrassed if you need to call upon their services.

Being convicted of driving under the influence can also impact your life in ways you may not be aware of, including: loss of employment (and the inability to be employed in certain jobs in the future), higher insurance rates, serious financial setbacks, personal and family embarrassment, and having that conviction on your driving records for years--if not forever. While citizens are entitled to represent themselves in court when facing a DUI charge, the smartest way to contest a DUI ticket is to hire a DUI attorney. These DUI lawyers specialize in these cases and know the very best ways to contest DUI charges in your own state. Because of the expertise of a DUI or DWI attorney, they can check the case for errors, have samples independently analyzed, move to suppress certain evidence, arrange for expert testimony and witnesses, contest license suspensions, and negotiate reduced penalties and sentences.

2006-06-08T05:54:00.000-04:00

What should you do if you have a car accident?

Car accidents can be very stressful -- it can be difficult to think clearly. Read the tips below to learn what you should do to minimize the damage after a car accident.

Make sure you and your passengers are OK. Move as far off the roadway as possible, but stay at the scene of the accident. Warn oncoming traffic by activating your hazard warning lights or setting flares.
Call the police to report the accident.
Contact your insurance representative.
Do not admit fault for the car accident or discuss the car accident with anyone other than the police and your claims representative. Stay calm and resist the temptation to get upset or argue with the other driver, even if you believe the car accident was his or her fault.
Exchange vital information with the other driver involved in the car accident. Write down the name, address, phone number and license numbers for all drivers and witnesses, particularly those who were not riding in a vehicle involved in the accident. Ask for the insurance companies and policy numbers for drivers involved in the car accident.
If you believe you are injured, ask to be taken to the hospital emergency room to get evaluated, and if necessary follow up with your own physician upon your return home.

2006-03-16T13:29:00.000-05:00

HAPPY ST. PATRICK's DAY- DON'T DRINK AND DRIVE

Nothing will ruin your St. Patrick's day celebration more than getting caught making the ever poor decision than to attempt driving home after hoisting 4 or 5 Harp Lagers with Jamison chasers. Even worse, if you are meeting a police officer on the side of the road because you were involved in an accident where someone was injured, your problems are just beginning. If you didn't take a cab or designate a driver and the green carnation on your lapel is wilting as you face a judge, get yourself bailed out, get agood nights sleep, and then seek out qualified counsel who work in the courthouse you are in on a daily basis. The best attorneys in New York City are not the people to hire for your case in the suburban and rural counties 100 miles away.

One last tidbit of traditional Irish Wisdom-- no criminal lawyer knows the system, inside and out, like a defense lawyer who was a prosecutor in the same county. Drive safely and Erin Go Bragh

2006-02-07T12:04:00.000-05:00

PERSONAL INJURY CASES AND THE SMALL FIRM

It is unfortunate that some people believe the myth that their personal injury case will be handled better by a "big" law firm. Larger firms, who are increasingly being heard from on radio and daytime television, are aggressively marketing themselves with the promise of large, fast settlements. When I see or hear these commercials, I reminisce about the not so distant past when this kind of advertising was virtually non-existent in the legal field, and I reflect on why this kind of advertising was thought to be much too tacky a way for a law firm to promote its business.

The world and the ethics of advertising may have changed, but the function of your lawyer and the things you want to know about him have not changed. It used to be so obvious a concept that you chose a lawyer based on reputation, and that a referral from a trusted friend or family member was really the ideal way to meet a lawyer. Then, after you've spent some time meeting with that lawyer at his office, where you can get an idea of how his practice runs, you choose whether or not to retain that lawyer.

Large firms can work like an assembly line. I spent five years as a young lawyer working for a firm where the tall, grey haired partner would meet with the new personal injury clients, promise them a great deal of money and whatever else they wanted to hear, and then put the file into the "system". When it came to the actual litigation (depositions, conferences, trials) I would be the one handling the case. Problem is, when the client would meet me and my then late 20's baby face, they would inevitably feel like they had been tricked. Even worse, when we had negotiated the case and settlement numbers were being discussed, they often had the earlier quoted inflated numbers in their head.

When a new client comes to my office, often they are referred by a prior satisfied client, or they read my profile at www.barmaclaw.net. They learn right away that I will be their lawyer at the beginning, middle, and end of their case. When they have a question or otherwise want to talk about their case, they call me and get a return phone call from me, if I'm in Court at the time of their call. There is no assembly line, no false promises, no hype, and no baby faced lawyers behind the scenes doing the crucial work.
The result is a good outcome to the case, and the formation of a relationship that often leads to future referrals and a sense of trust. It may sound old-fashioned, but is the way the attorney client relationship should be, and it can only be had on the small law firm level.