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Long Island, New York Criminal Defense Blog

Saturday, May 13, 2017

The Top 3 Misconstrued Things About Getting Arrested For a DWI/DUI in New York State


Let's face it, one of the most embarrassing things to ever happen to someone is receiving a DWI/DUI. But, unfortunately, it is very common among high school students, college students, and adults alike, to be pulled over and arrested for driving while intoxicated by alcohol or driving under the influence of drugs. Due to its popularity, the severity of a DWI/DUI causes many scenarios to be misconstrued.

 

Here are the top three things you need to know the truth about in DWI/DUI situations:

 

1. DWI/DUI matters are only related to alcohol?

 

         False.
Read more . . .


Tuesday, January 5, 2016

Why Contact an Experienced Criminal Defense Attorney?

Many people that get arrested or are under criminal investigation and fail to retain an experienced criminal defense attorney immediately.  That is a very big mistake that could lead to very serious consequences down the road such as incarceration, having a criminal conviction, being placed on probation and/or parole, being deported, loss of the right to vote, employment, the right to carry a firearm, etc.

If you find yourself under arrest and/or under criminal investigation, call Michael A. Arbeit immediately at (516) 766-1878.  We are available 24/7 at (516) 766-1878.  We are located at 23 S. Main Street, Suite 30, Freeport, New York 11520. We handle all Criminal Defense and Traffic Violation matters in Nassau County, Suffolk County, Queens County, Kings County, New York County.  No case is too big or too small and each matter is handled exclusively by Mr. Arbeit and treated with the upmost attention to detail.

We have been proudly representing residents of the Town of Hempstead (Atlantic Beach, Baldwin, Bellerose Terrace, Bellmore, Bethpage, Cedarhurst, East Meadow, East Rockaway, Elmont, Floral Park, Franklin Square, Freeport, Graden City, Hempstead, Hewlett, Inwood, Island Park, Lawrence, Levittown, Lynbrook, Malverne, Merrick, Mineola, New Hyde Park, North Lynbrook, North Valley Stream, North Woodmere, Oceanside, Point Lookout, Rockville Centre, Roosevelt, Seaford, South Hempstead, Uniondale, Valley Stream, Wantagh, West Hempstead, Woodmere, Ilsand Trees, Plainedge), The Town of North Hempstead (Albertson, Carle place, Floral Park, Glenwood Landing, Great Neck, Greenvale, Kings Point, Manhasset, Mineola, New Hyde Park, North New Hyde Park, Old Westbury, Port Washington, Roslyn, Roslyn Heights, Westbury, Williston Park), The Town of Oyster Bay (Bayville, Bethpage, East Norwich, Farmingdale, Glen Head, Glenwood landing, Greenvale, Hicksville, Jericho, Locust Valley, Massapequa, Massapequa Park, Mill Neck, Old Bethpage, Old Westbury, Oyster Bay, Plainview, Sea Cliff, Syosset, Woodbury), City of Glen Cove, City of Long Beach, Town of Babylon (Amityville, Babylon, Copiague, Deer Park, Lindenhurst, North Amityville, North Babylon, West Babylon, West Ilsip), Town of Brookhaven (Bellport, Blue Point, Brookhaven, Calverton, Centereach, Center Moriches, Coram, West Moriches, East Patchogue, Eastport, East Setauket, Farmingville, Holbrook, Holtsville, Lake Grove, Manorville, Mastic, Mastic Beach, Medford, Middle Island, Miller Place, Moriches, Mount Sinai, North Patchogue, Rocky Point, Shoreham, Wading River, Port Jefferson, Ronkonkoma, Sound Beach, Yaphank, Port Jefferson Station, Ridge, Shirly, Upton, Selden, Stony Brook) Town of Huntington (Centerport, Cold Spring harbor, Commack, East Northport, Greenlawn, Huntington, Huntington Station, Lloyd Harbor, Melville, Northport), Town of Islip (Bayport, Bay Shore, Bohemia, Brentwood, Brightwaters, Central Islip, East Islip, Great River, Hauppauge, Holbrook, Holtsville, Islandia, Islip, Islip Terrace, Oakdale, Ocean Beach, Ronkonkoma, Sayville, West Islip, West Sayville), Town of Smithtown (Commack, Hauppauge, Kings Park, Nesconset, Saint James, Smithtown).

Many people call my office with questions and queries on a whole range of criminal topics such as:

What happens if you deny breath test for DUI?

After arrest, can you make a phone call in NYC?

Breathalyzer refusal and counseling ny;

Child pornography charge for minor;

Cops tell me I don't need to call a lawyer or parents;

How can police come to your house and tell you to come to the precinct for questioning?

How soon should I be arraigned after arrested?

How to lower sex offender level;

How to petition and reduce a level 3 sex offender;

I turn myself in, what happens next burglary charges?

I was arrested for domestic violence, what happens next?

If police ask you to come down for an interview do I have to go?

Police wish to speak with me...lawyer?

What are the chances for getting a conditional license at a DMV Hearing in NYS after refusing a breathalyzer?

What constitutes child pornography?

What do police do after an arrest in NYC?

What happens when arrested and no bail is set?

What happens after a domestic assault arrest?

What happens in an arrest for fraud?

What is the discipline for nurses for aggravated assault charges that have been dropped?

What should you do if arrested for robbery?

Can family members attend an arraignment? 

Can police arrest you if they ask you to come to the precinct?

Finding a lawyer after an arrest;

What happens when arrested?

What happens when arrested for child abuse?

If you have any questions about the criminal process and/or need to speak with an experienced criminal defense attorney, call Michael A. Arbeit at (516) 766-1878.  Do not delay.  It could be the most important telephone call you make in your life if you value your freedom.  The police are allowed to lie to you to a certain extent and will do everything in their power to try and trick you into incriminating yourself and others.  Do NOT speak with the police. Call attorney Michael A. Arbeit immediately. 

                  

        

 

  

   


Wednesday, December 30, 2015

NYS DMV- Penalties for Multiple Offenders

PENALTIES FOR MULTIPLE OFFENDERS

The Drinking Driver Program (DDP) is now called the Impaired Driver Program (IDP).  As this new name is being implemented, you may see the two names interchangeably.

 New regulations took effect on September 25, 2012 that affect drivers with multiple alcohol/drugged-driving related convictions or incidents. The highlights of how these changes affect persons applying for a driver license after their license is revoked are provided below.

Applicants with three or four alcohol/drugged-driving related convictions or incidents within a 25 year period, without a serious driving offense and whose revocation does NOT result from an alcohol or drugged driving conviction or incident, will be denied relicensing for two years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for two years. A serious driving offense is a fatal accident, a driving-related penal law conviction, conviction of two or more violations for which five or more points are assessed, or 20 or more points from any violations.

Applicants with three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, without a serious driving offense and whose revocation DOES result from an alcohol or drugged driving conviction or incident, will be denied relicensing for five years in addition to the statutory revocation period, and then will be relicensed with a problem driver restriction for 5 years with an ignition interlock.

Applicants with three or four alcohol/drugged-driving related convictions or incidents within the preceding 25 years, with a serious driving offense will be permanently denied a driver license, unless there are compelling or extenuating circumstances.

Applicants with five or more alcohol/drugged-driving related convictions or incidents on their lifetime driving record will be permanently denied a driver license, unless there are compelling or extenuating circumstances.

Applicants with two or more alcohol/drugged-driving related convictions or incidents within the preceding 25 years will be required to serve their entire sanction period (suspension or revocation) even if they complete the Impaired Driver Program (IDP) (previously known as Drinking Driving Program (DDP))and will be required to submit proof of rehabilitation.

Offense History

DMV Action

Five or more alcohol/drugged driving related convictions or incidents lifetime = "Persistently Dangerous Driver"

Permanent denial (subject to compelling or extenuating circumstances)

In a 25 year period, three or four alcohol/drugged driving related convictions or incidents + one Serious Driving Offense (SDO) = "Persistently Dangerous Driver"

Permanent denial (subject to compelling or extenuating circumstances)

Revoked for alcohol-related offense, three or four alcohol/drugged driving related convictions or incidents without any SDO in a 25 year period.

Deny for five years in addition to statutory revocation period, then relicense with restricted license and interlock for five years.

Revoked for non-alcohol-related offense, three or four alcohol/drugged driving related convictions or incidents without any SDO in a 25 year period

Deny for two years in addition to statutory revocation period, then relicense with restricted license for two years, but no interlock.

Two alcohol/drugged driving related convictions or incidents

No full relicensing until end of statutory minimum revocation period, even if IDP is completed.

For more information, you can read the Governor's press release about these changes.  You can also read the Regulations.

Part 3 - Final - February 13, 2013

Part 132 - Revised and Final - February 13, 2013

Part 134 - Final, effective May 1, 2013

Part 136 - Revised and final, effective May 1, 2013

Frequently asked questions

What happens if I am not eligible for a conditional or restricted license?

You must serve the entire term of your suspension or revocation and then reapply to the DMV for a new driver license.

What is required to apply for a new license after revocation?

You must submit a completed Application for Permit, Driver License or Non-Driver ID Card (MV-44) and a non-refundable $100 fee to:

Driver Improvement Unit

NYS DMV

6 Empire State Plaza, Room 338

Albany, NY 12228

(518) 474-0774, Option #5 (Phone Hours: M-F, 8:30 – Noon)

FAX (518) 474-6208

The Driver Improvement Unit (DIU) will make a determination based on your entire driving record, and a response will be mailed to you. The response will include instructions about your next steps.

Can some drivers have their full privileges restored at their local DMV office?

Yes, the following drivers who hold a conditional license can continue to visit a DMV office for restoration of their driving privileges

a driver with two alcohol/drugged-driving convictions or incidents within the previous 25 years who has completed the IDP and has served the entire suspension or revocation period, or

a driver with one alcohol/drugged-driving conviction or incident within the previous 25 years who has completed the IDP

If I have a conditional license based on one alcohol/drugged-driving conviction or incident, must I serve the minimum suspension or revocation period?

If there is only one alcohol/drugged-driving conviction or incident on your record, you can receive or apply for a new driver license without the need to serve the full revocation period if you first complete the IDP.

What happens if I have a conditional or restricted license and I drop out of the IDP?

Your conditional or restricted license will be revoked. After a review of your driving record, you may be eligible to re-enroll in the IDP and have your conditional or restricted license re-issued.

What happens if my driver license application is denied at the local DMV office?

You can submit a completed Application for Permit, Driver License or Non-Driver ID Card (MV-44) and a non-refundable $100 fee to:

Driver Improvement Unit

NYS DMV

6 Empire State Plaza, Room 338

Albany, NY 12228

(518) 474-0774, Option #5 (Phone Hours: M-F, 8:30 – Noon)

FAX (518) 474-6208

The Driver Improvement Unit (DIU) will make a determination based on your entire driving record, and a response will be mailed to you. The response will include instructions about your next steps.

What happens if my application is denied by the DIU?

Follow the instructions in the denial letter from the DIU.

What happens if my application is approved by the DIU?

Follow the instructions in the approval packet response from the DIU.

 How can I get a copy of my full lifetime driving record?

To get a copy of your full lifetime driving record, you must submit a Freedom of Information Law request using a Freedom of Information Law Request Form (MV-15F).


Wednesday, December 23, 2015

Superintendent's Suspension Hearings (New York Education Law Section 3214)

If your child is suspended from school and subsequently receives a Notice of a Superintendent's Level Suspension Hearing pursuant to New York State Education Law Section 3214, you should contact an experienced attorney immediately to protect your child's rights.  Attempting to navigate this alone could have serious harmful affects on your child's educational process.

 §  3214.  Student  placement,  suspensions  and  transfers.  1. School
  delinquent. A minor under seventeen years of age, required by any of the
  provisions of part one of this article to attend upon  instruction,  who
  is  an  habitual  truant  from  such instruction or is irregular in such
  attendance or insubordinate  or  disorderly  or  disruptive  or  violent
  during such attendance, is a school delinquent.
    2.  Special  day schools. The school authorities of any city or school
  district may establish schools or  set  apart  rooms  in  public  school
  buildings  for the instruction of school delinquents, and fix the number
  of days per week and the hours per day  of  required  attendance,  which
  shall not be less than is required of minors attending the full time day
  schools.
    2-a.  a.  Violent  pupil.  For the purposes of this section, a violent
  pupil is an elementary or secondary student under  twenty-one  years  of
  age who:
    (1)  commits an act of violence upon a teacher, administrator or other
  school employee;
    (2) commits, while on school district property,  an  act  of  violence
  upon another student or any other person lawfully upon said property;
    (3)  possesses,  while  on  school  district  property,  a gun, knife,
  explosive or incendiary bomb, or other dangerous instrument  capable  of
  causing physical injury or death;
    (4)  displays, while on school district property, what appears to be a
  gun, knife, explosive or incendiary bomb or other  dangerous  instrument
  capable of causing death or physical injury;
    (5)   threatens,  while  on  school  district  property,  to  use  any
  instrument that appears capable of causing physical injury or death;
    (6) knowingly and  intentionally  damages  or  destroys  the  personal
  property  of a teacher, administrator, other school district employee or
  any person lawfully upon school district property; or
    (7) knowingly and intentionally damages or  destroys  school  district
  property.
    b.  Disruptive  pupil.  For the purposes of this section, a disruptive
  pupil is an elementary or secondary student under  twenty-one  years  of
  age  who  is  substantially  disruptive  of  the  educational process or
  substantially  interferes  with  the  teacher's   authority   over   the
  classroom.
    3. Suspension of a pupil. a. The board of education, board of trustees
  or  sole trustee, the superintendent of schools, district superintendent
  of schools or principal of a school may  suspend  the  following  pupils
  from required attendance upon instruction:
    A  pupil  who is insubordinate or disorderly or violent or disruptive,
  or whose conduct otherwise  endangers  the  safety,  morals,  health  or
  welfare of others.
    b.  (1)  The  board  of education, board of trustees, or sole trustee,
  superintendent of schools, district superintendent of  schools  and  the
  principal  of the school where the pupil attends shall have the power to
  suspend a pupil for a period not to exceed five school days. In the case
  of such a suspension, the suspending authority shall provide  the  pupil
  with  notice  of  the  charged  misconduct.  If  the  pupil  denies  the
  misconduct, the suspending authority shall provide an explanation of the
  basis for the suspension. The pupil and the person in parental  relation
  to  the pupil shall, on request, be given an opportunity for an informal
  conference with the principal  at  which  the  pupil  and/or  person  in
  parental  relation shall be authorized to present the pupil's version of
  the event and  to  ask  questions  of  the  complaining  witnesses.  The
  aforesaid  notice  and opportunity for an informal conference shall take
  place prior to suspension of the pupil unless the  pupil's  presence  in
  the  school  poses  a  continuing  danger  to  persons or property or an
  ongoing threat of disruption to the academic process, in which case  the
  pupil's  notice  and  opportunity  for an informal conference shall take
  place as soon after the suspension as is reasonably practicable.
    (2)  A  teacher  shall immediately report and refer a violent pupil to
  the principal or superintendent for a violation of the code  of  conduct
  and a minimum suspension period pursuant to section twenty-eight hundred
  one of this chapter.
    c.  * (1)  No  pupil  may  be suspended for a period in excess of five
  school days unless such pupil and the person  in  parental  relation  to
  such  pupil  shall  have  had  an  opportunity  for a fair hearing, upon
  reasonable  notice,  at  which  such  pupil  shall  have  the  right  of
  representation  by counsel, with the right to question witnesses against
  such pupil and to present witnesses and other evidence  on  his  or  her
  behalf.  Where  the  pupil  is  a student with a disability or a student
  presumed to have a disability, the provisions of  paragraph  g  of  this
  subdivision  shall  also  apply.  Where  a  pupil  has been suspended in
  accordance with  this  subparagraph  by  a  superintendent  of  schools,
  district  superintendent  of  schools,  or community superintendent, the
  superintendent shall personally hear and  determine  the  proceeding  or
  may,  in  his  or her discretion, designate a hearing officer to conduct
  the hearing. The hearing officer shall be authorized to administer oaths
  and to issue subpoenas in conjunction with the proceeding before him  or
  her.  A  record  of the hearing shall be maintained, but no stenographic
  transcript shall be required and a tape  recording  shall  be  deemed  a
  satisfactory  record.    The hearing officer shall make findings of fact
  and recommendations as to the appropriate measure of discipline  to  the
  superintendent.  The  report  of  the  hearing officer shall be advisory
  only, and the superintendent may accept all  or  any  part  thereof.  An
  appeal  will lie from the decision of the superintendent to the board of
  education who shall make its decision solely upon the record before  it.
  The   board  may  adopt  in  whole  or  in  part  the  decision  of  the
  superintendent of schools.  Where the basis for the  suspension  is,  in
  whole or in part, the possession on school grounds or school property by
  the  student  of  any  firearm, rifle, shotgun, dagger, dangerous knife,
  dirk, razor, stiletto or any of the weapons, instruments  or  appliances
  specified  in  subdivision  one  of section 265.01 of the penal law, the
  hearing officer or superintendent shall not be barred  from  considering
  the  admissibility  of such weapon, instrument or appliance as evidence,
  notwithstanding a determination by a court in  a  criminal  or  juvenile
  delinquency  proceeding  that the recovery of such weapon, instrument or
  appliance was the result of an unlawful search or seizure.
    * NB Effective until June 30, 2018
    * (1) No pupil may be suspended for a period in excess of five  school
  days unless such pupil and the person in parental relation to such pupil
  shall  have  had  an  opportunity  for  a  fair hearing, upon reasonable
  notice, at which such pupil shall have the right  of  representation  by
  counsel,  with the right to question witnesses against such pupil and to
  present witnesses and other evidence on his behalf. Where  a  pupil  has
  been  suspended  in accordance with this subdivision by a superintendent
  of  schools,  district   superintendent   of   schools,   or   community
  superintendent,  the  superintendent shall personally hear and determine
  the proceeding or may, in his discretion, designate a hearing officer to
  conduct  the  hearing.  The  hearing  officer  shall  be  authorized  to
  administer  oaths  and  to  issue  subpoenas  in  conjunction  with  the
  proceeding before him. A record of the hearing shall be maintained,  but
  no  stenographic transcript shall be required and a tape recording shall
  be deemed a satisfactory record. The hearing officer shall make findings
  of fact and recommendations as to the appropriate measure of  discipline
  to  the  superintendent.  The  report  of  the  hearing officer shall be
  advisory only, and  the  superintendent  may  accept  all  or  any  part
  thereof.  An  appeal will lie from the decision of the superintendent to
  the board of education who shall  make  its  decision  solely  upon  the
  record  before  it. The board may adopt in whole or in part the decision
  of the superintendent of schools. Where the basis for the suspension is,
  in whole or in part, the possession on school grounds or school property
  by the student of any firearm, rifle, shotgun, dagger, dangerous  knife,
  dirk,  razor,  stiletto or any of the weapons, instruments or appliances
  specified in subdivision one of section 265.01 of  the  penal  law,  the
  hearing  officer  or superintendent shall not be barred from considering
  the admissibility of such weapon, instrument or appliance  as  evidence,
  notwithstanding  a  determination  by  a court in a criminal or juvenile
  delinquency proceeding that the recovery of such weapon,  instrument  or
  appliance was the result of an unlawful search or seizure.
    * NB Effective June 30, 2018
    (2)  Where  a pupil has been suspended in accordance with this section
  by a board of education, the  board  may  in  its  discretion  hear  and
  determine the proceeding or appoint a hearing officer who shall have the
  same  powers and duties with respect to the board that a hearing officer
  has with respect to a superintendent where the suspension was ordered by
  him. The findings and recommendations of the hearing officer  conducting
  the  proceeding  shall  be  advisory  and subject to final action by the
  board of education, each member of which shall before voting review  the
  testimony  and acquaint himself with the evidence in the case. The board
  may reject, confirm or modify the conclusions of the hearing officer.
    * d. (1) Consistent with the federal gun-free schools act, any  public
  school  pupil who is determined under this subdivision to have brought a
  firearm to or possessed a firearm at a public school shall be  suspended
  for a period of not less than one calendar year and any nonpublic school
  pupil  participating  in  a program operated by a public school district
  using funds from the elementary and secondary education act of  nineteen
  hundred  sixty-five  who  is  determined  under this subdivision to have
  brought a firearm to or possessed a firearm at a public school or  other
  premises  used  by the school district to provide such programs shall be
  suspended for  a  period  of  not  less  than  one  calendar  year  from
  participation  in such program. The procedures of this subdivision shall
  apply to such a suspension of a nonpublic school pupil. A superintendent
  of  schools,   district   superintendent   of   schools   or   community
  superintendent  shall  have  the  authority  to  modify  this suspension
  requirement for each student on a case-by-case basis. The  determination
  of a superintendent shall be subject to review by the board of education
  pursuant  to  paragraph  c  of  this  subdivision  and  the commissioner
  pursuant to section three hundred ten of this chapter. Nothing  in  this
  subdivision  shall  be  deemed  to authorize the suspension of a student
  with a disability in violation  of  the  individuals  with  disabilities
  education  act  or article eighty-nine of this chapter. A superintendent
  shall refer the pupil under the age of sixteen who has  been  determined
  to  have  brought  a  weapon  or  firearm to school in violation of this
  subdivision  to  a  presentment  agency  for  a   juvenile   delinquency
  proceeding  consistent with article three of the family court act except
  a student fourteen or fifteen years of age who  qualifies  for  juvenile
  offender  status  under  subdivision  forty-two  of  section 1.20 of the
  criminal procedure law. A superintendent shall refer any  pupil  sixteen
  years  of age or older or a student fourteen or fifteen years of age who
  qualifies for juvenile offender status under  subdivision  forty-two  of
  section  1.20  of the criminal procedure law, who has been determined to
  have brought a  weapon  or  firearm  to  school  in  violation  of  this
  subdivision to the appropriate law enforcement officials.
    (2)  Nothing  in this paragraph shall be deemed to mandate such action
  by a school district pursuant to subdivision one of this  section  where
  such  weapon  or  firearm  is  possessed  or  brought to school with the
  written authorization  of  such  educational  institution  in  a  manner
  authorized  by  article  two  hundred  sixty-five  of  the penal law for
  activities approved and authorized by the trustees or board of education
  or other governing body of the public school  and  such  governing  body
  adopts appropriate safeguards to ensure student safety.
    (3) As used in this paragraph:
    (i)  "firearm"  shall  mean  a  firearm  as defined in subsection a of
  section nine hundred twenty-one of title eighteen of the  United  States
  Code; and
    (ii)  "weapon"  shall  be as defined in paragraph 2 of subsection g of
  section nine hundred thirty of title eighteen of the United States Code.
    * NB Effective until June 30, 2016
    * d. Consistent with the federal  gun-free  schools  act  of  nineteen
  hundred  ninety-four,  any  public  school pupil who is determined under
  this subdivision to have brought a weapon to school shall  be  suspended
  for a period of not less than one calendar year and any nonpublic school
  pupil  participating  in  a program operated by a public school district
  using funds from the elementary and secondary education act of  nineteen
  hundred  sixty-five  who  is  determined  under this subdivision to have
  brought a weapon to a public school or other premises used by the school
  district to provide such programs shall be suspended for a period of not
  less than one calendar year from  participation  in  such  program.  The
  procedures  of  this  subdivision  shall apply to such a suspension of a
  nonpublic  school  pupil.  A   superintendent   of   schools,   district
  superintendent  of  schools  or  community superintendent shall have the
  authority to modify this suspension requirement for each  student  on  a
  case-by-case  basis.  The  determination  of  a  superintendent shall be
  subject to review by the board of education pursuant to paragraph  c  of
  this  subdivision and the commissioner pursuant to section three hundred
  ten of this chapter. Nothing in this  subdivision  shall  be  deemed  to
  authorize  the suspension of a student with a disability in violation of
  the individuals with disabilities education act or  article  eighty-nine
  of this chapter. A superintendent shall refer the pupil under the age of
  sixteen  who  has  been determined to have brought a weapon to school in
  violation of this subdivision to a presentment  agency  for  a  juvenile
  delinquency proceeding consistent with article three of the family court
  act  except a student fourteen or fifteen years of age who qualifies for
  juvenile offender status under subdivision forty-two of section 1.20  of
  the  criminal  procedure  law.  A  superintendent  shall refer any pupil
  sixteen years of age or older or a student fourteen or fifteen years  of
  age  who  qualifies  for  juvenile  offender  status  under  subdivision
  forty-two of section 1.20 of the criminal procedure law,  who  has  been
  determined  to  have  brought  a  weapon  to school in violation of this
  subdivision to the appropriate law enforcement officials.
    * NB Effective June 30, 2016
    e. Procedure after  suspension.  Where  a  pupil  has  been  suspended
  pursuant  to this subdivision and said pupil is of compulsory attendance
  age, immediate steps shall be taken  for  his  or  her  attendance  upon
  instruction  elsewhere  or  for  supervision  or detention of said pupil
  pursuant to the provisions of article seven of  the  family  court  act.
  Where  a  pupil  has  been  suspended  for  cause, the suspension may be
  revoked by the board of education whenever it appears to be for the best
  interest of the school and the pupil to do so. The  board  of  education
  may  also  condition  a  student's early return to school and suspension
  revocation on the  pupil's  voluntary  participation  in  counseling  or
  specialized  classes,  including anger management or dispute resolution,
  where applicable.
    * f.  Whenever  the  term  "board  of  education  or superintendent of
  schools" is used in this subdivision, it  shall  be  deemed  to  include
  community  boards  of  education and community superintendents governing
  community  districts  in  accordance  with  the  provisions  of  article
  fifty-two-A of this chapter.
    * NB Effective until June 30, 2016
    * f.  Whenever  the  term  "board  of  education  or superintendent of
  schools" is used in this subdivision, it  shall  be  deemed  to  include
  community  boards  of  education and community superintendents governing
  community  districts  in  accordance  with  the  provisions  of  article
  fifty-two-A  of  this  chapter. For the purpose of this subdivision, the
  term "weapon" means a firearm as such term is defined  in  section  nine
  hundred twenty-one of title eighteen of the United States code.
    * NB Effective June 30, 2016
    * g. Discipline of students with disabilities and students presumed to
  have a disability for discipline purposes. (1) Notwithstanding any other
  provision  of  this  subdivision  to  the  contrary,  a  student  with a
  disability as such term is defined in section forty-four hundred one  of
  this  chapter and a student presumed to have a disability for discipline
  purposes,  may  be  suspended  or  removed  from  his  or  her   current
  educational  placement  for violation of school rules only in accordance
  with the procedures established in this section, the regulations of  the
  commissioner  implementing this paragraph, and subsection (k) of section
  fourteen hundred fifteen of title twenty of the United States  code  and
  the  federal  regulations implementing such statute, as such federal law
  and regulations are from time to time amended. Nothing in this paragraph
  shall be construed to confer greater rights on such  students  than  are
  conferred  under applicable federal law and regulations, or to limit the
  ability of a school district to change the educational  placement  of  a
  student  with  a disability in accordance with the procedures in article
  eighty-nine of this chapter.
    (2) As used in this paragraph:
    (1) a "student presumed to have a disability for discipline  purposes"
  shall mean a student who the school district is deemed to have knowledge
  was  a  student  with a disability before the behavior that precipitated
  disciplinary action under the criteria in subsection (k) (5) of  section
  fourteen  hundred  fifteen of title twenty of the United States code and
  the federal regulations implementing such statute; and
    (ii) a "manifestation team"  means  a  representative  of  the  school
  district,  the  parent  or  person  in  parental  relation, and relevant
  members of the committee on special  education,  as  determined  by  the
  parent or person in parental relation and the district.
    (3) In applying the federal law consistent with this section:
    (i)  in  the event of a conflict between the procedures established in
  this section and those established in subsection (k) of section fourteen
  hundred fifteen of title twenty  of  the  United  States  code  and  the
  federal  regulations implementing such statute, such federal statute and
  regulations shall govern.
    (ii) the trustees or board of education  of  any  school  district,  a
  district  superintendent  of  schools or a building principal shall have
  authority to order the placement of a student with a disability into  an
  appropriate  interim alternative educational setting, another setting or
  suspension for a period not to exceed five consecutive school days where
  such student is suspended pursuant to this subdivision  and,  except  as
  otherwise  provided  in clause (vi) of this subparagraph, the suspension
  does not result in a change in placement under federal law.
    (iii)  the  superintendent  of  schools  of  a school district, either
  directly or upon recommendation of a hearing officer designated pursuant
  to paragraph c of this subdivision, may order the placement of a student
  with a disability  into  an  interim  alternative  educational  setting,
  another  setting  or  suspension  for up to ten consecutive school days,
  inclusive of any period in which the student is placed in an appropriate
  interim alternative educational setting, another setting  or  suspension
  pursuant to clause (ii) of this subparagraph for the behavior, where the
  superintendent determines in accordance with the procedures set forth in
  this  subdivision that the student has engaged in behavior that warrants
  a suspension, and, except as otherwise provided in clause (vi)  of  this
  subparagraph,  the  suspension  does not result in a change in placement
  under federal law.
    (iv) the superintendent  of  schools  of  a  school  district,  either
  directly or upon recommendation of a hearing officer designated pursuant
  to paragraph c of this subdivision, may order the change in placement of
  a  student  with  a  disability  to  an  interim alternative educational
  setting for  up  to  forty-five  school  days  under  the  circumstances
  specified in subsection (k)(1)(G) of section fourteen hundred fifteen of
  title  twenty  of  the  United  States  code and the federal regulations
  implementing such statute or a longer period where authorized by federal
  law under the circumstances specified in subsection (k)(1)(C) of section
  fourteen hundred fifteen of title twenty of the United States  code  and
  the  federal  regulations implementing such statute, but in neither case
  shall  such  period  exceed  the  period  of  suspension  ordered  by  a
  superintendent in accordance with this subdivision.
    (v)  the  terms  "day,"  "business  day," and "school day" shall be as
  defined in section 300.11 of title thirty-four of the  code  of  federal
  regulations.
    (vi)  notwithstanding  any  other provision of this subdivision to the
  contrary, upon a determination by a manifestation team that the behavior
  of a student with a disability was not a manifestation of the  student's
  disability,  such student may be disciplined pursuant to this section in
  the same manner and for the same  duration  as  a  nondisabled  student,
  except  that  such  student  shall  continue  to receive services to the
  extent required under federal law and regulations, and such services may
  be provided in an interim alternative educational setting.
    (vii) an impartial hearing officer appointed pursuant  to  subdivision
  one  of  section  forty-four  hundred  four  of this chapter may order a
  change in placement of a student with a  disability  to  an  appropriate
  interim  alternative  educational  setting  for not more than forty-five
  school days under the circumstances specified in subsections (k)(3)  and
  (k)(4) of section fourteen hundred fifteen of title twenty of the United
  States  code  and  the  federal  regulations implementing such statutes,
  provided that such procedure may be repeated, as necessary.
    (viii) nothing in this section shall be  construed  to  authorize  the
  suspension  or  removal  of  a student with a disability from his or her
  current educational placement for violation of school rules following  a
  determination   by   a   manifestation  team  that  the  behavior  is  a
  manifestation of the student's disability, except  as  authorized  under
  federal law and regulations.
    (ix)  the  commissioner  shall  implement  this  paragraph by adopting
  regulations which coordinate the procedures required for  discipline  of
  students  with  disabilities, and students presumed to have a disability
  for discipline purposes, pursuant to subsection (k) of section  fourteen
  hundred  fifteen  of  title  twenty  of  the  United States code and the
  federal  regulations  implementing  such  statute,  with   the   general
  procedures for student discipline under this section.
    * NB Effective until June 30, 2018
    * g. Discipline of students with disabilities and students presumed to
  have a disability for discipline purposes. (1) Notwithstanding any other
  provision  of  this  subdivision  to  the  contrary,  a  student  with a
  disability as such term is defined in section forty-four hundred one  of
  this  chapter and a student presumed to have a disability for discipline
  purposes,  may  be  suspended  or  removed  from  his  or  her   current
  educational  placement  for violation of school rules only in accordance
  with the procedures established in this section, the regulations of  the
  commissioner  implementing this paragraph, and subsection (k) of section
  fourteen hundred fifteen of title twenty of the United States  code  and
  the  federal  regulations implementing such statute, as such federal law
  and regulations are from time to time amended. Nothing in this paragraph
  shall be construed to confer greater rights on such  students  than  are
  conferred  under applicable federal law and regulations, or to limit the
  ability of a school district to change the educational  placement  of  a
  student  with  a disability in accordance with the procedures in article
  eighty-nine of this chapter.
    (2) As  used  in  this  paragraph,  a  "student  presumed  to  have  a
  disability  for discipline purposes" shall mean a student who the school
  district is deemed to have knowledge was a  student  with  a  disability
  before  the  behavior  that  precipitated  disciplinary action under the
  criteria in subsection (k)(8) of section  fourteen  hundred  fifteen  of
  title  twenty  of  the  United  States  code and the federal regulations
  implementing such statute.
    (3) In applying the federal law consistent with this section:
    (i) in the event of a conflict between the procedures  established  in
  this section and those established in subsection (k) of section fourteen
  hundred  fifteen  of  title  twenty  of  the  United States code and the
  federal regulations implementing such statute, such federal statute  and
  regulations shall govern.
    (ii)  the  trustees  or  board  of education of any school district, a
  district superintendent of schools or a building  principal  shall  have
  authority  to order the placement of a student with a disability into an
  appropriate interim alternative educational setting, another setting  or
  suspension for a period not to exceed five consecutive school days where
  such  student  is  suspended pursuant to this subdivision and, except as
  otherwise provided in clause (vi) of this subparagraph,  the  suspension
  does not result in a change in placement under federal law.
    (iii)  the  superintendent  of  schools  of  a school district, either
  directly or upon recommendation of a hearing officer designated pursuant
  to paragraph c of this subdivision, may order the placement of a student
  with a disability  into  an  interim  alternative  educational  setting,
  another  setting  or  suspension  for up to ten consecutive school days,
  inclusive of any period in which the student is placed in an appropriate
  interim alternative educational placement, another setting or suspension
  pursuant to clause (ii) of this subparagraph for the behavior, where the
  superintendent determines in accordance with the procedures set forth in
  this subdivision that the student has engaged in behavior that  warrants
  a  suspension,  and, except as otherwise provided in clause (vi) of this
  subparagraph, the suspension does not result in a  change  in  placement
  under federal law.
    (iv)  the  superintendent  of  schools  of  a  school district, either
  directly or upon recommendation of a hearing officer designated pursuant
  to paragraph c of this subdivision, may order the change in placement of
  a student with  a  disability  to  an  interim  alternative  educational
  setting  for  up  to  forty-five  days,  but not to exceed the period of
  suspension  ordered  by  a  superintendent  in  accordance   with   this
  subdivision,  under  the circumstances specified in subsection (k)(1) of
  section  fourteen  hundred  fifteen of title twenty of the United States
  code and the federal regulations implementing such statute.
    (v) the terms "day," "business day," and  "school  day"  shall  be  as
  defined  in  section  300.9  of title thirty-four of the code of federal
  regulations.
    (vi) notwithstanding any other provision of this  subdivision  to  the
  contrary,  upon  a  determination  by the committee on special education
  that the behavior of a student with a disability was not a manifestation
  of the student's disability, such student may be disciplined pursuant to
  this section in the same manner as a nondisabled  student,  except  that
  such  student  shall continue to receive services to the extent required
  under federal law and regulations.
    (vii) an impartial hearing officer appointed pursuant  to  subdivision
  one  of  section  forty-four  hundred  four  of this chapter may order a
  change in placement of a student with a  disability  to  an  appropriate
  interim  alternative  educational  setting  for not more than forty-five
  days under the circumstances specified in subsections (k)(2) and  (k)(7)
  of section fourteen hundred fifteen of title twenty of the United States
  code  and  the  federal regulations implementing such statutes, provided
  that such procedure may be repeated, as necessary.
    (viii) nothing in this section shall be  construed  to  authorize  the
  suspension  or  removal  of  a student with a disability from his or her
  current educational placement for violation of school rules following  a
  determination by the committee on special education that the behavior is
  a  manifestation of the student's disability, except as authorized under
  federal law and regulations.
    (ix) the commissioner  shall  implement  this  paragraph  by  adopting
  regulations  which  coordinate the procedures required for discipline of
  students with disabilities, and students presumed to have  a  disability
  for  discipline purposes, pursuant to subsection (k) of section fourteen
  hundred fifteen of title twenty  of  the  United  States  code  and  the
  federal   regulations   implementing  such  statute,  with  the  general
  procedures for student discipline under this section.
    * NB Effective June 30, 2018
    3-a. Teacher removal of a disruptive pupil. In addition,  any  teacher
  shall  have  the  power  and  authority to remove a disruptive pupil, as
  defined in subdivision  two-a  of  this  section,  from  such  teacher's
  classroom  consistent  with discipline measures contained in the code of
  conduct adopted by the board pursuant to  section  twenty-eight  hundred
  one of this chapter. The school authorities of any school district shall
  establish  policies  and procedures to ensure the provision of continued
  educational programming and activities for  students  removed  from  the
  classroom pursuant to this subdivision and provided further that nothing
  in  this subdivision shall authorize the removal of a pupil in violation
  of any state or federal law or regulation. No pupil shall return to  the
  classroom  until  the  principal makes a final determination pursuant to
  paragraph c of this subdivision,  or  the  period  of  removal  expires,
  whichever is less.
    * a.  Such  teacher shall inform the pupil and the school principal of
  the reasons for the removal. If  the  teacher  finds  that  the  pupil's
  continued presence in the classroom does not pose a continuing danger to
  persons or property and does not present an ongoing threat of disruption
  to  the  academic  process,  the  teacher  shall,  prior to removing the
  student from the classroom, provide the student with an  explanation  of
  the  basis for the removal and allow the pupil to informally present the
  pupil's version of relevant events. In  all  other  cases,  the  teacher
  shall provide the pupil with an explanation of the basis for the removal
  and  an informal opportunity to be heard within twenty-four hours of the
  pupil's  removal, provided that if such twenty-four hour period does not
  end on a school day, it shall be extended to the corresponding  time  on
  the next school day.
    * NB Effective until July 1, 2016
    * a.  Such  teacher shall inform the pupil and the school principal of
  the reasons for the removal. If  the  teacher  finds  that  the  pupil's
  continued presence in the classroom does not pose a continuing danger to
  persons or property and does not present an ongoing threat of disruption
  to  the  academic  process,  the  teacher  shall,  prior to removing the
  student from the classroom, provide the student with an  explanation  of
  the  basis for the removal and allow the pupil to informally present the
  pupil's version of relevant events. In  all  other  cases,  the  teacher
  shall provide the pupil with an explanation of the basis for the removal
  and  an informal opportunity to be heard within twenty-four hours of the
  pupil's removal.
    * NB Effective July 1, 2016
    * b. The principal shall inform the person  in  parental  relation  to
  such  pupil  of  the removal and the reasons therefor within twenty-four
  hours of the pupil's removal, provided that  if  such  twenty-four  hour
  period  does  not  end  on  a  school  day,  it shall be extended to the
  corresponding time on the next school day. The pupil and the  person  in
  parental  relation  shall,  upon request, be given an opportunity for an
  informal conference with the principal to discuss the  reasons  for  the
  removal. If the pupil denies the charges, the principal shall provide an
  explanation  of  the  basis  for  the removal and allow the pupil and/or
  person in parental relation to the pupil an opportunity to  present  the
  pupil's  version of relevant events. Such informal hearing shall be held
  within forty-eight hours of the pupil's removal, provided that  if  such
  forty-eight  hour  period  does  not  end  on  a school day, it shall be
  extended to the  corresponding  time  on  the  second  school  day  next
  following the pupil's removal. For purposes of this subdivision, "school
  day"  shall  mean  a  school  day  as  defined pursuant to clause (v) of
  subparagraph three of paragraph g of subdivision three of this section.
    * NB Effective until July 1, 2016
    * b. The principal shall inform the person  in  parental  relation  to
  such  pupil  of  the removal and the reasons therefor within twenty-four
  hours of the pupil's removal. The  pupil  and  the  person  in  parental
  relation  shall,  upon  request, be given an opportunity for an informal
  conference with the principal to discuss the reasons for the removal. If
  the pupil denies the charges, the principal shall provide an explanation
  of the basis for the removal  and  allow  the  pupil  and/or  person  in
  parental  relation  to  the  pupil an opportunity to present the pupil's
  version of relevant events. Such informal hearing shall be  held  within
  forty-eight hours of the pupil's removal.
    * NB Effective July 1, 2016
    * c.  The  principal shall not set aside the discipline imposed by the
  teacher unless the principal finds that the charges  against  the  pupil
  are not supported by substantial evidence or that the pupil's removal is
  otherwise  in  violation  of law or that the conduct warrants suspension
  from school pursuant to this section and a suspension will  be  imposed.
  The  principal's  determination made pursuant to this paragraph shall be
  made by the close of business on the school day next succeeding the  end
  of  the  forty-eight  hour  period  for an informal hearing contained in
  paragraph b of this subdivision.
    * NB Effective until July 1, 2016
    * c. The principal shall not set aside the discipline imposed  by  the
  teacher  unless  the  principal finds that the charges against the pupil
  are not supported by substantial evidence or that the pupil's removal is
  otherwise in violation of law or that the  conduct  warrants  suspension
  from  school  pursuant to this section and a suspension will be imposed.
  The principal's determination made pursuant to this paragraph  shall  be
  made by the close of business on the day succeeding the forty-eight hour
  period  for  an  informal  hearing  contained  in  paragraph  b  of this
  subdivision.
    * NB Effective July 1, 2016
    d. The principal may, in his or her  discretion,  designate  a  school
  district  administrator,  to  carry  out  the  functions required of the
  principal under this subdivision.
    4. Expense. a. The expense  attending  the  commitment  and  costs  of
  maintenance  of any school delinquent shall be a charge against the city
  or district where he  resides,  if  such  city  or  district  employs  a
  superintendent of schools; otherwise it shall be a county charge.
    b.  The  school  authorities  may institute proceedings before a court
  having jurisdiction to determine the liability of a person  in  parental
  relation  to  contribute  towards the maintenance of a school delinquent
  under sixteen years of age ordered  to  attend  upon  instruction  under
  confinement.  If  the  court  shall find the person in parental relation
  able to contribute towards the maintenance of such a minor, it may issue
  an order fixing the amount to be paid weekly.
    5. Involuntary transfers of pupils who have not been determined to  be
  a  student  with a disability or a student presumed to have a disability
  for discipline purposes.
    a. The board of education, board of  trustees  or  sole  trustee,  the
  superintendent  of  schools,  or  district superintendent of schools may
  transfer a pupil who has not been determined to  be  a  student  with  a
  disability as defined in section forty-four hundred one of this chapter,
  or  a  student  presumed to have a disability for discipline purposes as
  defined in paragraph g of subdivision three of this section from regular
  classroom instruction to an appropriate educational setting  in  another
  school  upon  the  written  recommendation  of  the school principal and
  following independent review thereof. For purposes of  this  section  of
  the  law,  "involuntary  transfer" does not include a transfer made by a
  school district as part of a plan to reduce racial imbalance within  the
  schools  or  as  a  change  in  school  attendance zones or geographical
  boundaries.
    b. A school principal may initiate a non-requested transfer  where  it
  is  believed  that such a pupil would benefit from the transfer, or when
  the pupil would receive an adequate and appropriate education in another
  school program or facility.
    No recommendation  for  pupil  transfer  shall  be  initiated  by  the
  principal  until  such  pupil and a person in parental relation has been
  sent   written   notification   of   the   consideration   of   transfer
  recommendation.  Such  notice  shall set a time and place of an informal
  conference with the principal and shall inform such person  in  parental
  relation  and  such pupil of their right to be accompanied by counsel or
  an individual of their choice.
    c. After the conference and if the principal concludes that the  pupil
  would  benefit  from  a  transfer  or  that  the  pupil would receive an
  adequate  and  appropriate  education  in  another  school  program   or
  facility,  the  principal  may issue a recommendation of transfer to the
  superintendent. Such  recommendation  shall  include  a  description  of
  behavior and/or academic problems indicative of the need for transfer; a
  description  of  alternatives explored and prior action taken to resolve
  the problem. A copy of that letter  shall  be  sent  to  the  person  in
  parental relation and to the pupil.
    d.  Upon  receipt of the principal's recommendation for transfer and a
  determination to consider that recommendation, the superintendent  shall
  notify  the  person  in  parental relation and the pupil of the proposed
  transfer and of their right to a fair hearing as provided in paragraph c
  of subdivision three of this section and shall list  community  agencies
  and free legal assistance which may be of assistance. The written notice
  shall  include a statement that the pupil or person in parental relation
  has ten days to request a hearing and that the proposed  transfer  shall
  not take effect, except upon written parental consent, until the ten day
  period  has  elapsed,  or, if a fair hearing is requested, until after a
  formal decision following the hearing is rendered, whichever is later.
    Parental consent to a transfer shall not constitute a  waiver  of  the
  right to a fair hearing.
    6.  Transfer  of a pupil. Where a suspended pupil is to be transferred
  pursuant to subdivision five of this section, he or she shall remain  on
  the  register  of  the  original  school  for  two school days following
  transmittal of his or her records to the school to which he or she is to
  be transferred. The receiving school shall  immediately  upon  receiving
  those  records transmitted by the original school, review them to insure
  proper placement of the pupil. Staff members who  are  involved  in  the
  pupil's   education   must   be  provided  with  pertinent  records  and
  information relating to the background and problems of the pupil  before
  the pupil is placed in a classroom.
    * 7.  Transfer  of  disciplinary  records.  Notwithstanding  any other
  provision of law to the contrary, each local educational agency, as such
  term is defined in subsection twenty-six of section  ninety-one  hundred
  one  of  the Elementary and Secondary Education Act of 1965, as amended,
  shall establish procedures in accordance with section forty-one  hundred
  fifty-five  of  the  Elementary  and Secondary Education Act of 1965, as
  amended, and the Family Educational Rights and Privacy Act of  1974,  to
  facilitate   the  transfer  of  disciplinary  records  relating  to  the
  suspension or  expulsion  of  a  student  to  any  public  or  nonpublic
  elementary  or  secondary school in which such student enrolls or seeks,
  intends or is instructed to enroll, on a full-time or part-time basis.

 


Friday, December 4, 2015

Functions of the Nassau County Probation Department

Functions of the Nassau County Probation Department include Pre-Dispositional investigations, Probation Supervision, Field Investigations and Operations, Alcohol Interlock Monitoring (AIM), Pre-Trial Services (Conditional Release To Probation- CRP), Adolescent Diversion Program (ADP), Intake Services, Juvenile Detention Center   


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Friday, October 16, 2015

NY Court of Appeals- Gravity Knife Case

People v Sans 2015

NY Slip Op 07529 Decided on October 15, 2015 Court of Appeals Fahey,

J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. 

Decided on October 15, 2015 
No. 140 

[*1]The People & c., Respondent, 

v

Michael Sans, Appellant. 

FAHEY, J.:

In the accusatory instrument charging defendant, Michael Sans, with a misdemeanor, a police officer stated that he had "observed the defendant remove a knife from the defendant's pocket, . . . recovered said knife from the defendant," and "tested the . . . knife and [*2]determined that it was a gravity knife, in that it opens with centrifugal force and locks automatically in place." Upon a guilty plea, the Criminal Court of the City of New York convicted defendant of criminal possession of a weapon in the fourth degree (Penal Law § 265.01 [1]). He waived prosecution by information.

On appeal, defendant contended that the accusatory instrument was jurisdictionally defective and sought its dismissal. The Appellate Term affirmed Criminal Court's judgment, ruling that the accusatory instrument was facially sufficient (40 Misc 3d 141 [A] [App Term, 2d Dept, 9th & 10th Jud Dists 2013]). A Judge of this Court granted defendant leave to appeal (23 NY3d 1042 [2014]). We now affirm.

The accusatory instrument must be examined under the standard applicable to misdemeanor complaints, given defendant's waiver of the filing of an information. Under the reasonable cause standard (see generally People v Dumas, 68 NY2d 729, 731 [1986]), the factual part of a misdemeanor complaint must allege "facts of an evidentiary character" (CPL 100.15 [3]) establishing "reasonable cause" to believe that the defendant committed the crime charged (CPL 100.40 [4] [b]).

Defendant principally contends that the accusatory instrument was insufficient under this test because it contained no allegation establishing a prima facie case that the blade of the knife, once released, was "locked in place by means of a button, spring, lever or other device" (Penal Law § 265.00 [5]), as required by the statutory definition of a gravity knife.

The statute provides that, to be prohibited as a gravity knife, a knife must have a blade that is locked into an open position by means of a device. This criterion " 'requires that the blade lock in place automatically upon its release and without further action by the user' " (People v Dreyden, 15 NY3d 100, 104 [2010], quoting People v Zuniga, 303 AD2d 773, 774 [2d Dept 2003], mot for lv to appeal withdrawn, 100 NY2d 567 [2003]). It distinguishes a gravity knife from one that "requires manual locking" (Dreyden, 15 NY3d at 104).

Defendant argues that an accusatory instrument alleging possession of a gravity knife must expressly state that the knife locks by means of a device. We disagree. By stating that a knife, once opened, "locks automatically in place," an accusatory instrument conveys to a defendant that his knife was observed (1) to lock in an open position, rather than merely having a bias towards remaining open, and (2) to lock by means of a built-in device, rather than manually. A mechanism that locks itself by means of such a device is naturally described as locking "automatically." Indeed, many New York cases have treated locking "by means of a . . . device" (Penal Law § 265.00 [5]) as synonymous with "automatically" locking for these purposes (see e.g. People v Terrance, 101 AD3d 624, 625 [1st Dept 2012], lv denied, 20 NY3d 1065 [2013]; People v Neal, 79 AD3d 523, 524 [1st Dept 2010], lv denied, 16 NY3d 799 [2011]; Zuniga, 303 AD2d at 774]). Moreover, because of the use of the generic term "device" in the statute, there can be no requirement that an arresting officer specify any particular kind of mechanism on the [*3]knife that causes it to lock in place.

Our decision in Dreyden is not to the contrary. There, the relevant part of the accusatory instrument stated only that the arresting officer had seen Dreyden "in possession of a gravity knife . . . in that [the officer] recovered said gravity knife . . . from defendant's person" (brief and appendix for defendant-appellant in People v Dreyden, 15 NY3d 100 [2010], available at 2009 WL 6616034). That conclusory language "failed to give any support or explanation whatsoever for the officer's belief" (Dreyden, 15 NY3d at 103), thus depriving Dreyden of due notice of the charged crime. Unlike Dreyden, defendant Sans cannot justifiably claim that the language used in the accusatory instrument impaired his "basic rights to fair notice sufficient to enable preparation of a defense and to prevent double jeopardy" (People v Casey, 95 NY2d 354, 366 [2000]). A reasonable defendant would have understood that the prosecution would be required to prove that his knife, once opened, locked without further manual action. We conclude that the language used in the accusatory instrument gave defendant "sufficient notice of the charged crime to satisfy the demands of due process and double jeopardy" (Dreyden, 15 NY3d at 103).

Defendant also suggests that the accusatory instrument insufficiently alleged that the blade of the knife was "released from the handle or sheath . . . by the force of gravity or the application of centrifugal force" (Penal Law § 265.00 [5]). This contention lacks validity because the accusatory instrument specified that the officer tested the knife and determined that it opened "with centrifugal force." Based upon that allegation, it can reasonably be inferred that the officer flicked the knife open with his wrist. In any event, the officer's failure to specify the precise motion he used to open the knife did not prevent defendant from preparing his defense or avoiding double jeopardy, and therefore did not amount to a jurisdictional defect.

Finally, defendant argues that, to be jurisdictionally valid, the accusatory instrument should have alleged the officer's training or experience in the identification of gravity knives. He cites our directive in Dreyden that "[a]n arresting officer should, at the very least, explain briefly, with reference to his training and experience, how he or she formed the belief that the object observed in defendant's possession was a gravity knife" (Dreyden, 15 NY3d at 104). Defendant misreads this prescription. We do not mandate that an officer recite that he or she has training and experience in identifying gravity knives or expressly state the origin of his or her skills in that area. Rather, Dreyden requires that an arresting officer explain the basis of his or her conclusion that the defendant's knife was a gravity knife. The general principle applicable here is that "when an allegation involves a conclusion drawn by a police officer that involves the exercise of professional skill or experience, some explanation concerning the basis for that conclusion must be evident from the accusatory instrument" (People v Jackson, 18 NY3d 738, 746 [2012]). Here, the accusatory instrument sufficiently pleaded that the police officer exercised his expertise by testing the knife and determining that it opened and locked in the [*4]manner proscribed by the gravity knife statute.

Accordingly, the order of the Appellate Term should be affirmed.

* * * * * * * * * * * * * * * * *

Order affirmed. Opinion by Judge Fahey. Chief Judge Lippman and Judges Pigott, Rivera, Abdus-Salaam and Stein concur.

Decided October 15, 2015


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