On Sunday, March 31, Governor Andrew Cuomo and the New York State Senate and Assembly reached an agreement regarding multiple, significant pretrial criminal justice reforms as part of the state’s 2020 budget. These changes will begin in 2020. The reforms concern speedy trial, discovery, and bail and pretrial release.
The National Association of Criminal Defense Lawyers (NACDL), of which all members of our firm are members of, has long advocated for reform in these specific areas. As part of New Yorkers United for Justice, a coalition of many leading nonprofit organizations promoting for a more fair and humane criminal justice system in New York, NACDL and its state affiliate, the New York State Association of Criminal Defense Lawyers (NYSACDL), have been working in recent months to help bring about meaningful improvements to New York’s criminal justice system.
“From the perspective of a criminal defense lawyer who has practiced in New York for several decades, I can confidently assert that this package of pretrial reforms is the most significant legislative reform of New York’s criminal justice system in generations,” said NACDL Executive Director and Chair of the Board of New Yorkers United for Justice Norman L. Reimer. “While welcome and commendable, it must be that this is just the beginning of criminal justice reform in New York. There is so much work left to be done – from achieving a more robust exercise of executive clemency power, to parole and probation reform, expungement of marijuana offenses, disclosure of law enforcement misconduct records, and more. It is my every hope that the package of reforms agreed to in New York yesterday marks the first stage in a transformation of the State of New York from being a national laggard to a national leader when it comes to criminal justice reform.”
NACDL President Drew Findling said: “The New York reforms are another milestone in the effort to fix the nation’s broken criminal justice system. I am proud of the work that NACDL and NYSACDL have done to support the reform effort – and I congratulate the entire New York criminal defense community.”
With the new provisions of the law, there will be numerous changes to pre-trial criminal procedure. Cash bail will be eliminated for many misdemeanors and non-violent felonies, and police officers will be required to issue desk appearance tickets to most individuals charged with misdemeanors and Class E felonies. Thus, fewer individuals charged but not convicted of an offense will be incarcerated while presumed innocent simply because they can’t afford to post bail.
The changes will also have an important impact upon the discovery process. Previously, New York was considered among the worst states in terms of access to evidence and information by the accused pre- trial. The new rules require disclosure well before trial. Under the changes, individuals will also have the right to review information and evidence held by the prosecution no fewer than three days before the deadline to accept a plea offer, a significant improvement in the law.
Finally, with regard to a speedy trial, new changes provide for improved court oversight to move cases forward consistent with the timetables set forth in the speedy trial provisions.
One of the topics that people frequently call us about is their rights as a tenant. What can a landlord legally do to them? Can they be evicted for not paying their rent, when something in the apartment needs fixing? What happens if the utilities don’t work? These are the types of questions we answer on a weekly basis here at Passalacqua & Associates, but let me give you a brief overview here.
First and foremost, tenants have rights. If you are faced with legal action brought by your landlord, knowing what those rights are becomes vitally important. Your gut reaction may be to just move out and avoid the hassle. Sometimes that is the best course of action, but you will never know that unless you know what your rights and responsibilities as a tenant are.
“What are my rights? And how do I know if my landlord is trying to put one over on me and violate the lease I signed? Excellent question! Here is what you need to know about the New York State Landlord Tenant Law.
- When I moved out, I asked my landlord for my security deposit back and he told me it was used for repairs to the common area of the building. Can he do that?
No! Under New York State Law a security deposit is still technically the tenant’s money.
The standard security deposit is usually equal to one month’s rent. A landlord can use that money to pay for damages done to your apartment or for the last month’s rent. A security deposit is not to be used for routine maintenance in your apartment or around the building in which you live. That money is to be held as a deposit and held in a separate bank account that is not to be touched during the pendency of your lease. The landlord is also required to provide a receipt of the deposit which details the name and address of the banking institution where he placed it as well as the amount of the deposit.
After a lease is up and upon vacating the premises, a tenant is entitled to get the security deposit back with interest. In New York, the window for returning a security deposit is typically 21-45 days of a tenant vacating a property. A landlord is obligated to return the security deposit regardless of whether or not the tenant specifically requests it.
- My landlord threatened to cut off my utilities because I complained about some needed repairs in the apartment. Can he do that?
No. It is illegal for a landlord to cut off utilities.
As part of NY state law, landlords are required to provide a safe and livable environment for their tenants. In addition to the proper security measures, the provision of utilities falls under this category of “safe” and “livable.” Unless a specific court order spells it out, know that your landlord cannot just decide to cut off your electricity, water, or heat.
If your landlord cuts off your utilities or fails to provide them in the proper conditions, he is not fulfilling his duty and responsibility as a landlord and you can withhold your rent payments until such time that he complies.
- Can my landlord raise my rent without telling me?
Maybe, depends on how he does it.
If you are a tenant with a year-long lease, a landlord cannot raise your rent while that lease is in effect. However, once that lease is expired, there is nothing that says the landlord cannot raise your rent for the next lease period. If you have a month-to-month lease, the landlord can give 30 days notice of a rent increase, because technically the lease expires at the end of each month. The lease automatically renews unless the landlord gives a one (1) tenancy period notice of a change or termination of the lease.
- My landlord keeps threatening to evict me. Does he have legal right to do that?
No. It is illegal for a landlord to simply evict a tenant.
In order for a landlord to evict a tenant, there must be a legal cause for the eviction. First, he must provide the tenant with notice of a breach of the alleged of the lease. Then the landlord must file a Summary Proceeding with the local municipal court to have a judge sign a Warrant of Eviction. However, before a judge will do that, the landlord must prove that the reason for the eviction is a legally sufficient one, i.e there was a material breach of the lease, the tenant has created a public nuisance, the tenant has failed to pay rent.
A landlord CAN NEVER engage in self-help, that is when the landlord decides to evict the tenant on his or her own. They cannot change the locks on a tenant or take the tenant’s property and throw it out into the street. There are strict and harsh penalties for actions such as these and any landlord who engages in such practice will surely regret it after the judge hears about what they did.
- Is it possible to withhold rent because the landlord is not fixing things I asked him to fix?
Yes. A tenant may withhold rent from the landlord under certain conditions.
As stated above, a landlord has a duty to provide his tenants with a habitable, safe, and sanitary place to live. That does not mean that a tenant can withhold rent if his mailbox door does not shut properly, or if the faucet in the bathroom leaks. The defect must be substantial and cause the apartment or residence to not be safe to live in. Examples would be no running water or working heat. If the residence was structurally unsound or condemned would be other reasons to withhold rent payments. Also included in this would be the security of the building if you live in an apartment complex.
In order to properly withhold rental payments, the tenant must advise the landlord of the defect, preferably in writing, and the landlord refuses to remedy the problem.
If the landlord takes no action to fix a problem, you may best be served by getting the problem fixed yourself and then deducting the amount paid to fix the problem from your next rent check, but you have to give him a chance to make the repairs himself first before you take this route.
- Is my landlord allowed to come into my apartment anytime he wants without knocking?
Actually, no. A landlord cannot enter a tenant’s property without proper notice.
Most residential leases state when and how a landlord is to notify a tenant when they want to enter their apartment. A landlord should provide ample notice to the tenant and a reason for wanting to enter the apartment. That reason could be any valid reason, such as to check on the condition of the property or to assess a problem with plumbing or electrical from an adjacent apartment.
The only time they can enter without notice is in the case of an emergency. Entering your apartment outside of these circumstances means your landlord is violating the lease and should cease that type of activity.
If you retain us to represent your interests as a tenant or a landlord, it then becomes our job to help you preserve your rights. Here at Passalacqua and Associates, we realize each of our clients are different and have different needs, but each client receives the attention they deserve when their rights are being protected. We will investigate your case and come up with a strategy that will put you in the best position to move on with your life. To discuss your case in more detail, please call us at 315-500-NICK (6425) or contact us through our online chat at www.CNYTRIALLAW.com
New York is a “No-Fault” insurance state, which means that insureds are generally reimbursed by their insurance company for damages regardless of who was responsible for causing the accident. Insureds can be reimbursed for medical costs, lost wages and other losses that might surface after the accident.
The State of New York has done this to ensure that no one gets left out in the cold if they are in an accident with someone who does not have adequate, or any insurance at all. No-Fault insurance coverage, in most cases, will reimburse you up to $50,000 for accident related medical treatment, up to 80% of your lost wages (with a $2,000 a month maximum) and any accident related services that you need such as home help.
The State of New York also requires registered motor vehicles to have liability insurance with certain minimum coverage amounts:
- $25,000/$50,000 for bodily injury per person/ per incident
- $50,000/ $100,000 for death
- $10,000 for property damage per accident
What are the No Fault Benefits you are entitled to?
These are benefits paid by the insurance company of the car you were driving, were a passenger in or were struck by as a pedestrian, regardless of fault as to the cause of the accident. This means that the accident could have been your fault, someone else’s fault or no one’s fault at all. These benefits include payment of medical bills, prescription drugs, lost wages, housekeeping and/or transportation to and from medical providers, all as the result of the accident.
In order to claim these benefits, there are rules that are dictated by your insurance policy as to when you place them on notice of the accident and that you fill out an application to apply for the benefits. There is a very short time, only 30 days from the date of the accident, in order to file an application for these benefits. However, this time limit can be extended under extenuating circumstances. In order to make sure that you abide by all of the insurance companies requirements, you should contact an experienced personal injury attorney after your accident to ensure that all of your rights are protected.
Here at Passalacqua and Associates, we realize each of our clients are different and have different needs, but each client receives the attention they deserve when their rights are being protected. We will investigate your case and come up with a strategy that will put you in the best position to get your life back in order after a debilitating injury. Our attorneys and staff have the experience that is needed to find the people responsible for your accident and hold them accountable. To discuss your case in more detail, please call us at 315-500-NICK (6425) or contact us through our online chat at www.CNYTRIALLAW.com
To continue with the theme from my last post, the New York Times did a study on the benefits of expunging an individual’s criminal record. Although expungement is not available in New York, those convicted of crimes can have their record sealed from the vast majority of potential employers.
The Times found that the consequences of a conviction can last for decades after an individual has been sentenced and done their time. People with criminal records face major barriers to employment, housing and education.
Criminal justice reform, specifically in New York has focused on finding policy tools that can lower these barriers. The most controlling potential device is the expungement of criminal convictions from one’s criminal record. This seals the conviction from public view, removes them from databases, and ends most of their legal effects.
Up to 36 states have laws permitting expungement. Most only allow expungement depending on the number of convictions and the type of crime on commits. The individual usually has to wait years after completing their sentence and go through an elaborate process to have their records cleared. This is very similar to New York’s sealing process, as one has a 10-year waiting period with no criminal conduct to even have his application looked at for sealing.
In February, a bill was introduced in California, allowing automatic expungement of misdemeanors and minor felonies after completion of a sentence. In Utah, an automatic expungement bill is close to passing. These developments follow the first major automatic expungement law, which passed in Pennsylvania last summer.
Even with the landscape shifting toward automatic expungement, the main concern of many is that employers, landlords and others have a public safety interest in knowing the criminal records of those they deal with.
Little to no studies have been put forward to deal with the true effects of expungement. The Times’ study of expungement laws dealt specifically with the state of Michigan. Michigan has an expungement law that uses the traditional nonautomatic expungement approach.
All of the Times’ findings strongly support efforts to expand the accessibility of expungement.
People who got expungements tended to do very well. They found that within a year, their wages go up more than 20 percent. This gain was mostly driven by unemployed individuals finding work and minimally employed people finding sounder positions.
The recidivism rate for those with expungements were found to be at very low rates. The finding was considerably lower than those of Michigan’s general adult population. That may be because expungement decreases recidivism.
Another reason may be that expungement beneficiaries aren’t high risk to start off. Michigan requires a waiting period before expungement (five years after completion of sentence). Research indicated that people with records who go numerous years without another conviction are unlikely to re-offend.
However, barely anyone got expungements. Michigan only grants about 2,500 a year compared to the huge number of criminal convictions per year.
Few people actually met the legal requirements necessary. For those who did qualify, only 6.5 percent received expungements within five years of becoming eligible. Michigan judges have discretion to reject applications, but the bigger reason was over 90 percent of those eligible don’t apply.
Why? Most people don’t even know they can get an expungement, or don’t know how to do it. Many also cannot afford lawyers to advise them throughout the process. The procedure is long and complicated, requiring visits to police stations and courthouses. The fees (In Michigan usually total close to $100, minus transportation and time off work) are a barrier for people of lesser means. Many people with records often had painful interactions with the judicial system, making most want to avoid the situation altogether.
The low rate of applications for expungement is consistent with the difficulties that poor Americans face in dealing with the legal system. When the state makes it too hard or costly for citizens to exercise a right or opportunity, it’s no different from denying that right or opportunity. Most people won’t be able to help themselves without some guidance.
The Times’ research was clear: Obtaining an expungement should be made as simple as possible. States should follow the approach of Pennsylvania and the new California and Utah bills, and make expungement automatic once the legal requirements are met.
The results showed that expungement is a powerful tool for improving outcomes for people with records, without risk to public safety. Lawmakers are going to need to make it much simpler and convenient for people to use that tool and get a new start to life.
I recently ran across an article which I thought was quite interesting and hadn’t realized had been implemented. The Raise the Age Act by Governor Andrew Cuomo was implemented in 2018, but I wasn’t aware that one could apply for a pardon for their crimes during their youth. Here’s the gist of the pardon requirements.
Around 10,000 people will be impacted as New York starts to address a backlog of eligible individuals for pardon. Approximately 350 citizens will be eligible for pardons on an annual basis.
In October of 2019, the First-in-the-nation act will reach all individuals convicted of a misdemeanor or non-violent felony at 17 years old who have been crime-free for ten years.
Cuomo announced that he will use his pardon power to lessen the burden of a criminal conviction for people convicted of non-violent crimes when they were minors, and who have lived crime-free for at least 10 years. This action advances the principles from his Raise the Age Campaign, which calls upon New York to join 48 other states in recognizing that 16 and 17-year-old children do not belong in the adult court system.
This step recognizes that people can move beyond the mistakes they make in their youth. If burdened with a conviction of any kind, these youth may find it extremely difficult for them to find work, get admitted to college, find a place to live, and become licensed in certain occupations. This move allows deserving individuals to move forward with their lives.
By pardoning New Yorkers who have reached the ten-year period crime-free, this step will help those who present little danger to the public. However, the pardon will be on a conditional basis, which means that if a person is reconvicted, their pardon will be withdrawn.
This will affect a significant number of lives. Of 16- and 17-year old’s who committed misdemeanors and non-violent felonies, approximately 10,000 have not been reconvicted after at least 10 years. This means that approximately 350 people convicted as 16- and 17-year olds of misdemeanors and non-violent felonies remain conviction-free after 10 years.
In order for an individual to be eligible for this pardon, they must go through a careful screening process. All people who believe that they qualify for this pardon are invited to apply through the New York State website, ny.gov/services/apply-clemency. After being vetted, agency staff members will make a recommendation to the Governor to grant a pardon if:
- The person was 16 or 17 at the time they committed the crime for which they were convicted.
- At least 10 years have passed since the person was either convicted of the crime or released from a period of incarceration for that crime.
- The person has been conviction-free since.
- The person was convicted of a misdemeanor or a non-violent felony.
- The person was not convicted of a sex offense.
- The person is currently a New York State resident.
- The person has paid taxes on income.
- The person is a productive member their community, meaning that the individual is working, looking for work, in school or legitimately unable to work.
In addition to this general invitation to apply, the Governor will do targeted outreach to candidates for the pardon. Administrative staff will review and attempt to contact those convicted of qualifying crimes committed while they were 16 or 17 and who have stayed conviction-free. They will be informed of their initial eligibility for a pardon and invited to apply, using the website.
This step will tremendously alleviate barriers for people with criminal convictions.
This conditional pardon is a direct advancement to the Raise the Age agenda of Governor Cuomo.
Everyone knows that the winters in Upstate New York can be treacherous for both driving and walking. When you slip and fall on ice, the injuries can be very serious and threaten your ability to earn a living and enjoy your life. If you are one of the truly unlucky, it will involve possible surgery and having to miss work for an extended period of time. If you or someone you know has suffered an injury from a slip and fall on ice due to someone else’s negligence, you need to find an attorney who specializes in premises liability to protect your rights. Someone with experience. Someone who can evaluate your case and your injuries, so as to advise you on what your best course of action is so you receive the compensation you are entitled to.
If a property owner or business doesn’t maintain their premises properly, there can be a build up of snow and ice, which creates an hazardous condition that increases the risk for a slip, trip or fall due to that hazardous condition. In numerous municipalities in New York State, both the city and individual landowners are required to clear their sidewalks of snow and ice. If the property owner doesn’t clear the snow and ice away from their sidewalk, it becomes increasingly more difficult for a person trying to get where they are going while passing by or through their property. To take it a step further, the property owner must undertake a “reasonable” effort to clear the property. The act of just throwing some salt down on an unshoveled sidewalk is clearly not “reasonable”. They must make sure that the walking surface is free and clear of snow and ice and is a safe surface for the person attempting to cross. There are numerous municipalities in New York that set very specific time frames for landowners to clean their walkways following the end of any type of winter storm, including snow, sleet, freezing rain, etc.
In order to prove negligence on the part of a landowner who did not properly maintain their sidewalk, your attorney must prove that the landowner did not take “reasonable” care to clear the sidewalk. Some may ask, “what is reasonable care?” Reasonable care is the level of care that a prudent person would use in the same or similar circumstances. An example would be that after a snow storm, a business owner would send an employee out to shovel the walkway into the store so it is free of snow and then put rock salt down to ensure there is no ice that accumulated under the snow. This is done so a slip free walking surface has been achieved.
What do we have to show to prove the landowner or business was negligent? We will have to prove the landowner or business owed a duty to you to exercise reasonable care. That they breached that duty by not maintaining their sidewalks. That there was actual or constructive notice to the landowner or business that the hazardous condition existed. That the injuries you sustained were caused directly and proximately caused by the landowner’s or business’ breach of the duty owed to you.
If you were to slip and fall on someone else’s property there are a few things you can do to ensure you preserve the evidence needed to prove your case. You should report the accident immediately to the landowner or business. You should take your own photographs of the hazardous condition, as the weather changes rapidly and that same patch of ice may not be there the next day. You should have the person to whom you reported the incident fill out an accident report. Having these things will ensure that vital information is preserved and it can be used to help prove your case.
Once we are able to prove all of the elements of your case, it then becomes our job to help you receive the most compensation possible. In most cases we are able to recover the costs of medical bills, lost wages, pain and suffering and any other related expenses that have been incurred because of your injury. Here at Passalacqua and Associates, we realize each of our clients are different and have different needs, but each client receives the attention they deserve when their rights are being protected. We will investigate your case and come up with a strategy that will put you in the best position to get your life back in order after a debilitating injury. Our attorneys and staff have the experience that is needed to find the people responsible for your accident and hold them accountable.
To discuss your case in more detail, please call us at 315-500-NICK (6425) or contact us through our online chat at www.CNYTRIALLAW.com