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Troy, NY

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Latham, NY

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Proposed New Campus Sexual Misconduct Guidelines Would Strengthen Protections for the Accused

sexual misconduct guidelines

 
Campus sexual misconduct has long been a concern of university administrators, social activists, and politicians alike. This concern sparked a movement to strengthen the protection of victims of campus sexual misconduct. The zenith of this movement was probably reached in 2011 when the federal government’s “Dear Colleague” letter was delivered to over 4,600 schools.

The “Dear Colleague” letter advised colleges and universities of strengthened sexual misconduct standards that they would have to meet to remain eligible for federal aid. Although it was hailed by many as a landmark policy decision for the protection of victims of sexual misconduct, within a few years, many people had concluded that the pendulum had swung too far the other way. That men were being deprived of the right to defend themselves against sexual misconduct allegations.

Title IX: Both a Sword and a Shield

Title IX of the Civil RIghts Act of 1964 reads as follows:

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

Originally understood as a protection against overt gender discrimination, Title IX has come to be understood as a means to protect college women from sexual assault. Title IX has been asserted as the legal basis for the “Dear Colleague” letter, which is thought to have triggered a wave of expulsions of college men found guilty by campus tribunals applying lax standards of due process against defendants.

Defendants have been fighting back: Since 2011, over 150 federal lawsuits have been filed by male college students who were expelled for sexual assault. Many of these lawsuits have been successful. These students have been using Title IX on their own behalf, arguing that the school exhibited gender bias against them because they were male.   

Change Is in the Air…

Despite successes in federal courts, defendants continue to complain that campus tribunals do not offer them a fair chance to defend themselves against sexual misconduct accusations. The current administration has responded by proposing the modification of the existing higher education sexual misconduct policy in a manner that strengthens protections for the defendant.

In particular, Education Secretary, Betsy DeVos (after having already made some significant changes), is preparing new rules that would not require Congressional approval to go into effect. Strictly speaking, these rules are not mandatory. Instead, the federal government would condition its educational funding on a school’s compliance with them. The following features stand out:

  • The definition of sexual harassment would be modified to equivalence with the definition currently used by the U.S. Supreme Court: “…unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it denies a person access to the school’s education program or activity.” Under the previous administration’s definition, sexual harassment did not have to be pervasive or severe; in fact, it theoretically could be triggered by a single comment of a sexual nature directed towards the complainant.
  • The new rules allow schools to choose which of two possible standards of proof they will use: “preponderance of evidence” (which means something like “more likely than not”), or “clear and convincing evidence.” “Dear Colleague” rules require schools to use the “preponderance of evidence” standard.

Although both standards make it easier to prove a sexual misconduct allegation than the far more stringent “beyond a reasonable doubt” standard used in criminal proceedings, the “clear and convincing evidence” standard is a significantly higher bar to jump over.  

  • Schools will be able to decide for themselves whether to allow an appeals process (the appeals process was encouraged by the previous administration). Schools that now allow appeals allow either party to appeal the result of a sexual misconduct investigation.
  • University jurisdiction over sexual misconduct cases will be limited to misconduct that was alleged to have occurred on campus. It will not include off-campus housing or anywhere else outside of campus boundaries. Local police and prosecutors will exercise exclusive jurisdiction to pursue off-campus complaints.
  • Schools will be responsible for investigating sexual misconduct only to the extent that a  complaint has been filed or they have “actual knowledge” of the misconduct. Schools have been complaining that, up until now, they have been held liable for failure to investigate sexual assault claims they didn’t even know about.
  • Both parties (the accused and the accuser) would be entitled to all of the evidence gathered by the other side, regardless of whether the other side intends to actually use it.
  • Mediation between the two parties will continue to be an option, as it has been since 2017 (mediation was forbidden prior to 2017).
  • Both parties are allowed to question each other during disciplinary proceedings. This practice was formerly discouraged if not outright forbidden.

Regardless of whether these regulations end up going into effect as they are currently written, it remains a virtual certainty that the current administration will restore at least some of the protections for the accused that had been lost.

We Are Ready to Fight for You

At E. Stewart Jones Hacker Murphy, fighting for justice for the wrongfully accused is what we went to law school for. There is nothing more satisfying to us than to watch justice prevail due to our efforts, and we absolutely will not allow any of our clients to be bullied by the educational system.  

The following is a list of only some of the local area colleges and universities whose students we have or are ready to serve:

  • Rensselaer Polytechnic Institute (RPI)
  • Siena College
  • Skidmore College
  • College of Saint Rose
  • Sage Colleges
  • Russell Sage College
  • Union College
  • Albany Law School
  • State University of New York at Albany
  • State University of New York at Binghamton
  • State University of New York at Plattsburgh
  • State University of New York at Potsdam
  • State University of New York at Oneonta
  • Clarkson University
  • Colgate University
  • Columbia-Greene Community College
  • Cornell University
  • Bard College
  • Vassar College
  • Syracuse University
  • Hartwick College
  • Utica College
  • Hamilton College
  • New York Law School

Contact Us Today

If you have been accused of campus sexual harassment or sexual assault, it’s not a good idea to wait until a tribuna has already been scheduled before you seek legal help. Contact us online, or call one of our offices (in Albany, Saratoga, Troy, and Latham) to schedule a free case consultation so we can discuss your options.

When Character Evidence Can and Can’t be Used in a Federal Criminal Prosecution

character evidenceWhen is it OK to defend yourself against a federal criminal charge using evidence of your good character? When is it OK to use character evidence against your accuser? The Federal Rules of Evidence strictly limit the use of character evidence. There are exceptions, however, as well as loopholes that sneaky prosecutors can slip through.  

What Is “Character” Anyway?

Although there is no formal legal definition of “character,” in practice, courts have treated it as any pattern of behavior and is not limited to morally significant behavior – shyness or fastidiousness, for example. It is not the same as reputation, although it is related. Character is also not habit; character is thought to be deeper than habit.

Rule 404

Rule 404 of the Federal Rules of Evidence establishes a general prohibition against character evidence, subject to certain exceptions:

  • The defendant may introduce evidence of his own good character, even to the point of calling character witnesses.
  • The defendant may introduce evidence of the accuser’s bad character, subject to certain exceptions.
  • In a homicide case, if the defendant asserts that the victim was the aggressor in the encounter that provoked the homicide, the prosecutor may introduce character evidence (about the accuser’s character, not the defendant’s character) to rebut the defendant’s assertion.  

The Mercy Rule

The “mercy rule” allows the defendant to introduce evidence of his own good character, as stated above. It can easily operate as a trap. Once the defendant introduces evidence of his own good character, the prosecutor becomes entitled to rebut the defendant by introducing evidence of his bad character. For this reason, criminal defense attorneys are reluctant to invoke the mercy rule.

Types of Character Evidence

The defendant may call witnesses to establish good character in the form of:

  • His reputation in his community;
  • The witnesses’ personal opinion of his character; and
  • The witnesses’ recounting of specific acts performed by the defendant (that are within his personal knowledge).

The Prosecution’s Rebuttal during Cross-Examination

The prosecutor can do great damage to the defendant’s standing with the jury by using the defendant’s own character witnesses against him during cross-examination. For example:

Witness: “Paul is an honest person. I’ve never known him to steal anything from anybody.”

Prosecutor: “Would your opinion change if it were proven that the defendant was arrested for shoplifting in 2007 and again in 2013?”

At this point, it doesn’t matter if the witness doesn’t change his mind. The jury now knows of the two previous convictions and will likely hold it against the defendant. Note that the prosecutor could not ask the witness about the defendant’s previous conviction for disorderly conduct, since that is not a crime of dishonesty.

The Relevance Loophole (and Limitation)

One of the ways a prosecutor can slip in character evidence against the defendant, in the absence of a formal exception, is to establish its relevance to a matter other than the defendant’s character. A prosecutor might, for example, seek to introduce evidence of past crimes committed by the defendant as a way of establishing that his “M.O.” was similar to the crime at issue.

The relevance loophole is limited by the facts of the case. If the defendant is accused of embezzlement, the prosecutor cannot introduce evidence of the defendant’s violent past, even if the defendant calls character witnesses. This is because violence is not relevant to embezzlement. The prosecutor cannot attempt to prove that the defendant is a “generally bad person” – he must be specific.

Affirmative Defenses

Certain affirmative defenses can open the door for a prosecutor to introduce character evidence. For example, in an entrapment defense (where the defendant argues that the police encouraged him to commit the crime so they could arrest him for it) the prosecutor is entitled to prove, through past bad acts, that the defendant was already predisposed to commit the crime.  

Likewise, a defense of Not Guilty by Reason of Insanity invites the prosecutor to try to prove that the defendant is evil or degenerate rather than insane. Depending on the number of skeletons in the defendant’s closet, this could devastate the defendant’s standing in the eyes of the jury.

Character of the Accuser

The defendant is entitled to try to prove the bad character of the accuser in a manner relevant to the case. Except in certain homicide cases, however, this entitles the prosecutor to introduce both (i) evidence of the accuser’s good character in the same trait and (ii) evidence of the defendant’s bad character in the same trait.

If the defendant asserted that “It was the accuser who started the fight, not me” and then introduced evidence of the accusers violent tendencies, the prosecutor can respond by (i) introducing evidence of the accuser’s peaceful tendencies and (ii) introducing evidence of the defendant’s violent tendencies.

The Federal “Rape Shield” Rule

An exception, known as the “rape shield rule,” prevents the defendant from trying to prove the bad character of the defendant when the defendant is accused of sexual misconduct and the defense wishes to prove that the accuser was sexually promiscuous.

Several exceptions exist to this rule, however. Moreover, the rape shield rule would not prevent the defendant from trying to attack the accuser’s credibility on the witness stand by proving that the accuser is dishonest.

Witnesses

By swearing to tell “the truth, the whole truth, and anything but the truth,” every witness automatically places his credibility at issue, regardless of whether the witness is the accuser. For this reason, either side may try to prove that the witnesses’ testimony is not to be trusted, as long as the proof itself is relevant to credibility.

Don’t Let Passivity and Procrastination Determine Your Fate

A federal criminal prosecution is serious business. U.S. criminal law is based on an adversarial system, and that means the prosecutor is not your friend. Make no mistake about it, a criminal prosecution is a war, whether it takes place in open court or during plea bargaining. E. Stewart Jones Hacker Murphy can help you fight that war with every weapon in our legal arsenal.

If you have been arrested for or charged with a federal crime in Latham, NY, or if the police have questioned you, you need to speak with an experienced Latham criminal attorney right away. Contact us today for a free initial consultation by phone, at our Latham office on Airport Park Boulevard, or even in jail. Act quickly – you have no time to lose.

When You Should “Just Say No” to the Police – and When You Can’t

false imprisonment

The Latham, New York, criminal justice system, like the criminal justice systems elsewhere, is essentially adversarial. This means that if you have been charged with a crime or are being investigated for one, the police are not your friend. In fact, it might even be appropriate to go so far as to say that in criminal law, nice guys finish last.

Your most effective ally in a criminal investigation, other than your criminal defense lawyer, is your own understanding of your rights and your willingness to exercise them. Cooperating with the police is not your best option in every instance, even if you are innocent. Sometimes you should cooperate while other times it is best to “just say no.” The following is a brief discussion.

“You Have the Right to Remain Silent…”

The federal case, Miranda v. Arizona, established that the police are required to “read you your rights” once they have placed you in custody. You are in custody if a reasonable person under your circumstances would not feel free to leave. If the police have told you that you are free to leave (and they mean it), you are not in custody and they don’t have to read you your rights.

Your Miranda rights, of course, belong to you whether you are notified of them or not. They include:

  • The right to remain silent
  • The right to consult with a lawyer
  • The right to have a lawyer present while you are being questioned
  • The right to terminate police questioning at any time
  • The right to a government-appointed lawyer, free of charge, if you cannot afford a lawyer but request one anyway

The general rule is to refuse to answer police questions outside the presence of your lawyer, even if you are innocent of the crime (the police are full of tricks!). Remember, “…anything you say can and will be used against you in a court of law.” The government is forbidden from using your silence as evidence against you in court.

What happens if the police fail to read you your rights? This is not necessarily a “get out of jail free card.” All it means is that nothing you say can be used as evidence against you in court until you are advised of your rights. If the prosecutor has enough evidence to convict you without relying on your own statements, you could be convicted of a crime anyway.

Search and Seizure: Your Constitutional Rights

The Fourth Amendment protects you against “unreasonable searches and seizures.”  It also includes a warrant requirement for a search, which in turn requires “probable cause” that the search will yield evidence. Exceptions apply to the warrant requirement. But even where the requirement applies, the  police can still search if you give consent. Police can sometimes infer consent from your non-verbal actions.

The following are some of the exceptions to the warrant requirement for a search. These are occasions when the police can conduct a search without a warrant even if you do not consent to the search. Never consent to a search. If the police can search without a warrant, they will do so. But if they do so without your consent, you can always challenge the search later.

  • Search incident to a lawful arrest: If you are lawfully arrested, the police can search your person and your immediate surroundings without a warrant to locate weapons, evidence in danger of immediate destruction, and means of possible escape.
  • Plain view: Evidence in plain view can be seized without a warrant as long as the officer is where he has a right to be when he sees the evidence.
  • Stop and frisk: An officer can frisk you if he has “reasonable suspicion” that you are engaging in or are about to engage in criminal activity. Reasonable suspicion requires less evidence than probable cause does.
  • Automobile exception: The police can search a vehicle (even a boat) if they have probable cause that they will find evidence of a crime there.
  • Hot pursuit: The police can search for or enter private property to seek evidence when they are in hot pursuit of you and circumstances indicate that you might destroy evidence before they can obtain a warrant.
  • Exigent circumstances: The police can enter your property, or even break in, under emergency circumstances such as screaming indicating that a violent crime is in progress. At that point, the plain view doctrine can take over to allow them to seize evidence and you cannot object.

Refusing a Breathalyser Test

If you are pulled over in Latham on suspicion of DWI, you are technically entitled to refuse a breathalyser test in most cases, even if you are clearly intoxicated. We say “technically,” because even though, under most circumstances, an officer cannot force you to take the test, the consequences of refusing to do so are serious enough to make you think twice before refusing.

Refusing a breathalyser test (or other chemical tests such as a blood test) will result in a one-year suspension of your driver’s license and a $500 fine for the first offense. Penalties increase for subsequent offenses. Moreover, the prosecutor can use your refusal as evidence in a DWI trial, which means you could end up being convicted of DWI anyway.

A Top-Tier Albany Law Firm

  1. Stewart Jones Hacker Murphy has been named a Tier 1 Albany law firm every year since 2011 – and we don’t plan on allowing this winning streak to end any time soon. Moreover, our individual attorneys have been showered with honors such as:
  • Stellar rankings on AVVO, the preeminent attorney rating service
  • The coveted “AV Preeminent” ranking by the Martindale Hubbell Peer Reviews
  • Induction into the International Academy of Trial Lawyers
  • Listing among “America’s Top 100 Attorneys”

You Need an Ally on Your Side Immediately

If you have been arrested or charged with a criminal offense, if you are under criminal investigation, have been questioned by police, or if you anticipate any of the foregoing events, contact us today to schedule a free initial consultation by phone at our Latham office or even in jail. Time will not be on your side until we are.

Appellate Court Grants Class Certification in Favor of Suit-Kote Prevailing Wage Workers

Excellence in the Legal Profession Albany

On June 15, 2018 the Fourth Department Appellate Division granted class certification to a class of Suit-Kote prevailing wage workers.  The action was brought on behalf of Plaintiff Andrew G. Vandee and members of a class consisting of all non-exempt employees who performed work for defendant Suit-Kote on Public Works Projects from May 2007 to May 2013 and who were deprived fringe benefits required to be paid under the law.  The estimated size of the class is 700 members and the estimated value of the claim exceeds $10 million dollars.  Suit-Kote is one of the largest paving companies in the Northeast.  Suit-Kote provides services to several New York State agencies, counties and municipalities throughout New York State.

The class is represented by Ryan M. Finn, Esq. of the law firm E. Stewart Jones Hacker Murphy, LLP (www.joneshacker.com).  Attorney Finn stated:  “The unanimous Decision of the Appellate Court paves the way for the hard-working employees of Suit-Kote to finally be paid the fringe benefits that have been wrongfully withheld for a number of years.  While the process of litigation can be long and difficult, we firmly believe in this case and look forward to obtaining justice for this deserving class of employees.”

For more information about the case please email Ryan Finn at [email protected]

New York State’s Dram Shop Laws: Third Party Liability for Alcohol-Related Injuries

Alcohol-Related-Injuries

Most U.S. states have enacted a dram shop law on one kind or another, and New York is no exception. If you were injured through the wrongful behavior of another person, you are entitled to assert a personal injury claim against that person. In many cases, voluntary intoxication will provide all the legal ammunition you need to press a strong claim for damages.

A problem arises, however, when the perpetrator of the accident is too poor to pay damages and he is either uninsured or underinsured. In this situation, New York’s dram shop laws might allow you to file a claim against an alcohol vendor who provided the alcohol to the defendant.

New York’s dram shop laws appear in New York General Obligations Law Section 1100 and Section 1101, and in Alcohol Beverage Control Law 65.

Elements of a Dram Shop Claim

To win damages against a third party for injury or death caused by the intoxication of another person, you must prove:

  • you were injured;
  • the person who injured you was intoxicated at the time;
  • an alcohol vendor sold alcohol to the intoxicated person;
  • at the time of the sale, the intoxicated person was (i) “actually or apparently” under 21, (ii) visibly intoxicated or (iii) known as a habitual drunkard to the alcohol provider; and
  • the vendor’s sale of alcohol to the intoxicated person either caused or contributed to the intoxication that led to the accident that injured you.

Scope of the Law

The scope of the New York dram shop law is not limited to DUI accidents. You can sue an intoxicated person who fell into you and knocked you down a flight of stairs, for example, or even a drunk who intentionally assaulted you due to his intoxication. The law’s usefulness in the event of an intentional assault is noteworthy, because many insurance policies do not cover such acts.

An intoxicated person cannot sue the alcohol vendor for his own injuries, And if the intoxicated person is killed in the accident, survivors cannot file  wrongful death lawsuit against the alcohol vendor. The law is also subject to limitations on the ability of “drinking buddies” to file claims on this basis.

Causation

Two forms of causation must be proven in a dram shop law claim:

  • The patron’s intoxication must have been substantially caused by the vendor or social host’s provision of alcohol to the patron.
  • The patron must have been intoxicated at the time of the accident, and his intoxication must have been a substantial cause of the accident.

Property Damage

New York law also allows victims of an accident caused by a drunken patron to recover against the alcohol vendor for property damage caused by the accident.

Wrongful Death

If the victim of the accident dies as a result of the accident, the personal representative of the deceased victim’s probate estate can file a wrongful death lawsuit against both the patron and the vendor who provided the alcohol. Damage awards are similar to the amount that the victim could have received if he had lived after the accident and filed a personal injury lawsuit.

Exemplary Damages

Exemplary damages are extra damages for outrageous behavior by the defendant that are awarded in addition to ordinary compensatory damages. Although exemplary damages can be awarded against an alcohol vendor who serves a visibly intoxicated patron who later causes an injury accident, they are not allowed for serving a minor who was not visibly intoxicated.

Liability of Social Hosts and Others

New York law also holds social hosts, such as party hosts, liable for providing alcohol to guests under the age of 21. This also applies for assisting someone under the age of 21 in obtaining alcohol (buying it for him at a liquor store, for example), if the provider knew or had reasonable cause to believe that the person seeking alcohol was under 21.

Ambiguity: “Knowledge or Reasonable Cause to Believe”

The term “reasonable cause to believe” suggests that a defendant can be liable for providing alcohol to a minor even if he didn’t know that the minor was under 21. But what is “reasonable cause”? Would a defendant be justified in providing alcohol to a minor who presented a fake ID? What if the ID was an obvious fake?

Ambiguity: “Visibly Intoxicated”

The term “visibly intoxicated” is another ambiguous term that could determine whether or not a defendant is held liable (or whether he settles privately out of fear of losing in court). How obvious does a patron’s intoxication have to be to impose an obligation not to serve him? Note that an alcohol vendor may not sell alcohol to a minor – even if he is not intoxicated.

Ambiguity: “Habitual Drunkard”

“Habitual drunkard” is yet another ambiguous term that can complicate a dram shop claim. If the patron was not intoxicated but he was a “regular” at the establishment, does that fact alone qualify him as a “habitual drunkard”? How often does the patron have to become intoxicated before the vendor becomes responsible for knowing that the patron is a habitual drunkard?

How Legal Ambiguities Affect a Dram Shop Claim

An ambiguity in the text of a law invites lawyers to fight over its interpretation in light of the facts of that particular case. Often, it is the side with the better lawyer that wins the debate, which is all the more reason to choose your legal counsel with care.

Our Reputation Speaks Volumes

At E. Stewart Jones Hacker Murphy, our reputation speaks louder than we do. The U.S. News has listed us as a top-tier Albany law firm each year since 2011. Additionally, several of our individual attorneys have been awarded the following honors, among others:

  • Top rankings on the prominent legal ratings service AVVO
  • “AV Preeminent” rating by the Martindale Hubbell Peer Reviews
  • Membership in the International Academy of Trial Lawyers (limited to 500 lawyers nationwide)
  • Membership in America’s Top 100 Attorneys

Act Promptly

If you have been injured in an alcohol-related incident in Troy or if your loved one died in such an accident, you may be entitled to substantial compensation even without the involvement of a third-party vendor or socal host. Contact us today to schedule a free initial consultation over the phone, at our office in Troy, at one of our other offices, or at some other location.

New York Authorities Struggle to Deal with an Avalanche of New School Shooting Threats

Since the February 14, 2018 shootings at the Marjory Stoneman Douglas High School in Florida, threats of violence against schools have been on the rise in the Capital Region and throughout upstate New York. While these threats have been found to be “copycat” bids for attention that did not represent a serious threat, some threats are taken seriously by the police.

While most threats are made by students at the schools they target, some are made by outsiders. Anyone found to have made such a threat will typically be arrested for terroristic threatening – a felony in New York. More often than not, however, a juvenile will ultimately be convicted of a misdemeanor such as falsely reporting an incident.

Recent Incidents

Below are only a few examples of the threats made against upstate New York middle schools and high schools since the Parkland shooting:

  • On February 18, 2018, a 21-year old man was charged with making a terroristic threat against Franklin Central School.
  • On February 21, 2018, a 14-year-old student texted a photo of a rifle to a classmate and threatened to shoot up St. Regis Falls Central School.
  • On the weekend of February 24-25, 2018, a threat was made on Snapchat against Gloversville Middle School.
  • On February 26, 2018, a 14-year-old was arrested for threatening to shoot several students at Corinth Central School, including his ex-girlfriend.
  • On March 7, 2018, four juvenile were arrested for making a series of threats against  Jarvis Middle School.
  • On March 21, 2018, a 14-year-old student was arrested for making threats against Bethlehem Central Middle School.
  • On March 21, 2018, 13-year-old student threatened to shoot up Galway Central School  in two social media posts.

All told, more than 40 reported or rumoured threats of violence have been directed against schools in upstate New York in only the first few weeks after the Parkland shooting.

What the Law Says

New York state’s current terroristic threatening statute provides as follows:

  1. A person is guilty of making a terroristic threat when with intent
    to intimidate or coerce a civilian population, influence the policy of a
    unit of government by intimidation or coercion, or affect the conduct of
    a unit of government by murder, assassination or kidnapping, he or she
    threatens to commit or cause to be committed a specified offense and
    thereby causes a reasonable expectation or fear of the imminent
    commission of such offense.
    2. It shall be no defense to a prosecution pursuant to this section
    that the defendant did not have the intent or capability of committing
    the specified offense or that the threat was not made to a person who
    was a subject thereof.

Despite the statute’s harsh language, officials continue to complain that many threats simply do not meet the threshold for a successful prosecution, thereby paving the way for a reduction in the seriousness of the charge or an outright acquittal.

Purpose of the Law

The purpose of the terroristic threatening law is not limited to preventing the threats from actually being carried out. It is also to protect the targets of those threats, and those responsible for protecting them, from being subjected to emotional distress and from expending the time and energy necessary to guard against the threat (shutting down school for the day, for example).

Penalties

An adult defendant faces two to seven years in prison if convicted of terroristic threatening. The juvenile criminal justice system is more flexible – it takes into account many factors including the defendant’s age, maturity, and mental health. The maximum penalty is incarceration in a juvenile facility until age 18. In some cases, however, older juveniles can be tried as adults.

Defenses

A variety of defenses might be employed, depending on the circumstances. Some of the most common include:

  • Lack of criminal intent – To be convicted of terroristic threatening, criminal intent must be demonstrated. Excluding political motives, which are normally not relevant to threats against schools, the motivation must be to “intimidate or coerce.” It is up to the prosecutor to prove this. To win an acquittal, the defense needs only to raise reasonable doubt as to whether the defendant actually possessed this intent.
  • The threat was not reasonable – This means that a “reasonable person” would not conclude that the threat is credible. For example, a diminutive high school cheerleader threatening to murder the entire football team with her bare hands might fall into this category.
  • No threat was actually made – Reports of the threat might be based on rumor or hearsay, for example. Another example might be a cryptic or poetic statement made on social media that was misinterpreted as a threat. Of course, the latter circumstances could also justify a defense of “no criminal intent.”

Current Stopgap Measures

Due to the spate of recent school shootings, the political climate in New York is definitely moving against lenient treatment of people who threaten to shoot up schools, even if they are juveniles. There are increasing calls to beef up the terroristic threatening law, or even pass a new law to ensure that convicted defendants are actually convicted of the felonies they are charged with.

In the meantime, students that have made threats are typically subjected to a mental health examination and placed on probation. Depending on the results of the mental health screening, they may be placed on medication, sent to counseling, or even be involuntarily committed to an in-patient mental health facility.

We Can Help

The New York criminal justice system is a maze for the uninitiated, and it is brutally competitive. Although the juvenile criminal justice system is fundamentally different from the adult criminal justice system, it can be fearfully difficult to deal with as well. Fear not – at E. Stewart Jones Hacker Murphy, we’ve got your back.

Our offices are located in Albany, Troy, Latham, and Saratoga, and we serve clients throughout the Capital Region, upstate New York, and beyond. If your child has been charged with a crime or if you anticipate such a charge, call us at (518) 274-5820 (Albany) or contact us online to schedule a free case consultation.

Deadline to Challenge the Assessment On Your Property – Tues 5/22/18

The deadline to challenge the assessment on your property is Tuesday, May 22, 2018.  In order to preserve your rights to reduce you real property taxes, you must file a grievance with the local Assessor or that municipality’s Board of Assessment Review on or before that date.  The attorneys at E. Stewart Jones Hacker Murphy LLP have worked on assessments for many years and will be able to help you in your pursuit of real property tax relief.

Contact David R. Murphy at (518) 213-0117, [email protected], or Patrick L. Seely, Jr. at (518) 213-0118, [email protected], to discuss your assessment.