Frequently Asked Questions (FAQ)
What is an ACD?
An ACD is an adjournment in contemplation of dismissal. The short-hand term used in NYC is "ACD" and outside of New York City such as Long Island the short-hand term "ACOD" is used. An ACD is neither a form of probation nor a conviction. In New York State an ACD is covered under C.P.L. §170.55 and C.P.L. §170.56 for ACDs involving Marijuana. In a case where an ACD has been offered, the judge usually adjourns the case for a period of six (6) months (or 1 year in Marijuana ACD cases) after which time the case is dismissed and sealed as long as the individual stays out of trouble during said period (i.e. no new arrests). Outside of an outright dismissal an ACD is the next best thing.
What is probable cause?
In order for the police to effectuate an arrest they must have probable cause. Probable cause occurs when the police have enough evidence to believe that the accused committed the crime being alleged. Evidence can be anything from statements from a complaining witness and or eyewitness, DNA, photographs, medical records, 911 emergency phone calls to the police, video footage, fingerprint evidence, ballistics, police observations, etc.
What is 180.80?
180.80 is a short-hand term for New York Criminal Procedure Law §180.80 and it occurs when there is a felony complaint, the accused has been arraigned, and he or she has not been released on their own recognizance. The prosecution then has between 124 hours (5 days) or, in the event that a Saturday, Sunday, or legal holiday occurs during the custody, then the prosecution has 144 hours (6 days) to get an indictment against the accused. The DA’s office must afford the accused an opportunity to testify before the grand jury prior to indictment. It should be noted that the accused waives his United States Constitution 5th Amendment right to self-incrimination when he testifies before the grand jury and whatever he or she says in the panel can be used against him or her at trial. If the prosecutor does not obtain a timely indictment on an accused who is in custody, the accused is released pursuant to C.P.L. §180.80. The release does not mean the case is concluded. The prosecution’s failure to comply with C.P.L. §180.80 simply means that the accused is released on his or her own recognizance pending any further action in his or her case.
What should I do if I get arrested?
Do not argue with the police officers and go with them peacefully. Do not make any statements and wait to speak to your attorney. In fact, the only person you should be speaking to about your case is your attorney. If you have been arrested and accused of a crime please feel free to contact my office regarding your matter.
What is the purpose of an arraignment?
The purpose of the arraignment is for a formal reading of the charges to be read in the presence of the accused to inform him or her of the allegations against him or her. The accused then has the opportunity to enter a plea of guilty or not guilty.
What is bail?
Bail is the amount of money the accused must post in order to be released from custody until their trial is heard or the case is disposed of in a plea. The court will look at a number of factors when deciding the amount of bail such as whether the accused is a flight risk, warrant history, type of alleged crime, the strength of the prosecution’s case, criminal record (if any), and ties to the community. The court determines the amount of bail, but the 8th Amendment of the U.S. Constitution bars the court from making the bail too excessive.
What is a 240.20?
A 240.20 is a short-hand term used for New York Penal Law §240.20 disorderly conduct and is often referred to as a "discon." The accused does not acquire a criminal record by taking a plea to a 240.20 because it is simply a violation and not a crime. Additionally, violations except for unlawful possession of marijuana are sealable. Since 1991 these cases usually are sealed automatically. Usually takes a year from the date of sentence. If the matter is not sealed a year from the date you took the plea then have an attorney file a motion to seal it. It should also be noted that you can request a copy of your criminal record from the Division of Criminal Justice Services (DCJS). Outside of getting an outright dismissal or an ACD, a 240.20 is the next best thing.
What is a DWI?
DWI is a short-hand term used to refer to Driving While Intoxicated. DWIs are covered under the Vehicle and Traffic Law and not the Penal Law. It is a crime in New York to operate a motor vehicle while under the influence of drugs or alcohol. For your safety, and the safety of others, you should never drive a car, or any other type of vehicle, after you have taken drugs or consumed alcohol.
What happens if you die without creating a Will?
Your property passes via NYS intestacy laws, which is found in Article 4 of the New York Estates, Powers, Trusts Law. Intestacy is the condition of the estate of a person who dies owning property without having made a valid Will. Alternatively, this may also apply where a Will or declaration has been made, but only applies to part of the estate and does not apply to the entire estate. The remaining estate forms the "Intestate Estate." Intestacy refers to the body of law that determines who is entitled to the property from the estate under the rules of inheritance. Generally, the next of kin would receive decedent's assets in equal shares according to their degree of kinship.
Why create a Will?
By creating a Will, you can maintain control over how your assets will be distributed upon your death. In the case you do not execute a Will, you will have no say in the eventual disposition of your assets. Additionally, your assets may be paid to the state if none of your heirs are found. When you create a Will you control how your assets are distributed upon your death. A Will permits the testator (the person creating the will) to select the fiduciaries - executors, trustees, guardians of any minor children upon the death of a surviving parent. Creating a Will gives the testator the opportunity to make a special provision for a beneficiary who is disabled or under the age of majority, a trust can be created within the will as well. Wills allow for tax planning for married couples, resulting in significant tax savings.
Can I do a Last Will and Testament on my own or do I need an attorney?
You can prepare a Will on your own, but I would strongly suggest that you have it prepared by an attorney since it is a legal document. A Will must meet the legal requirements set forth by New York State in order for it to be valid. In New York, the laws regarding the valid execution and witnessing of a Will are set forth in the New York Estates, Powers & Trusts Law, Article 3 Substantive Law of Wills.