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Felonies and Misdemeanors

In America, we have the highest incarceration rate in the world, and the sentences for crimes continue to grow more severe. Our harsh laws pose a serious risk for anyone facing a misdemeanor, felony, or a combination of both.

The harsh laws give prosecutors an advantage, which is why they routinely overcharge defendants. In federal cases, cases with multiple defendants, or sex offenses, the prosecution has additional leverage due to even harsher laws.

A felony may result in mandatory prison time, even for minor offenses. For example, in a recent case, a young woman accused her ex-boyfriend of pushing her and grabbing her cell phone away. The police arrested the man for a variety of assault and robbery charges based solely on her word.  Even though he did not have a criminal record, he faced a maximum sentence of 15 years!  Contacting a private lawyer for immediate protection helped him to avoid pretrial lockup, to get low bail, and to win a dismissal.

A defendant may not realize that one misdemeanor can send him to jail for a year and a few misdemeanors may result in even more time, especially if the defendant has a prior record.   Also, misdemeanors can cost thousands of dollars in fines. A personal lawyer, one who works on your case daily, will work for dismissal or will negotiate with the judge or the prosecutor to drop the charges if the client avoids another arrest for six months or one year (known as Adjournment in Contemplation of Dismissal).

In large public defenders offices or law firms, the lawyers may advise a fast guilty plea to avoid a time-consuming investigation or trial.  They may not take misdemeanors seriously at all even though a persistent lawyer can get many of these charges dropped. Too many clients complain about the lack of contact with their lawyer and the pressure to plead guilty quickly.

Pleading guilty should be the last line of defense, not the first.  Do not get lost in the maze of public defenders. Contact the Law Office of Adam Bevelacqua at (917) 656 - 7076 or bevelacqualaw@gmail.com and speak to a criminal defense lawyer immediately.

Example Cases

Here are some recent example cases to demonstrate the common prosecution tactic of overcharging and the importance of an effective defense:

Assault: A boyfriend and a girlfriend argued, he called her a nasty name, she slapped him, he grabbed her wrists and pushed her. A neighbor said she heard crashing and called the police. The police arrested the man even though the girlfriend was not hurt.   New York’s strict arrest laws and prosecution tactics lead to overcharged cases of Harassment, Menacing, Attempted Assault in the Third Degree, and Disorderly Conduct. A prior conviction meant that he faced 5 years in prison, but an aggressive motion to dismiss cleared him of all charges.

Assault: A group of friends were drinking at a bar in the city, and an intoxicated woman flirted with another woman’s husband. The intoxicated woman grew hostile and hit the wife with her handbag. In response, the wife tossed an empty glass and pushed the woman away. Both women were arrested just before the 3:45 last call. The wife was charged with Assault in the Second Degree (“deadly instrument”), Assault in the Third Degree, Gang Assault, and Disorderly Conduct.  If she took a guilty plea, she would have faced 25 years in prison.

Drug Distribution: A young man was riding with three friends in a car when a passenger opened a pill bottle and accidentally spilled it on the floor. The driver looked over at the pills, swerved the car, and an officer pulled them over, shone a flashlight into the back seat, and saw the pills. The person with the pill bottle did not admit to possessing the pills, which turned out to be painkillers, and the officer found $1,200 of cash in the glove box. One passenger was under the age of 18. All four men were charged with Drug Possession in the Sixth Degree, Drug Possession in the Seventh Degree, Conspiracy, and three of them were charged with Distributing Drugs to a Minor. Also, the defendant was charged with Resisting Arrest after he tried to punch the person who would not admit to possessing the pills. Based on his criminal history, the defendant could have faced 7 years in prison. Instead, the defense lawyer negotiated an ACD (Adjournment in Contemplation of Dismissal).

Drug Conspiracy/Accessory: A man visited his ex-girlfriend and her brother to purchase a small amount of weed for personal use. When he entered the house, the police raided the place with a search warrant. The police had been doing surveillance on the ex-girlfriend and her brother for a month, and they found a kilo of cocaine and a few pounds of weed in the house. The man, caught in the middle, was also arrested for possessing the small bag of weed, but the prosecutor charged him with Conspiracy to Sell Drugs (the cocaine), Possession with Intent to Distribute, and he was charged as an accessory for Drug Possession in the Second Degree, Drug Possession in the Third Degree. He faced 25 years in prison, but an effective motion to suppress caused part of the drug evidence to be thrown out, and he eventually decided to plead guilty in exchange for a 2 year minimum sentence (required by his criminal history).

Sex Offense: A 27-year-old man showed up to his 13-year-old cousin’s swim match, a normal occurrence. He joked around with the cousin about his new girlfriend and his lack of sexual experience, and he took a naked picture of the boy and two friends in the locker room on a cell phone, although the boys knew about it and two had laughed during the picture. The 27-year-old man sent the picture with a teasing message to the three boys, but the mother of one of the younger cousin’s friends became angry and called the police. Obviously, a normal person could question the older cousin’s judgment in this case, but he was charged with Promoting a Sexual Performance by a Child, Possessing a Sexual Performance by a Child, and Endangering the Welfare of a Child. He faced 10 years in prison and life on the Sex Offender Registry, but the carefully argued defense lead to an acquittal.

Sex Offense, Weapons Possession: An 18-year-old boy with a low IQ and his friend walked around a suburb, drinking vodka and shooting a BB-gun at signs. The police arrested them for possessing a weapon. The police found out from the boy that he had spent the evening at a nearby motel and had sex with a girl, who turned out to be 13 years old. Earlier that day, the two boys had met two girls during lunch at an Applebee’s, ate with them and the alleged victim’s mother, and the five of them went to the motel to party for the rest of the day. The mother bought the vodka. The mother thought that the boys were nice, and the boys and girls eventually paired off and engaged in sex acts. The 18-year-old boy, despite his low IQ and his lack of knowledge of the girl’s age, was charged with Sexual Abuse in the Second Degree, Possession of a Firearm, Distributing Alcohol to a Minor, and Endangering the Welfare of a Child.   Before he hired a lawyer, the public defender wanted this 18-year-old to plead guilty and risk 7 years in prison and life on the Sex Offender Registry.

Fraud, Embezzlement, Conspiracy: The federal government arrested a contractor for paying himself a salary from his own business, which is a normal occurrence, but the money originally came from a client with a fake identification and bank account. The contractor did not know this. Even though he was a middle-aged family man with no criminal record, the prosecutor charged him in federal court with Theft, Wire Fraud, Embezzlement, and Conspiracy, with a mandatory minimum of five years. After extensive negotiations, he plead guilty to one count of fraud and served no time.

DWI, Manslaughter: A young woman rear-ended a car at a stoplight, pushing the car into a ditch and a tree and causing a serious head injury to the driver. Previously, the young woman had two glasses of wine, and when the police arrived, she was just over the legal limit. The situation was a tragic accident due to a combination of factors: a dark intersection, a car stopped at a green light, and the curved roadway did not allow for a last-minute maneuver. Additionally, the deceased driver’s advanced age and medical conditions contributed to the tragedy. For the young woman, the original charges included: Driving While Intoxicated, Vehicular Manslaughter in the Second Degree, and Reckless Endangerment. She faced 7 years in prison, but careful negotiations lead to the prosecution dropping all charges except the lesser-included misdemeanor offense of Driving While Ability Impaired.

Burglary, Juvenile Arrest: An older neighbor got into a verbal fight with a 16-year-old boy on the front lawn. As they yelled at each other, the older man grabbed the boy’s backpack from the ground and went inside his house. The 16-year-old and a friend followed the man back into his house, where the three continued to yell. The boy and the friend pushed the man, held him away, took back the bag, and left the house. The older man called the police and claimed that the two boys engaged in a home invasion and an assault, and the two boys were arrested. The 16-year-old faced 15 years in prison, but the successful legal strategy lead to removal of the case to Family Court (A note on Juvenile Arrests: it is important to hire a lawyer with criminal and family law experience). The boy served no time and received Anger Management counseling.

Assault, Juvenile Arrest: A 14-year-old boy came home after curfew and his mother’s new boyfriend confronted him. The son grew angry, telling the boyfriend that he was not the father, and the boyfriend grew angry about the son speaking disrespectfully. The boyfriend made a nasty comment about having sex with the son’s “mommy” every night, and the son punched him and fractured his nose. The boyfriend called the police and had the son arrested. The boy faced charges of Assault in the Third Degree, Harassment, and Menacing. He faced two years in prison prior to negotiations and dismissal in Family Court.