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Call(518) 274-5820

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Troy, NY

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Call(518) 783-3843

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7 Airport Park Boulevard
Latham, NY

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Blog

Important Legislative Update

legislative updateThis morning, Governor Cuomo signed the Child Victims Act into law. The legislation ensures that abusers can be held criminally and civilly accountable by extending the time in which survivors of childhood sexual abuse can seek justice. Under the old law, child sexual abuse offenses could not be prosecuted more than five years after their occurrence and civil lawsuits for this conduct had to be brought within three years of the victim’s 18th birthday.

The new legislation:

  1. Increases the amount of time during which perpetrators of these crimes may be held criminally accountable;
  2. Allows victims of these crimes to commence a civil lawsuit at any time before they reach 55 years of age;
  3. Provides victims whose claims have been time-barred a new opportunity for their day in court by opening a one-year window for them to commence their action;
  4. Eliminates the need to file a notice of claim for sexual offenses committed against a minor;
  5. Requires judicial training with respect to crimes involving the sexual abuse of minors;
  6. Authorizes the Office of Court Administration to promulgate rules and regulations for the timely adjudication of revived actions.

The revival period for otherwise time-barred claims commences six months after today’s enactment and lasts for one year.

We are grateful to the sponsors, Assemblywoman Rosenthal and Senator Hoylman, the Legislative Leaders, Speaker Heastie and Majority Leader Stewart-Cousins, and Governor Cuomo for their leadership on this issue and commend them for taking a strong stand in combatting child sexual abuse.

A Second Chance for Nonviolent Drug Offenders: Federal Criminal Justice Reform Bill Signed into Law by President Trump

DWI legal defenses

Something akin to a miracle occurred recently: Congress passed significant legislation with broad bipartisan support. The awkwardly-named “Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person Act,” or FIRST STEP Act (the “Act”), was signed by President Trump on December 21, 2018.

The new legislation is designed to improve federal prison conditions, allow for the early release of certain inmates, and eliminate some of the more severe consequences of federal mandatory minimum sentencing. It applies to the federal prison system, not the state prison system, where most of the nation’s inmates are housed.

The reasons for the broad bipartisan support that this law enjoyed included prison overcrowding, concerns about the mass incarceration of nonviolent drug offenders, and the shockingly high rate at which released prisoners re-offend (known as the recidivism rate). The following is a description of some of the primary features of the Act.

Reduction of “Mandatory Minimum” Sentences for Non-Violent Drug Felonies

Mandatory minimum sentencing for drug offenders, first introduced by the Anti-Drug Abuse Act of 1986 in response to crack cocaine epidemic, limits the sentencing discretion of trial judges once a defendant has been found guilty of a crime (typically a drug crime) for which mandatory minimum sentencing applies. This system has been widely criticized for:

  • Draconian sentencing, including life in prison in some instances, for non-violent drug crimes, regardless of mitigating circumstances;
  • The huge disparity in sentencing between those caught with crack cocaine and those caught with powder cocaine;
  • Racial disparities in sentencing, particularly to the disadvantage of African-Americans; and
  • Mass incarceration and prison overcrowding as prisons become packed with drug offenders.

The FIRST STEP Act raises the bar for imposing mandatory minimum sentences for repeat offenders. To qualify as a prior offense, the offender must have actually been sentenced to 12 or more months of incarceration instead of simply having been convicted of an offense for which 12 or more months incarceration could have been imposed. It also institutes a “lookback period” of 15 years in the past, beyond which, prior offenses will not count against the defendant.

The FIRST STEP Act reduces these mandatory minimums in some instances. It reduces the mandatory minimum sentence of third-time offenders from life imprisonment to 25 years, for example, and it reduces the mandatory minimum sentence for second-time offenders from 20 years to 15 years.

It’s not all sunshine and roses for drug offenders, however. The law also adds violent offenses to the types of offenses that will be considered prior offenses, so that drug offenders with a history of violence will not be able to easily evade mandatory minimum sentences. Significantly, most provisions of the Act are not retroactive – most people who have already been sentenced under the old law will not be able to take advantage of the Act’s provisions.

Broadening of the Mandatory Minimum “Safety Valve”

The “Safety Valve” was introduced at the federal level in 1994 to reduce the number of drug offenders subject to mandatory minimum sentencing. The Act increases the number of “criminal history points” that an offender can accumulate without triggering mandatory minimum sentencing. Criminal history points are assigned to a defendant based on previous convictions, and they increase with the length of the sentence imposed, particularly if violence was involved.

Miscellaneous Provisions

The Act contains many provisions designed to relax overly harsh prison conditions that social scientists point to as one of the main causes of recidivism.

  • Placement of prisoners near their families to allow for more convenient visitation.
  • Expansion of the Elderly Home Detention Program, which provides an alternative to prison life for elderly prisoners.
  • Relaxation of the standards for “compassionate release” (for prisoners diagnosed with terminal illnesses, for example).
  • Mandatory de-escalation training for prison guards to reduce the incidence of violent altercations.
  • The introduction of medication-assisted treatment for opioid abuse (methadone, for example).
  • Restrictions on the imposition of juvenile solitary confinement.
  • Restrictions on the use of restraints on pregnant female inmates.
  • The establishment of recidivism risk programs for prisoners, with incentives provided for successful participation that include more time spent in home confinement, halfway houses, or supervised release rather than in prison.
  • A massive increase in the type of data that the Bureau of Prisons is required to provide to the National Prisoner Statistics Program, which could help provide a rational basis for further criminal justice reform.

A Look Ahead

The First Step Act is intended the way it is named: as a first step, not an ultimate solution. Although crime has fallen in recent decades, it has come at a high price. About 2.3 million people are incarcerated in the United States – about the same number of people that live in Houston and about 22 percent of the world’s total prison population. The United States “land of the free” boasts a prison population nearly twice as large as China, the world’s second most prison-happy nation.

An appropriate “Second Step Act” should address recidivism. A convicted drug dealer, for example, unable to secure employment after being released from prison, is likely to return to selling drugs simply to make ends meet. It might be appropriate, then, to allow non-violent drug offenders an easier way to expunge their criminal records so that they can secure employment and leave their old “profession” behind.

State prisoners are at least as overcrowded as federal prisons for many of the same reasons. Hopefully, state governments will follow their federal counterparts and enact the same or perhaps even more far-reaching criminal justice reforms (some states already are). Ultimately, only time will tell.

Let Us Help You Fight Back

Although a criminal prosecution works something like a war, it is not a war that you will necessarily lose if you know how to fight back. And at E. Stewart Jones Hacker Murphy, we know how to fight it. If you have been charged with a crime, call our Albany office at (518) 730-7270 or contact us online to schedule a free initial consultation. We also maintain offices in Troy, Saratoga and Latham, and we can even visit you in jail.

E. Stewart Jones Hacker Murphy LLP recognized as a 2019 “Best Law Firm” by U.S. News & World Report

2019 Best Lawyers US News & World ReportThe Capital District Law Firm of E. Stewart Jones Hacker Murphy LLP was recognized as a “Best Law Firm” by U.S. News & World Report for 2019.

Seven of the attorneys at E. Stewart Jones Hacker Murphy LLP have been recognized by “Best Lawyers in America” for 2019 in 8 different practice areas. Additionally, U.S. News and World Report has recognized the firm as of the best law firms in the country, ranking “Tier 1” in seven of its major practice areas after a rigorous evaluation process.

the JonesHacker teamFor the 2019 Edition of “Best Lawyers in America”, Attorney’s E. Stewart Jones, Jr., James E. Hacker, John F. Harwick, Patrick L. Seely,Jr., Meghan R. Keenholts, Ryan M. Finn, and Michael W. Kessler, have been recognized for providing exceptional services for the people of Troy, Albany, Latham and Saratoga Springs, New York, in a wide variety of legal practice areas, including:

Bet-the-Company Litigation, Commercial Litigation, Criminal Defense: General Practice, Criminal Defense: White-Collar, DUI/DWI Defense, Legal Malpractice Law-Plaintiffs, Litigation-Insurance, Litigation-Real Estate, Mass Tort Litigation / Class Actions-Plaintiffs, Medical Malpractice Law-Plaintiffs, Personal Litigation-Plaintiffs, Product Liability Litigation-Plaintiffs.

If you are in need of an attorney for a personal injury, criminal defense or litigation case, contact E. Stewart Jones Hacker Murphy LLP at www.joneshacker.com 518-274-5820.

Dirty Tricks the Police Use Against Criminal Suspects

Troy, NY, Criminal Defense Law Firm

If the police suspect you of committing a crime and seek you question you, remember that you have a constitutional right to remain silent. That means that if you tell the police you don’t want to talk to them without a lawyer present, they are obligated to stop questioning you until your lawyer arrives.

You should definitely invoke your right to silence, because the police are full of dirty tricks that they use to elicit damaging answers from you, along with other questionable tactics that they can use against you even if you do refuse to talk to them. Please see the following examples.

Interrogation Techniques

“Your accomplice already told us everything – so you might as well just ‘fess up’ and make it easy on yourself.”

Don’t fall for it. He may have, or he may not have. If the police manage to secure a confession from you this way, it can be used against you even if it was based on a lie. Although you have a constitutional right not to be subject to compelled self-incrimination, most forms of “confession by trickery” are not considered “compelled.”

“We found your fingerprints at the scene of the crime”

Maybe they did, and maybe they didn’t. The same tactic is at work here. If they can get you to confess (even if you are innocent and you are confessing in the hope of a lenient plea bargain), your confession can be used as powerful evidence against you. Recanting your confession later will only make you look dishonest.

“Would you like a glass of water?”

Drinking a glass of water will leave a small sample of your saliva on the container, and saliva contains your DNA. If the police don’t have enough evidence to compel you to submit to a DNA test, don’t give them a gift by leaving your DNA on a drink container.

“The polygraph test results prove you’re lying.”

It’s easy for the police to rig a fake polygraph test that they can then interpret to “prove” you are lying. In any case, it is very difficult to admit a polygraph test into evidence in a criminal prosecution – even fairly administered tests are notoriously unreliable.

“We have eyewitnesses who saw you at the scene of the crime.”

Demand that the police produce these “eyewitnesses” – if they exist at all. If they are real eyewitnesses, they should be able to identify you in a lineup.

“Things will go much easier on you if you just confess.”

Not quite – on the contrary, things will go much easier on the prosecution if you confess. This is the police, not your priest. If they had enough evidence to convict you without a confession, they probably wouldn’t be asking for it. Confession may be good for the soul, but confessing to the police is likely to result in incarceration, not forgiveness.

Implying that refusing to answer their questions amounts to “obstruction of justice”

Destroying evidence is obstruction of justice. Coaching a witness on how to lie under oath is also obstruction of justice. Refusing to answer the police’s questions is not obstruction of justice – in fact, it’s your constitutional right. If the police begin to question you, tell them you cannot answer any questions unless your lawyer is present. Technically, they cannot use any of your answers against you anyway unless they have “read you your rights” (but don’t count on that).

The good cop/bad cop routine

Most people are familiar with this one. The job of the “bad cop” is to intimidate you, while the job of the “good cop” is to soothe you into confessing or giving consent to a search. This consent is in order to placate the “bad cop” who might just lose control if you don’t follow the good cop’s advice. This is when you really need legal representation. And believe us, we know exactly how to play the “good lawyer/bad lawyer” routine with the prosecution.

“This is strictly off the record” – but your conversation is being secretly recorded anyway

“He told me this conversation was off the record” is no defense against a prosecution based on a confession – unless the confession was made to your lawyer. In that case, it absolutely cannot be used against you as long as you told it to your lawyer with the expectation of confidentiality, which covers almost any lawyer/client communication.

Other Sneaky Tactics

Bugging your jail cell and recording your conversation with your cellmate

The police don’t need a warrant to record a conversation between two people as long as one of them consents to being recorded. If you find yourself in jail with a cellmate, don’t talk about your crime. Assume that everything you say is being recorded.

Digging through your garbage

The Fourth Amendment protects you against unreasonable search and seizure. This means that a warrant is required, supported by probable cause, to invade your privacy by, for example, searching your bedroom. Garbage, however, is considered abandoned property, and people are not thought to have a “reasonable expectation of privacy” in their garbage. Be careful what you throw away if some of your garbage might make you look guilty.

Searching your property using a police dog who “reacts” in very subtle ways

The reaction of a police dog trained to sniff for drugs can be used as probable cause to, for example, open the trunk of your car. But exactly what constitutes a “reaction”? Barking and snarling would probably do. But police can train dogs to “react” in ways so subtle that you might not even notice it. What if the police simply want to conduct a warrantless search of your car trunk? They could bring a police dog and claim that he “reacted” (when in fact he didn’t) as a pretext for searching your trunk.

Don’t Take Chances with Your Future

If you have been charged with a crime, your life could be turned upside down. And without proper legal representation, you could be convicted or railroaded into a plea bargain – even if you are innocent. Missing a critical deadline, for example, could put you in a very disadvantageous position. You need someone in your corner, right now.

A criminal prosecution is a war, and at E. Stewart Jones Hacker Murphy, we fight to win. If you have been charged with a crime or if you are being investigated for one,contact us today to schedule a free initial consultation by phone, at our office in Troy, or even in jail.

E. Stewart Jones Hacker Murphy, LLP Named Top Rated Upstate Litigators

E. Stewart Jones Hacker Murphy, LLP, founded in 1898, is one of Upstate NY’s oldest and most respected law firms focusing on personal injury, medical malpractice, criminal defense, commercial litigation and eminent domain.

The firm’s senior partner, E. Stewart Jones, has consistently ranked as the number one attorney in the Upstate NY “Super Lawyers” directory.

Other recognition includes:

  • AV Rating by Martindale-Hubbell
  • “Tier One” Ranking by U.S. News & World Report
  • American College of Trial Lawyers
  • Inner Circle of Advocates
  • Multi-million Dollar Advocates Forum
Black Ice, Slip and Fall Claims, and Your Right to Compensation

You have no doubt heard the ironic expression “pure as New York snow,” which conjures up the mental image of ice blackened with soot. Well that’s not what “black ice” is. In fact, black ice is clear as a mountain stream. It looks black because, ominously, it covers blacktop. It is clear because you see right through it to the blacktop below – and that is what makes it dangerous. The term also applies to clear ice that covers sidewalks,  

When and Where You Are Most Likely to Encounter Black Ice

Black ice tends to accumulate in shaded areas when the temperature dips below freezing. Watch for it below trees, tunnels, bridges, and overpasses. The greatest danger occurs when the temperature dips below freezing overnight, then rises to marginally above the freezing point during daylight hours  

This weather pattern (where the temperature hovers around freezing, dipping above and below it, depending whether or not the area is sunlit or shaded) can leave streets and sidewalks free of ice in sunlit areas even as black ice lingers in the shade. The result is a high rate of accidents as pedestrians and motorists get caught by surprise. Be aware of this phenomenon and watch for it.

The Legal Responsibilities of a Property Owner under Premises Liability Law

The owner or occupier of real estate is legally responsible for making sure that his premises are safe for guests by conducting a reasonable inspection of the property for hazards (including black ice) and either repairing or warning of any hazards. This principle applies to private homeowners, businesses open to the public and even the government. Some cities have laws requiring property owners to keep the sidewalks in front of their property free of snow and ice.

Damages

Three general types of damages are available under New York personal injury law (anywhere in the state):

  • Economic damages: Medical bills, lost wages, etc.
  • Non-economic damages: Pain and suffering and other psychological trauma
  • Punitive damages: Awarded only when the defendant’s conduct was outrageous or shocking to the conscience

These three types of damages are not alternatives – they are cumulative.

Workers’ Compensation

If you are seeking damages against your employer for a work-related slip and fall accident, your claim will probably be handled under the New York workers’ compensation system. There is good news and bad news here:

  • The good news is that you can win without proving that your employer was at fault for the accident.
  • The bad news is that you will not be able to collect non-economic damages such as pain and suffering or punitive damages.

Potential Defense: Comparative Fault

Under New York’s comparative fault rule, you are only entitled to damages to the extent that the accident was not your fault. Suppose, for example, that you slip on black ice in a grocery store parking lot that should have been kept free of ice, but you were intoxicated at the time of the accident.

The court might decide, for example, that you were 60 percent at fault and the grocery store was 40 percent at fault. In that case you would be eligible to receive only 40 percent of your damages. Theoretically, you could still receive one percent of your damages even if the accident was 99 percent your fault.

Potential Defense: Statute of Limitations

In New York, the statute of limitations deadline for filing a lawsuit (including a slip and fall lawsuit) is:

  • three years from the date of the accident for a personal injury lawsuit; or
  • two years after the victim’s date of death for a wrongful death lawsuit.

There are limited exceptions to these deadlines. In any case, it is best to get started on your claim well before these deadlines loom.

Liability of Employers

In most cases, insurance will be available to pay your claim (if you slip on black ice in someone’s driveway, for example, you can sue the owner and rely on his homeowner’s insurance policy to pay your claim). Suppose, however, that you were injured when a teenage employee failed to properly remove the ice from the parking lot of a drug store?

It is unlikely that the teenager will carry insurance to pay your claim, or that he will be able to pay the claim out of his own pocket. Are you out of luck? Not likely. You can probably file a claim against the drug store for the negligence of the teenager. Because, in most cases, an employer is responsible for the negligence of its employees.   

I slipped on ice and broke my hip in the parking lot of my fitness gym. My membership contract contains an arbitration clause. How will this affect my claim?

Many consumer contracts contain an arbitration clause in which a private judge decides on your claim. Arbitration simplifies the rules of evidence and procedure, and it is usually a lot faster than courtroom litigation. The biggest disadvantage of arbitration is that, in most cases, you cannot appeal an adverse decision.

Although it is possible, in some cases, to have an arbitration clause invalidated or to appeal an adverse decision, in most cases, you are stuck with arbitration. That is not necessarily a problem, because arbitration tribunals are typically fair. And just because you signed an arbitration clause doesn’t mean you can’t still try to negotiate a private settlement of your claim. You can bring a lawyer with you and we can help you negotiate or, if necessary, arbitrate.

At E. Stewart Jones Hacker Murphy, we fight to win. Our record of victory at trial is so successful that most defendants don’t dare risk a trial – which is precisely why most of our personal injury clients receive out-of-court settlements. If you have been injured in a slip and fall accident, contact us online or call one of our offices in Troy, Albany, Saratoga or Latham. We charge no upfront fees, and you will owe us nothing, ever, until and unless we win your case.

GEICO Faces Deceptive Trade Practices Over Its Use of Biased Medical Opinions

In a 5-0 decision issued on December 14, 2017, the New York State Appellate Division, Third Department, re-instated claims against GEICO Insurance Company for deceptive business practices related to its use of so-called “independent” medical doctors.

The precedent setting case of Brown v. Government Employees Insurance Company (available at http://decisions.courts.state.ny.us/ad3/Decisions/2017/524696.pdf ) now makes clear that insurance companies cannot simply deny claims based upon biased medical reports.  The case alleges that GEICO’s “independent” medical examiners have a strong financial motive to systematically issue reports that deny benefits whenever an argument can be made that the injuries are pre-existing or degenerative in nature.  It is further alleged that GEICO hires only experts who will go along with its scheme to defraud applicants out of benefits. It is alleged that the “independent” experts have a financial incentive to give GEICO what it wants: medical opinions that support denial of benefits.

Ryan M. Finn, a Partner with E. Stewart Jones Hacker Murphy, LLP (https://joneshacker.com/), represents Brown in the action, and stated as follows “this Decision should be a wake-up call for the insurance industry.  Attorneys representing injured victims have been referring to these exams as defense medical exams for a long time and for good reason:  there is nothing independent about the process and many of these doctors make millions of dollars issuing reports to deny lost wages and medical expenses to injured victims who most need the help.”  For more information please contact Ryan Finn, Esq.  at rfinn@joneshacker.com or 518-274-5820.