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Long Island, New York Criminal Defense Blog
Thursday, October 24, 2019
Effective January 1, 2020, Criminal Justice Reforms in New York State will apply to all cases pending on that date even if the matter commenced before that date. They will be many significant changes to how criminal matters will proceed. Some important changes include that: Discovery will be automatic and there will not be a need for written demands or discovery motions. The district attorneys offices will be required to provide discovery to defense counsel not later than 15 days after the defendant's arraignment on any accusatory instrument. This includes a misdemeanor complaint, felony complaint, or any other instrument. Read more . . .
Wednesday, December 26, 2018
Have you been arrested or under criminal investigation in New York? If so, it could be a daunting process and you need a top notch, hard working criminal defense attorney to protect your rights and fight for you. Attorney Michael A. Arbeit has been representing those accused of crimes and/or under criminal investigation in the State of New York since 1998. All matters are personally handled by Mr. Arbeit and each case is given the individual attention it deserves. Read more . . .
Friday, September 22, 2017
Have you been convicted of a crime in New York? Has it been ten (10) years since your sentencing date? Do you want that conviction sealed?
Well, effective October 7, 2017, pursuant to Criminal Procedure Law Section 160.59, there will be sealing of certain records in New York State. Read more . . .
Saturday, May 13, 2017
 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
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
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
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 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 Read more . . .
Friday, October 16, 2015
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
Monday, July 6, 2015
Representing Those Accused of Fraud Read more . . .
Wednesday, April 1, 2015
In Nassau County and Suffolk County (Long Island), arrests for Driving While Intoxicated are very prevalent. It seems as though the word is still not out that to all that Drinking and Driving is not longer socially acceptable (if it ever was) and the police are cracking down hard and the District Attorney's Office and Judges are getting tougher with their plea bargaining policies and sentences respectively. Read more . . .
Based in Freeport, NY Michael A. Arbeit, P.C. serves clients throughout Nassau County, Suffolk County, Queens County, New York County, Kings County, and Bronx County New York.
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