Capital Region Legal News
Monday, February 22, 2016
How important are chemical tests for DWI convictions in New York State?
When a driver is stopped by the police for any reason and the officers suspect that the driver is intoxicated, they will ask that person to take a breath or blood test to determine blood alcohol content (BAC). Since law enforcement officials cannot force the suspect to take such a test, it is debatable what the driver who has been pulled over should do.
Criminal defense attorneys often recommend that suspects who are impaired not take the test since it will provide a quantified piece of evidence. In fact, according to the NYS Department of Motor Vehicles, a third of all suspects in Erie and Niagara Counties refuse the chemical test. This is a higher percentage of refusals than in other counties in Western New York State, as well as in the nation in general. Fewer criminal convictions for DWI in these counties are, presumably, the result of this pattern of behavior. Even so, there are some cases where taking the chemical test could work in the defendant's favor since the individual appears more intoxicated than he or she really is, and there are negative consequences to refusing to oblige.
Refusal to take the test is no "Get out of jail free" card. Lacking precise chemical evidence, the prosecutor will use what is called "common law indications of intoxication," including: erratic driving patterns, staggering gait, inability to balance, and slurred speech. Being observational, rather than numerical, however, such signs are more difficult to use as proof in a court of law. This is shown by the fact that drivers who refused to take the test had a slightly higher rate of lowered charges than did those who agreed to take the test.
Private citizens, particularly those who have been negatively impacted by a drunk driving crash, perhaps by experiencing a severe injury or losing a loved one, obviously take a dim view those who drive impaired. Many public officials, along with organizations like Mothers Against Drunk Driving, have spent years trying to toughen laws against DUI offenders. They refer to the section of the Vehicle and Traffic Law Section 1194 that explicitly states:
"Any person who operates a motor vehicle in this state shall be deemed to have given consent to a chemical test of one or more of the following: breath, blood, urine, or saliva, for the purpose of determining the alcohol and/or drug content of the blood..." providing that test is administered by law enforcement.
Nonetheless, drivers are routinely permitted to refuse chemical tests to determine their level of intoxication. There are, however, serious consequences of refusal, including:
• One year loss of license, except possibly to meet medical needs or for school attendance
• Denial of plea reduction in some NYS counties, like Albany and Nassau
• Court- enforced to submission to a blood test when an accident has resulted in serious injury or fatality
Law enforcement and prosecuting attorneys are looking for ways to increase the number of intoxicated drivers who take one of the chemical tests, both to obtain more convictions and to get dangerous drivers off the road. Former District Attorney Clark supports increasing the license loss period to two years, without the possibility of appeal for the entire 24 months. This would certainly make it more difficult and less convenient for drivers to refuse being tested.
If you have been arrested for DUI in New York State, you know you are in serious trouble. Please don't hesitate to consult with one of our knowledgeable attorneys at Ianniello Anderson at 518.350.7755 where we serve clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy and the entire Northeastern NY area with skill and dedication.
Monday, February 15, 2016
What do statistics show about our broken criminal justice system?
As the United States prepares to elect a new president, one hot issue of the campaign is our flawed criminal justice system. Not only are a large number of arrests considered unfair, targeting minority populations disproportionately, there have been far too many cases of abuse by police and prison guards. Most disturbingly, there have been a frightening number of deaths resulting from police shootings of unarmed victims and suspicious deaths within prisons apparently resulting from negligence and/or abuse.
Add to all this that the latest statistics show that, in 2015, four out of 10 people were cleared of the crime they had supposedly committed. Not only is the U.S. imprisoning more people than any other country in the world; we are imprisoning a great many innocent people.
The Harsh Undisputed Facts
The U.S. has less than 5 percent of the world's population, but 25 percent of the world's prisoners.
Crime in the U.S. is at a historic low, but we have more prisoners than we did 30 years ago.
In 2015, 40 percent of prisoners were cleared of crimes for which they had been wrongfully convicted, many after they had spent years incarcerated.
Four out of 10 mistaken incarcerations were for murder; five of the 58 people in this category had been sentenced to death.
The year 2015 set records both for injustice in terms of incarceration and in terms of police brutality.
American police killed 1205 people during last year.
More than two-thirds of the defendants exonerated in homicide cases were people of color; 50 percent were African-American
While we have reliable statistical evidence pertaining to false convictions resulting in death sentences, we do not yet have statistical support for non-capital convictions. Nonetheless, even if the rate is 1 percent, we are still talking about tens of thousands of unjust convictions during last year, and who knows how many unjust convictions in past years resulting in huge numbers of prisoners still incarcerated for crimes they did not commit.
The Cost of Injustice
While it is impossible to tally the cost of unjust imprisonment in terms of human suffering, family emotional and financial distress and dissolution, exacerbation of criminal behavior, incubation of new criminals, increased drug abuse, we can put a monetary price our country pays for maintaining prisoners.
The price of incarcerating individuals, whether they are actually guilty or innocent victims of an unjust system, is the same. In New York State it costs between $50,000 and $60,000 annually to keep a person in prison. This means that the total New York State spends on incarceration in almost $3.6 billion. As the above illustrates, if you are facing criminal charges in New York State, it is essential that you contact an expert criminal defense attorney to protect your rights. Contact Ianniello Anderson, P.C., serving clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy, and the entire Northeastern NY areas at (518) 350.7755.
Wednesday, February 10, 2016
Is buying a home with a group of friends a good idea?
If you are in your 20s or 30s, buying a house might seem impossible. One way that it might become doable is if you purchase a home with a group of friends. This might seem like a good idea, but, there are many variables that make it a less than ideal situation.
So what are the advantages of buying a house with a group of your friends? Most importantly, you can all pool your money for a down payment. In addition, the house could be used as a residence or vacation home. Also, when not in use, the house could be rented out and used as a source of income.
Unfortunately, there are also many disadvantages to this type of arrangement. The home will likely have to be purchased in cash because it is very difficult for a group of three or more people to get a mortgage together. Also, any one of your friends that has bad credit could cause the mortgage rate to increase. You might think about leaving this friend off the loan, but then issues of ownership become confusing. Essentially, if added to the title, this person would have ownership rights but would not be legally responsible for the loan payments. As you can see, this is a less than perfect situation.
There is also a dilemma concerning how to structure the ownership of the home. Two options include ownership as tenants in common or as a limited liability company (LLC). Owning the property as tenants in common will allow you to name the owners, their shares and designate who should inherit from each stakeholder. As tenants in common, however, all of the owners would be exposed to personal liability should a debt arise. With ownership as a limited liability company, the stakeholders would be recognized, but would be sheltered from personal liability. An LLC would have to be set up as a separate entity according to state law. With ownership as a group, you will also have to consider what will happen if one owner wants out or becomes incapable of ownership.
Owning a home as a group might seem like a win-win situation until you get down to the details. If you are interested in the purchase of a residential property in this way or in any other, the experienced Albany, Troy, Saratoga Springs and Clifton Park real estate attorneys at Ianniello Anderson are here to assist you today.
Saturday, January 30, 2016
Can real estate purchasers expect complete anonymity during the transfer process?
There are a number of reasons to insist upon anonymity in the real estate purchase process, particularly if a buyer or seller wishes to keep the purchase price confidential. While many aspects of the real estate purchase process can be kept confidential, recent changes to federal laws may make it more difficult to make purchases of high-end real estate through the use of an anonymous LLC or trust.
According to the federal government, there has been a significant influx in anonymous high-dollar real property transactions, particularly in major metropolitan areas like New York City and Miami. While at first blush this may seem like a savvy way to conduct a complex investment strategy, investigators are suspecting a more sinister motive may be afoot: money laundering.
Investigators take aim at criminal activity
According to the FBI, the types of transactions at the top of the watch-list involve any of the following factors:
- All-cash transactions
- Use of shell companies as the purchaser
- Refusal to identify individuals involved in the purchase
- Extremely high-purchase prices of luxury homes and condos
Investigators began their inquiry into real estate-related money laundering schemes following the publication of a controversial article in the New York Times. In that piece, journalists revealed that shell companies were becoming an increasingly suspicious mechanism for foreign purchases to snatch up high-end real estate, all while realtors and U.S.-based attorneys were turning a blind eye to the actual identities of the purchasers.
For instance, the article revealed that a condominium in the Time Warner Center was recently purchased for over $15 million. The buyer? An entity known simply as “25CC ST74B L.L.C” – which was ultimately revealed to be tied to a wealthy Russian family with ties to organized crime. In the same building, foreign purchases – many of whom are facing corruption charges in their homelands – were made by entities with ties to Greece, China, Colombia, Malaysia, China, Kazakhstan and Mexico.
For the casual real estate purchaser, the new regulations are unlikely to create any difficulty or hurdle in the process – even if an LLC is used to make the purchase. Most notably, the FBI intends to focus its efforts on suspicious all-cash transactions, and has instructed title insurance companies to uncover the true identities of all applicants for title insurance policies.
If you have questions about how to purchase real estate under these new federal rules, you should consult with a qualified real estate attorney.
Thursday, January 28, 2016
Is auto-brewery syndrome a real thing?
You might have missed this interesting court ruling that came down over the holidays: a lady from Hamburg, New York who had been charged with DWI had all charges against her dismissed after her lawyer proved it was not the three drinks she had had earlier that day that made her drunk, but the bacteria in her gut. A lot of our DWI clients have been sending us links to news stories about this case asking if this might have been the situation in their case, so we decided to take a closer look.
The Buffalo News reports the facts of the case as follows:
The woman, a Hamburg resident, was stopped at around 7:15 p.m. on Route 5, near the Ford plant. Hamburg Officer Daniel Gallardo reported that he pulled the woman over after another driver called 911 to report that the driver’s 2010 Toyota Corolla was “weaving all over” the road.
Gallardo reported that he noticed the Corolla’s right front passenger tire was flat and the vehicle was producing “a large amount of smoke and a noticeable smell of burning rubber.”
The driver had alcohol on her breath and “exhibited glassy-bloodshot eyes and slurred speech,” Gallardo reported. The officer said the driver told him she had about three cocktails earlier in the day while visiting her parents in Buffalo.
Although the driver was able to recite the alphabet at the officer’s request, she had trouble with several other sobriety tests, including standing on one foot and talking and turning heel-to-toe, Gallardo reported.
The driver’s BAC was measured at .33 percent by the Breathalyzer and .30 percent in a later blood test administered in the Erie County Medical Center.
How could someone with such a high BAC (.33 is over four times the legal limit, and is in the range where medical professionals are usually called in to make sure the person doesn’t suffer alcohol poisoning or other health problems from their drinking) be functioning well enough to drive a car? And why was her BAC so high after having only three drinks, over several hours, earlier in the day?
Her attorney did some research and found out there is a rare intestinal disorder called “Auto-Brewery Syndrome” (ABS) that can turn ordinary food and beverages into alcohol in a person’s body. The attorney had the client tested for ABS, and sure enough, yeast in her guts was found to be cranking out the booze.
The judge handling the case dismissed it after evidence of the accused’s ABS was introduced. This has a lot of people wondering whether ABS could have played a role in their DWI citations.
The answer to that question is it’s possible, but unlikely. ABS is a relatively new disease that is not widely recognized by the medical community or the courts. In addition to this women from New York, there have only been two other widely publicized cases.
Because this disease is so rare, diagnosing it is not something your local doc is going to be doing on a regular basis. So, if you think you have ABS, you are probably going to have to spend a substantial amount of time and money getting properly diagnosed.
We’ll be keeping a close eye on the case from Hamburg as it is appealed and reviewed by higher New York courts since whatever the higher courts say about this case will become the law of the land here in Eastern Upstate New York despite the fact that this case is from the Western part of the state.
We will also be monitoring the medical research in this area so that we can properly assist people who have been charged with DWI/DUI/and other alcohol-related offenses who think they may be suffering from ABS.
Monday, January 25, 2016
Rape is always a terrible crime, violent and traumatic. In the case of the recent alleged gang rape in a Brooklyn playground, the circumstances were particularly horrible. According to the prosecution, during a recent evening, a gang of five young teenagers accosted a young woman who was walking with her father in the playground. Threatening the father with a gun, they forced him to run and proceeded to take turns raping the victim.
The circumstances of the crime brought to the mind of New Yorkers the specter of the horrendous attack attributed to five juvenile perpetrators in 1989. In that case, after the alleged rapists had spent extensive time in prison, they appealed their convictions and were found innocent of all charges. Another man confessed to, and was convicted of, the crime.
In the recent case, the father says that, after having been threatened with a gun, he ran off to seek help. Later that night, four of the suspects were apprehended, but the fifth suspect remained at large. A few days later, the fifth suspect, Travis Beckford, 17, was arrested after he arrived at high school for his morning classes.
The case is by no means open and shut, involving, as it does, wildly contradictory stories. Not only do two of the suspects state that when they came upon the alleged victim she was having sexual relations with her father -- incest is a felony crime -- but a cell phone video has surfaced, taken by the brother of one of the suspects, showing the young woman, naked from the waist down, smiling in the presence of a young man to whom she is heard apparently agreeing to have sexual relations. In addition to the serious questions this data presents, the alleged weapon has not been recovered by the police, and the alleged victims were unable to identify the supposed perpetrators in a line-up.
Although the young woman was clearly injured and traumatized after the attack, there are many complications to the story. Apparently, the alleged victim was living out of state in foster care until last summer. The man she was with, her biological father, had lost custody of her when she 3 years old. Furthermore, the young woman had had no contact with her biological mother for a very long time. The incest charges are still being investigated, but the father has not yet been charged with a crime, nor has a sample of his DNA been requested.
The young men involved in the case have been charged as adults with rape, sex abuse and committing a criminal sex act. Nonetheless, controversy continues to swirl around the case. There is a prevailing opinion in the Brownsville neighborhood, where the alleged crime took place, that the young woman and her father were engaged in a sexual relationship, and the shadow of the earlier miscarriage of justice in the Central Park jogger case hangs over the situation.
As if these complications were not sufficient, there are also serious questions being asked about why all city playgrounds are not locked during the night to prevent possible criminal activity. In addition, Mayor DiBlasio has expressed dismay that it took several days for him to be informed about the incident, an inaction NYC Police Commissioner Bratton acknowledges was wrong.
If you have been suspected of, or arrested for, rape, incest, or another serious crime, it is essential that you promptly contact a criminal defense attorney who can help you navigate the justice system, gather evidence and witnesses, and aggressively defend you in a court of law.
Friday, January 22, 2016
Have you noticed a growing number of homes in your neighborhood going on the market in the past few months? If so, you are not alone, the Greater Capital Association of Realtors has indicated that 2015 was the best year for the residential real estate market in the Albany area since the recession.
As the Albany Business Review reports, the capitol region saw a spike in residential real estate listings as 2015 came to a close:
“Pending sales of single-family homes in the Capital Region saw a 19 percent increase [over 2014], and new residential listings increased by 9 percent. The average residential sales price — $224,869 — and median residential sales price — $195,000 — stayed roughly the same.”
Will the market stay hot?
Whether the hot market will continue as we get further into 2016 is uncertain.Winter weather always plays a factor in home sales, and it is likely an interest rate increase is on the horizon. Both of these could cause the market to slow down. No matter what happens in the markets, however, the real estate team at Ianniello Anderson is always ready to step up and help our clients close the deals they need done.
Ianniello Anderson has an active and growing residential real estate practice. We credit our growth to the large number of new clients who are referred to us by past clients. Knowing that our past clients are satisfied enough recommend us to their family, friends, and neighbors is a point of pride for us, and proof of the old saying that “what goes around comes around.” We take great pains to treat our clients properly by providing the best service at the lowest prices possible. Getting new clients because we provide exceptional value to our existing clients is seeing our work come full circle.
Do you really need to hire an attorney?
A house is likely the most expensive thing you will ever buy or sell, so it is important that you have the best representation possible to help you complete your transaction successfully. From our perspective, this means hiring both a real estate agent and an attorney to work on your behalf.
Despite the market heating up, we are still hearing about a lot of people that are thinking of going the DIY (do-it-yourself) route and not using a real estate agent or lawyer. It is possible to DIY a real estate transaction, but why risk it?
Engaging a real estate agent can help you buy or sell property more quickly, and hiring an attorney is necessary if you want a professional evaluation of the legal risks involved. Real estate agents are not allowed to provide legal advice, so such advice is something you will only get by hiring an attorney.
Contact Ianniello Anderson Today
If you are buying or selling a home in Eastern Upstate New York, please don't hesitate to consult with one of our knowledgeable attorneys at Ianniello Anderson at 518.350.7755 where we serve clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy and the entire Northeastern NY area with skill and dedication. We are responsive and respectful when our clients have a question; our rates are very competitive; and we are always ready to move quickly when necessary
Thursday, December 31, 2015
What are the latest legal updates with regard to New York’s DUI policy?
Notwithstanding our position as legal advocates on behalf of those accused of driving under the influence, we can all agree that eliminating the instance of DUI-related accidents and injuries should be a top priority for New York lawmakers. Earlier this month, New York Governor Cuomo recognized the efforts of the General Assembly in combatting this difficult problem, including the elevation of the legal drinking age from 18 to 21 – a notion that was signed into law 30 years ago this month.
In a recent speech delivered to the “Under 2 MOU” coalition, Cuomo recounted the work of his father, former Governor Mario Cuomo, in addressing the severity of the DUI-related fatality issue in New York. At the time, there were a reported 784 alcohol-related fatalities on New York’s roadways in 1984. Today? Just 292 – representing a near 60 percent decline.
By raising the legal drinking age, the instance of alcohol-fueled crashes has reduced dramatically. However, this has not prompted law enforcers to back down. They are still focused on combatting the problem of young intoxicated drivers getting behind the wheel. In just a 3-month span over the summer of 2015, dozens of fake ID cards were confiscated, along with 130 arrests for underage drinking. Likewise, the State Liquor Authority (SLA) recently initiated a crackdown against bars and restaurants caught selling alcohol to minors.
The consequences following a DUI conviction can be steep, particularly if the accused has been convicted more than once for driving under the influence. For starters, fines can reach up to $10,000. Moreover, any driver convicted of three or more DUI’s within a 15-year period could face up to 15 years in prison for a Class D felony.
While we are pleased to see such a dramatic reduction in alcohol-related tragedy, we also remain dedicated to helping those charged with DUI combat the state’s allegations and avoid the collateral pitfalls of a documented DUI criminal record.
If you are facing a DUI, don’t go it alone – promptly consult with one of our attorneys
at Ianniello Anderson at 518.350.7755 where we serve clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy and the entire Northeastern NY area with skill and dedication
Thursday, December 31, 2015
Can a defense attorney use police misconduct as a means to exclude evidence?
In a recent story out of New Jersey, two Bloomfield Police Department officers were caught falsifying evidence, lying under oath, and mischaracterizing the entire set of facts surrounding a June 2012 traffic stop. At the time of the stop, officers swore under oath that the suspect in question had resisted arrest and assaulted officers, prompting them to forcefully remove the suspect from the vehicle and restrain him in an aggressive manner.
However, as prosecutors and investigators reviewed dash cam footage – which was obtained via an open records request – it quickly became apparent that the incident did not actually occur as officers had described, and that misconduct had actually occurred on the part of law enforcement.
In contrast to the details recounted by Bloomfield PD officers, Sean Courter and Orlando Trinidad, the suspect had in fact surrendered to policy, shouting “I did nothing wrong,” and holding his hands up as both officers forcibly removed him from the vehicle. Nonetheless, the suspect was charged with eluding, resisting arrest, aggravated assault and attempting to disarm a police officer. All of these charges were later dropped.
As any good criminal defense attorney will attest, there are always two sides to every story. Here, the keen senses of the suspect’s defense attorney led to a review of the dash cam footage – which painted a starkly different picture than what was originally set forth in the suspect’s indictment.
Some cases, however, are not as clear-cut as this and will require a more inquisitive approach to the review of evidence. In the context of a vehicle stop, for example, police must have a cognizable reason to stop a vehicle; they are not permitted to haphazardly pull cars over left and right without reasonable suspicion that a crime is afoot. If the police cannot articulate a valid reason to have pulled over the vehicle and suspect in question, any evidence seized as a result of the stop could be suppressed – which could ultimately lead to a dismissal of the charges.
If you are facing charges, you should consult with a competent criminal defense attorney to discuss your options.
Tuesday, December 22, 2015
What are the various types of real estate fraud and whom do they target?
Real estate scams are all too common, ranging from small irregularities to many-layered fraud. Sometimes real estate attorneys find that their clients have been unwittingly taken advantage of; other times they discover that their clients are actively entangled in a scheme that involves a whole cast of players that may include bankers, investors, title companies, and even other attorneys.
Who do real estate fraud schemes target?
Real estate fraud can lead to individuals or families losing their homes and/or losing their ability to negotiate a mortgage on another property. As is typical in a great many types of crime, the most vulnerable are the most frequently targeted. In real estate scams, the targeted victims fall into three primary categories:
- The elderly
- Homeowners already in foreclosure
- Low income individuals
What are some of the varieties of real estate fraud?
There are a great many varieties of real estate fraud, so home buyers, home sellers, and realtors all need to be aware of some of the risks they may face. These include:
- Rescue from foreclosure
- Mortgage elimination
- Home improvement fraud
- Equity skimming
- Equity fraud
- Fraudulent loan origination
- Land Fraud
- Rental Fraud
- Straw-Man Scheme
- Counseling Agencies
- Predatory Lending
- Aggressive Sales
Even the most common of these fraudulent methods may be unknown to the average home buyer or seller. This is why it is important for those who are buying or selling property to engage the services of a skilled real estate attorney before signing any documents. If you have been taken advantage by a real estate scam artist, or would like to take precautions against such an occurrence, please contact the knowledgeable attorneys at Ianniello Anderson serving clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy, and the entire Northeastern NY areas at (518) 350.7755.
Thursday, December 10, 2015
Are existing laws putting the futures of our adolescents at risk?
Teenage sexting, that is, texting sexual content in words, images, and videos, is getting youngsters into trouble all over the country because our laws have not caught up with our technology. Less than a year ago, two 16-year-olds, high school sweethearts, sent one another nude selfies. Neither coerced, nor abused, the other. Nonetheless, in the eyes of the law in North Carolina, where this took place, they had possessed and distributed child pornography.
If not for a huge public outcry, these two minors, each accused of "exploiting a minor," a felony, might have ended up incarcerated for years and spent decades on the sex offender registry -- all for sharing what they believed to be private pictures of themselves. Fortunately, they were allowed to plea bargain down to misdemeanors and each was sentenced to a year's probation.
Recently, on Long Island, 20 students were suspended for sexting when a video of a sexual encounter between two minors was circulated among the student population. Legally, this is distribution of child pornography. While the Superintendent of Smithtown Central School District wrote a letter to parents stating "[this is] a very serious legal matter that the district will not take lightly," many parents are fighting back, saying their children have no way of protecting themselves from messages being texted to them.
Obviously, the felony laws regarding child pornography were written to prevent predatory behavior, not teenage indiscretions, but until the laws are updated, prosecutors have to walk a fine line. No one wants to ruin the futures of youngsters who are immature and exercising bad judgment. On the other hand, the boundaries can be blurry. There are certainly circumstances under which sexting can become a serious crime -- for example when an adult is involved, when force or harassment is present, or when pictures are posted on public websites.
William Fitzpatrick, president of the National District Attorneys Association, has recommended that prosecutors tread lightly when dealing with adolescent misbehavior, and has called for new legislation targeting this problem, since most, if not all, the laws governing pornography were written prior to the development of the internet.
About 20 states have already adopted new laws addressing juvenile sexting which include misdemeanor charges, and punishments including community service, counseling and criminal records that may be expunged. Even in states that haven't enacted legislation, some judges have come up with inventive punishments, including restricting the cell phone and internet use of the youngsters involved. In most cases, such measures seem much more sensible and productive than publicly branding teenagers as sex offenders, labels that could follow them throughout their lives.
If you or your child is facing a legal problem, please contact the skilled attorneys at Ianniello Anderson, serving clients in the Albany, Clifton Park, Glens Falls, Saratoga Springs, Troy, and the entire Northeastern NY areas, at 518-350-7755.