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New York Criminal Question and Answer Part 2

Click here to see Part 1 of the Q&A.

How does sentencing differ between the various types of drug possession and sale?

A variety of sentencing guidelines have been imposed by the New York state legislature in Albany. The guidelines relate to the how much of each drug one was found with and whether one is charged with drug or merely possessing it. They specifically provide more severe sentences for crack, cocaine and heroin than they do for marijuana.

There’s also a phenomenon of people illegally selling prescription drugs. Very often, drugs such as Vicodin, Oxycontin and Percocet are acquired by people who work in hospitals and then they’re sold on the street. These are drugs are prepared by pharmaceutical companies for medicinal purposes, but they’re abused when taken in inappropriate doses by individuals.

In what situations can somebody plead to a lesser offense?

If an individual is charged with possession of a drug, the person may legitimately have a drug problem. I will often suggest that such individuals participate in a drug treatment program to treat their addiction. If this is a person’s first offense, and was not committed in the context of any kind of violence – because the person did not, for instance, rob anyone to get money to buy the drugs, then an attorney can often convince the prosecutor that this needs help because he or she is suffering from an addiction, and therefore deserves probation.

For juveniles, the court may agree to have the young person sentenced to a “shock program.” Shock programs are generally programs where young people are placed in military-style, intense programs that include a significant amount of manual labor. These programs may be allowed in lieu of a sentence in an actual prison for a first offense. The sentences for these shock programs are generally much shorter than they are for normal prison sentence.

Although various kinds of shock programs have been around for a long time, the requirements and types of programs have changed. Today, they are often used in the cases of minors or young men who have been convicted of selling crack and other drugs on the streets of New York City, Brooklyn and Queens counties. Long Island’s Nassau and Suffolk counties also have relationships with these programs.

Besides shock programs, the courts will often consider other alternatives to jail time. Parole and probation are also used. If someone has already served prison time, he or she can be paroled. Parole consists of a certain amount of time after being released when one must report to a parole officer. During that time, the person must avoid less-than-legal habits, people who are involved in criminal activity, and, of course, you have to stay drug-free.

A person may be put on probation, on the other hand, rather than a jail sentence, or in combination with a jail sentence. A person will generally be required to meet with his probation officer, usually once a month during the probation period.

What happens if someone decides to go into a drug treatment program during this process? How does that affect their jail sentence?

Judges often understand that drug addiction is a condition that requires treatment. They look very positively on those who are proactive and place themselves into a drug treatment program. But going into a drug treatment program is not a “get out of jail free” card. It does not mean that you will not get a jail sentence at all, but it can, in many situations, reduce one’s jail sentence or possibly convince a court to give an extended probationary period, such as five years, rather than sentencing a person to jail time.

What types of representation are available to individuals who have been arrested on a drug crime?

Two basic types of representation are available to such individuals. Legal Aid or 18B, court-appointed attorneys, are available to those who cannot afford to hire their own attorney. The other option is private counsel. Legal Aid and court-appointed attorneys work very hard and with great diligence to represent their clients. But unfortunately, they are often overworked and have limited resources. They cannot give their clients the kind of personal attention that would be available with private counsel.

Private defense counsel, such as the attorneys in our office, can advise you about alternatives to serving jail time. We work with organizations who help individuals avoid actually serving prison time. We sometimes involve social workers at one of these organizations to work with the individuals charged with crimes and we sometimes bring these social workers to court to make presentations to the judge regarding what is involved in the program.

It is important that one is sincere in order for us to be able to effectively convince the court to consider alternatives to jail time. We are often able, by working with the judges, the probation department and outside organizations, to convince the court that both our client and society in general are better off if the person is allowed to pursue treatment, rather than serving time in prison.

Unfortunately, jail can often create better criminals. We are able, very often, to convince judges that our clients should be given a second chance and that they should not be incarcerated, but should be allowed to continue in treatment programs to deal with their drug addiction.

How do criminal drug laws affect minors?

A minor can sometimes be charged as an adult. Sixteen and seventeen year olds are automatically charged as adults, while thirteen to fifteen year old minors may be charged as adults for serious and violent crimes. If ta minor is indeed charged as an adult, they will be subject to the same penalties that an adult would face.

The Family Courts in New York State are designed to handle cases involving minors. When charged as a juvenile, a minor will generally not be sentenced to a more severe penalty than being held in a youth facility until they are either 18 or 21 years old.

However, when a minor is convicted as an adult, he or she has the status of a “youthful offender.” When this is done, the court seals his or her record. So, when a minor is designated a “youthful offender,” his record is sealed and it does not show up as a criminal conviction in the minor’s record.

Employers often ask whether someone has been convicted of a crime when he or she is making an employment application. While one may not falsify such an application, checking “yes” on the employment applications can negatively affect the person’s future employment prospects.

Some judges are aware that young people often make mistakes. Our office knows how to effectively respond when minors are charged with drug crimes in getting them into programs. We have had success in many cases avoiding incarceration sentences and obtaining alternate sentencing. We can take action to induce the district attorney’s office and the judges to work with us in formulating alternatives to jail time for our clients.

The Law Office of Elliot S. Schlissel 479 Merrick Road
Lynbrook, NY 11563

Toll Free: 1-800-344-6431
Nassau phone: 516-561-6645
Queens phone: 718-350-2802
Fax: 516-561-6716 E-Mail

Picture courtesy of atd.com

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