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Long Island, New York Criminal Defense Blog
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 . . .
Wednesday, January 14, 2015
In New York, many people think the sole difference between Petit Larceny and Grand Larceny is the monetary amount that is alleged to be taken, but that is wrong. Some property, when taken without permission of the owner regardless of their monetary value, is considered to be Grand Larceny. Read more . . .
Friday, January 9, 2015
In New York State, the Standards of Proof in a criminal case are governed by Article 70 of the Criminal Procedure Law. Read more . . .
Friday, January 9, 2015
In New York, the standard of proof the prosecution or government must meet in a criminal case is proving guilt “beyond a reasonable doubt.” But, what does “beyond a reasonable doubt” really mean? Read more . . .
Monday, January 5, 2015
Over the years of practicing Criminal Defense Law, I have represented too many clients who have been arrested in Nassau County, Suffolk County, and Queens County New York after they were approached by police while simply sitting in their parked cars. Is this legal? Hopefully this article will shed a little light into that question. Read more . . .
Tuesday, December 30, 2014
In New York, most people have never heard of the term “Gravity Knife” until they are unfortunately arrested for Possession of a Weapon. A “Gravity Knife” is defined in the New York State Penal Law section 265.00(5) as “any knife which has blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” The definition is so broad that it applies to almost all everyday folding knives, knives that people use for work to cut sheet rock, boxes, and rope and even to common knives used for hunting, trapping, and fishing. 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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