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Bail Reform in New York State

Beginning in 2020, New York will allow most criminal defendants charged with misdemeanors and non-violent felonies to remain free until their trial date without posting bail. The Bail Elimination Act of the New York Criminal Procedure Law takes effect in January 2020, and it will operate as a major reform that affects not only the defendants who will be released without posting bail, but also defendants for whom bail will still be required.

Every single day, over 12,000 people languish in New York jails without having (yet) been convicted of the offense for which they are being charged. Imagine the following scenario: A suspect is arrested and charged with a crime, and bail is set at $50,000. Since the defendant is too poor to make bail, he remains in jail until trial. At trial, the jury acquits after 20 minutes of deliberation – after the defendant has spent several weeks in jail for a crime he didn’t commit.  

It is this scenario that New York’s bail reforms are designed to avoid. The law is highly controversial, with proponents touting its enlightened approach to criminal justice and jail overcrowding, while critics predict disastrous consequences. 

How Bail Works

Under the U.S. Constitution, a defendant is presumed innocent until proven guilty. But if a defendant is presumed innocent, how can incarcerating that person in jail pending trial be justified? The traditional justification is that, since it is possible that the defendant will miss his trial date out of fear of prosecution, the defendant needs to be detained to ensure his presence at trial.

Under most circumstances, an alternative to detention until trial is bail – the defendant deposits a certain amount of money with the court, which he loses if he fails to show up for his trial (regardless of whether he is ever convicted). If the defendant cannot post cash bail, he can seek the assistance of a bail bondsman who might use the defendant’s property as collateral or seek the assistance of the defendant’s friends or family. Some people cannot afford bail, however.

The Arraignment

An arraignment is a court proceeding in which bail is set for the defendant. Under most circumstances, the arraignment occurs within 24 hours after the defendant’s arrest. This means that, even if he ends up paying bail, he may have already spent the last 24 hours in jail. Under certain circumstances, a defendant may be released prior to his arraignment and the arraignment may be delayed beyond 24 hours after the arrest.

Bail-Free Offenses

As of January 1, 2019, people charged with the following offenses must be released from custody with no bail requirement: 

* Third degree assault

* Bribery

* Coercion

* Criminal possession of a weapon on school grounds

* Criminal possession of a firearm

* Criminal sale of a firearm to a minor

* Second and third degree burglary

* Criminally negligent homicide

* Aggravated vehicular homicide

* Second degree robbery

* Third degree robbery

* Second degree manslaughter

* Aggravated vehicular assault

* Promoting an obscene sexual performance by a child

* Resisting arrest

* Hindering prosecution

* Jury tampering

* Money laundering

According to Critics…

According to estimates, New York’s pretrial jail population will shrink by about 40 percent once the new law comes into force. Critics fear that:

  • Witnesses will be so intimidated by the possibility of retaliation by a non-incarcerated defendants that they will refuse to cooperate with the prosecution, making it impossible to successfully prosecute many guilty defendants.
  • Many crimes will go unreported, because witnesses do not wish to be pressured to cooperate with the prosecution while the defendant is still on the streets.
  • Defendants will simply refuse to show up at trial.
  • Defendants will commit additional crimes while awaiting trial. This concern is particularly acute in the case of someone charged with, for example, vehicular manslaughter (because many such defendants are alcoholics who will inevitably continue driving while intoxicated) and drug dealing (because defendants are likely to return to their former “vocation,” if only to earn enough money to hire a lawyer).
  • The new reforms will increase the proportion of law enforcement resources that must be devoted to tracking people down who skip their court dates.
  • Prosecutors will charge people with crimes that are more serious than the crimes that the prosecutor believes they have committed in order to allow them to be subject to bail requirements.    
  • Courts will dilute the effect of bail reform by holding more defendants under “remand” (detention without bail) where the law allows this.
  • The deterrence effect of the criminal law will be reduced, since the only immediate consequence faced by many defendants will be the functional equivalent of a traffic ticket, followed by ample opportunity to flee the jurisdiction.

By contrast, proponents of bail reform point out that:

  • Bail reform will make overcrowded jails less likely.
  • Incarcerating fewer people will save the state a lot of money.
  • Defendants will be able to continue working and supporting their families prior to trial, protecting many innocent family members of some of the harsher aspects of the justice system.
  • Defendants (especially those who are not guilty, or who are guilty of only minor crimes) will be less likely to lose their jobs and/or their apartments. 
  • Low-income defendants will be treated more equally as high-income defendants.
  • The new system is simply fairer than the current system, since criminal defendants are presumed innocent.

How the Law Works

The following are some of the main features of New York’s bail reform law:

Bail-Free Offenses by Type of Crime

  • Bail will no longer be required in misdemeanor cases, except for sex offenses and violations of a domestic violence protection order.
  • Bail will no longer be required for non-violent felony charges, with exceptions for certain charges such as witness intimidation, conspiracy to murder, and sex offenses.
  • Violent felonies will still be subject to bail requirements, except for a very limited number of charges involving robbery and burglary.

When Bail Is Permitted

  • Even when bail is permitted, the judge must consider the defendant’s ability to pay when determining the amount.
  • A judge has three choices when setting bail: (i) secured bail, in which the defendant pays 100 percent up front, (ii) partially secured bail, in which the defendant pays 10 percent up front and forfeits this amount plus the other 90 percent if he fails to appear in court, and (iii) unsecured bail, in which the defendant pays nothing up front but forfeits all of it if he fails to appear in court. Until now, the latter two forms of bail have been rare. However, the new law encourages judges to use them more often.

Restricted Release

  • If bail is not required, courts must release defendants until trial with no restrictions (such as ankle bracelets) unless there is a significant chance that the defendant will flee the jurisdiction before trial (a “risk of flight”).
  • If money bail is not required but the defendant still poses a risk of flight, the court must select the “least restrictive alternative” when setting conditions on the defendant’s release. This might include a prohibition against leaving the state or a ban on possessing firearms, for example. The judge must explain his decision in writing.
  •  Defendants must be reminded of upcoming court dates through various methods such as text messaging.
  • A 48-hour grace period will be instituted when a defendant fails to show up for court, during which time no bench warrant will be issued against the defendant and the defendant can voluntarily return without penalty.
  • Limitations will be placed on the use of pretrial electronic monitoring. 
  • The court may revoke its original release conditions (by requiring money bail, for example) if the defendant commits certain types of misbehavior such as attempting to intimidate a witness, repeated failure to appear in court, etc.
  • Pretrial Services Agencies will be created in every New York county to supervise defendants released under supervision before trial.

Desk Appearance Tickets

Desk Appearance Tickets (DATs) are issued, if at all, by the arresting officer before the defendant’s arraignment (within 24 hours of the arrest). In this case, the arraignment will be set within 20 days and the defendant will go free until the arraignment. The issuance of DATs is expected to dramatically increase in response to the new bail reforms.

 

Two types of defendants are eligible for DATs:

  • Defendants charged with misdemeanors; and
  • Defendants charged with Class E felonies (the least serious type of felony).

Certain types of defendants are not eligible for DATs:

  • Domestic violence defendants;
  • Sex offense defendants;
  • Defendants charged with escape from custody or bail-jumping offenses;
  • Defendants who might be penalized with suspension or revocation of their drivers’ license (such as DUI defendants);
  • Defendants with a history of skipping court dates; and
  • Defendants who cannot prove their identity.

You Don’t Want to Be a Step Too Slow

A New York criminal prosecution is a very deadline-sensitive process, and missing an important deadline could result in consequences that range from the inconvenient to the disastrous. If you have been freed on bail, it may be somewhat easier for us to work with you, but we are perfectly capable of visiting you in jail if you are unable to make bail.
 

If the State of New York is prosecuting you for  a crime, either with or without bail, you are going to need the help of an experienced defense lawyer as early in the process as possible.

Contact E. Stewart Jones Hacker Murphy, immediately, online or call us to set up a free initial consultation. We maintain offices in Albany, Troy, Saratoga, Colonie, and Latham.

If the State of New York is prosecuting you for  a crime, speak with the highly skilled attorneys of  E. Stewart Jones Hacker Murphy today. Call us now!

New York Partially Decriminalizes Marijuana, Allows Automatic Expungements for Certain Offenses

Discriminatory Impact Cited

Marijuana is legal for recreational purposes in 11 US states, and it is legal for medical use in 33 states including New York. The criminalization of marijuana in the state of New York, however, has a long history. Marijuana was legal in New York until 1914, at which point it became a prescription drug. Although marijuana was fully criminalized in 1927, the plant grew wild throughout New York City until a cleanup was initiated in 1951.

In August of this year, however, the first major liberalization of legal restrictions on the recreational marijuana use since 1927 went into effect. The new law only decriminalizes relatively minor marijuana offenses, however, while retaining criminal penalties for the more serious offenses. New York is also launching an expungement project to clean up the criminal records of hundreds of thousands of people convicted of minor marijuana offenses.

Motives

The decriminalization of marijuana is supported by many people that do not necessarily wish to partake in the use of marijuana themselves. There are a variety of reasons why:

Discriminatory Impact

One of the primary justifications for decriminalization is the racial disparity in the arrest rate for marijuana  offenses, even after taking into account differences in the prevalence of marijuana use among various demographic groups. “This legislation is marking a momentous first step in addressing the racial disparities caused by the war on drugs,” said Senate Majority Leader Andrea Stewart-Cousins, D-Yonkers.

In 2018, New York City Mayor Bill de Blasio also told the NYPD to stop arresting people for smoking marijuana in public because of the racial disparities that currently prevail. Mayor de Blasio’s initiative would not affect the law itself, only its enforcement. This is in much the same way as the federal government refuses to enforce federal marijuana laws to the extent that the states have legalized its use.

Progress Toward Full Legalization

Another major generator of support for decriminalization is the “consolation prize” it offered advocates of full legalization. From this perspective, decriminalization is just  a step on the road to full legalization of the recreational use of marijuana. If that were to happen, New York wouldn’t be the first state to embrace decriminalization prior to legalization.

Decriminalization and Its Limitations

The new decriminalization law, which took effect in August, turns certain former criminal offenses for possession of marijuana into a “violation” subject to a fine rather than a criminal offense. This move puts minor marijuana offenses into the same category as a traffic ticket, and a violation will not result in a criminal record for the offender.

More specifically, Article 221 of the New York State Penal Law reduces the penalty for first-offense possession of less than 25 grams to a fine of no more than $100 – with the fine rising to as much as $250, depending on how many times the offender committed the violation over the past three years. A third offense within three years, however, can result in a 15-day jail term. Even though jail is possible, such a violation is still not considered a criminal offense.

Remaining Criminal Penalties

The idea that “marijuana has been decriminalized in New York” is an overbroad generalization. Possession of 25 grams or more can result in a jail sentence of up to three months, and 25 grams is less than a single ounce. Penalties rise as the amount in possession rises. Any sale of marijuana is still a criminal offense, and you can be charged with a felony for selling more than 25 grams. The maximum penalty for “trafficking” in marijuana is still 25 years in prison.

Smoking Marijuana in Public

Smoking marijuana in public, or within public view (in your backyard, for example), is still a criminal offense, even if you possess an amount so small that it would have been considered only a violation if you had been carrying it but not smoking it. Moreover, even if Mayor de Blasio’s policy of non-enforcement of public marijuana smoking laws takes effect statewide, smoking marijuana in public will still probably be prohibited everywhere that smoking tobacco is prohibited.

Drugged Driving

Drugged driving, a form of DUI, is still illegal in New York, and even a first offense is considered a misdemeanor crime. This state of affairs is hardly surprising, since you can be arrested for DUI even if a legal but intoxicating substance is found in your bloodstream (a prescription drug, for example). New York’s drugged driving laws are unlikely to change even if marijuana is legalized for recreational use, since there is very little public or legislative support for such a reform.

Expungement of Previous Convictions

Perhaps even more significant than the decriminalization of marijuana is New York’s decision to expunge certain convictions that occurred under the old law. Most previous convictions for possession of up to 25 grams of marijuana will be automatically expunged with no court proceeding necessary. Delay is inevitable, however. This is undesirable because every single day people are losing employment, schooling, and housing opportunities over past convictions.

Over 75,000 convictions for simple possession of marijuana and over 125,000 convictions for fifth-degree criminal possession of marijuana (more than 0.88 ounces), dating back to the 1970s, are eligible for expungement. The New York Drug Policy Alliance has complained that the state government underestimated the number of convictions eligible for expungement and that the real number is closer to 900,000.

In an automatic expungement, your conviction is sealed but the records themselves are not destroyed. If you wish to have the records destroyed, you will have to petition a judge for a court order. Although expungement is now New York state policy, the detailed mechanics of exactly how to go about doing it quickly and efficiently have still not been worked out.

The California Model

Automatically expunging over 200,000 criminal convictions will take time and money due to the sheer volume of work to be done. This isn’t the first time it’s been done in a populous state, however. Last year, California passed a law designed to automatically expunge about 200,000 marijuana conviction – about the same number that New York seeks to expunge. California just approved a budget of about $13 million for these expungements.

Medical Marijuana

Marijuana became legal for limited medical uses in July 2014. Medical marijuana did not become available immediately, however, because the law directed the New York Department of Health  to establish a medical marijuana program that allows licensed marijuana growers to operate dispensaries. All legal forms of medical marijuana are non-smokable at present, presumably due at least in part to second-hand smoking concerns.

The Effort to Legalize Marijuana in New York: Why It Failed and What the Future Holds

Advocates of the legalization of the recreational use of marijuana make several arguments for legalization, including:

  • Legal marijuana can be taxed, putting more money into state coffers, which can redirect it to schools, hospitals, etc.
  • Legalizing marijuana will unburden the police and unclog the judicial system so that resources that are now taken up prosecuting people for marijuana offenses can be redirected to prosecuting more serious offenses (to an extent, this argument also applies to decriminalization); and
  • Criminalizing marijuana use puts the marijuana business into the hands of drug gangs in much the same way as Prohibition in the 1920s put the sale of alcohol into the hands of the mafia.

In 2018, Governor Cuomo urged the state legislature to fund research on the effects of legalizing the recreational use of marijuana. The New York Department of Health responded by conducting a study on the various legal, economic, and social consequences of legalization. The Department of Health ultimately recommended legalization, and Governor Cuomo himself came out in favor of legalization.

The Marijuana Regulation and Taxation Act (MRTA) bill was then introduced to legalize the recreational use of marijuana. The bill ultimately failed, however, in favor of mere decriminalization. One of the main reasons that the bill failed, however, is because of the lack of unity among pro-legalization legislators – among whom opinions varied :

  •  Some wanted a legal minimum age limit of 25.
  •  Some wanted more sales revenue to be allocated to the police and to schools.
  • Some wanted towns and cities to have to “opt in” before the recreational use of marijuana became legal in their jurisdictions. This would allow the more conservative municipalities to keep recreational marijuana illegal locally.

Although it is difficult to state with certainty whether the recreational use of marijuana will ever be legalized in New York, it seems like a good bet. 11 states have already done so, “blue” states are more likely to do so than “red” states, and New York is one of the most reliably “blue” states in the Union. Only time will tell, however, and for the moment, all possession and use of marijuana remains illegal although not necessarily criminal.

Start Fighting Back Today

If you have been arrested for a marijuana offense, either recently or years ago, contact E. Stewart Jones Hacker Murphy immediately – either to fight the prosecution or to arrange for the destruction of the records of an old conviction. Contact us online or call our office to set up a free initial consultation. We also maintain offices in Albany, Troy, Saratoga, and Latham.

How Social Media Can Be Used Against You in a Personal Injury Lawsuit

legislative update

The statistics are stunning. Numerous studies have shown that nearly 3 billion people use social media. Social media sites such as Facebook and Twitter have been praised for their benefits and criticized for their dangers, and both proponents and critics of social media probably have valid points to make. One danger of social media that most people are unaware of, however, is its possible use against you as a plaintiff in a personal injury lawsuit.

Treat the insurance company you are claiming against as if they were the CIA. Because if your claim is sizeable, you can bet that their tactics will resemble CIA tactics. Assume that your social media accounts are being monitored by the insurance company because they probably are.

“Pain and Suffering” Damages

The fact of your injury may be difficult for an insurance company to dispute – after all, a broken leg is hard to argue with when medical evidence confirms the injury. In many personal injury lawsuits, however, the largest claim for damages is reserved for “pain and suffering” – in other words, the physical suffering that you endure because of your injuries. Compensation for pain and suffering often amounts to several times the amount of compensation for medical bills.

With many injuries (such as traumatic brain injury) and damage to soft tissue (as in a whiplash claim), the amount of pain and suffering involved is open to dispute and is largely dependent on your own testimony. It is under these circumstances that an insurance company is most likely to search high and low for ways to deny the seriousness of your suffering.

The Rules of Evidence Determine which Evidence Can Be Used as Evidence against You

Never forget that, when it comes to a personal injury claim, it is not the truth that matters so much as what you can prove through admissible evidence. New York’s rules of evidence contain some very counterintuitive provisions that could harm your case in ways that you might never suspect, by allowing dubious evidence to be used against you or by preventing certain evidence from being presented in court at all.

The Discovery Process Can Uncover Social Media Evidence That Can Be Used against You

The discovery process begins only after a lawsuit is filed. At that point, either party can demand evidence that is in the possession of the other party (or a third party such as Facebook), including social media posts and out-of-court witness testimony under oath (known as a deposition). If the other party refuses to respond, the requesting party can seek a court order demanding access to this information.

Before a formal complaint is filed, however, the discovery process cannot commence – at least to the extent that a court order can be used to enforce a request. Fortunately, many personal injury claims are resolved without a formal claim ever being filed with a court, resulting in the claim being resolved without any “discovery” evidence being disclosed.

Privacy Settings and the “Reasonable Expectation of Privacy”

Sometimes it is necessary for a plaintiff to file a complaint with a court, even if the plaintiff intends to eventually resolve the case through an out-of-court settlement. This is often done for the purpose of pressuring the insurance company to issue a reasonable settlement offer. Sometimes, however, insurance companies prefer that a complaint be filed so that they can take advantage of the discovery process.

One critical issue that most people would not expect is the way that a “reasonable expectation of privacy” is handled when it comes to social media posts that are uploaded while the sender’s account has been set to “private.” When a reasonable expectation of privacy is present, it takes a search warrant or a special exception to the warrant requirement to obtain evidence that is deemed to be subject to a reasonable expectation of privacy.

Believe it or not, however, numerous court decisions have held that social media posts uploaded when the user’s account is set to “private” can be accessed during discovery proceedings, even when the person demanding the posts was not among the social media user’s “friends” who had permission to access this information. That means that even posts intended to be shared only with friends can potentially be accessed by insurance companies during the discovery process.

Sensible Precautions to Take

The following are some tips on how to prevent your social media accounts from becoming the functional equivalent of witnesses against you in court or at the negotiating table:

  • Set your privacy settings to maximum unless there is a very good reason not to (if you rely on your social media account for income, for example, or you are an internet celebrity). Even after setting your account to maximum privacy, don’t count on this to protect you – there are ways of getting around these protections, as mentioned above. It is still better to set your profiles to private.
  • Don’t accept friend requests from people you don’t know, for obvious reasons. Once someone becomes your “friend,” they can gain access to information from your profile that would otherwise be invisible to them. Even people you think you know might be imposters.
  • Don’t talk about your accident or your injury at all, even to stress how seriously you were injured. If you are found to be exaggerating your injuries, it could hurt your credibility in court or at the negotiating table.
  • Don’t discuss any conversations you have had with your lawyer, because this could result in the waiver of “attorney-client privilege,” which means sacrificing a potentially important advantage.
  • Do not seek to reassure your friends that you are “OK” – after all, if you are OK, why should you be entitled to any compensation?
  • Do not upload any photos of yourself, especially if you are smiling, appearing to be having a good time, or present at a social event. Even old photographs taken before the accident could be characterized as post-accident photos. Social media sites, at most, tell you when the photo was uploaded, not when it was originally taken.
  • Even a “smiley face” emoticon could potentially be used against you. That is how careful you have to be.
  • Do not allow anyone to photograph you or the accident scene except you, the police, and your lawyer. These photos could end up on someone else’s social media account, and they could be located by your insurance company, especially if you are “tagged” by name.
  • Don’t even post evidence that you believe is favorable to you, such as a photo of you in traction at the hospital or photos of damage to your vehicle. Taking these photographs is fine, but sharing them on the internet could result in unintended consequences.
  • Warn your friends not to post anything about your accident and, especially, not to upload any photos that include you or ”tag” you in any photographs. Although, in many cases, the hearsay rule will protect you against utterances by friends from being used as evidence against you, the hearsay rule is subject to many exceptions. Photographs, by contrast, are not protected from admissibility by the hearsay rule.
  • Don’t email anything to your friends about the accident or your injuries, and ask your friends not to email you anything of this nature. Even emails might be recoverable in the discovery process.
  • If your case is publicized in the media and you are subjected to public criticism or skepticism, resist the temptation to defend yourself, argue with your critics, or attempt to clarify misconceptions. Keep your emotions under control.
  • Don’t assume that an online pseudonym will protect you – if your enemies can “dox” you, so can the insurance company.
  • DO NOT DELETE ANYTHING YOU HAVE ALREADY POSTED FOLLOWING YOUR ACCIDENT, NO MATTER HOW DISADVANTAGEOUS IT MAY BE TO YOU. In a worst-case scenario, you could be accused of evidence tampering, which can be prosecuted as a criminal offense.
  • Refusing to post anything at all on any of your social media accounts after your accident does not constitute tampering with evidence. After all, you cannot “tamper” with evidence that was never generated in the first place.

But What If My Case Is Settled out of Court? Does Admissible Evidence Even Matter?

Yes, it does. Your bargaining position in settlement negotiations is directly proportional to how strong your case would be if you took it to court, and the strength of your case is directly proportional to the weight of the evidence for and against your claim. If your claim is undermined by social media evidence, you are likely to lose either in court or at the settlement table.

There isn’t necessarily any need for you to close down your social media accounts entirely – in fact, this might raise suspicions that you have something to hide. It is imperative, however, that you strictly observe reasonable safety precautions.

Start Taking Safety Precautions Immediately

If you have been victimized by any kind of serious personal injury that you believe someone else may be responsible for, today is the day to begin implementing the foregoing safety precautions to protect the value of your potential claim. Contact E. Stewart Jones Hacker Murphy immediately, either by connecting with us online or by calling our Albany office at (518) 730-7270, to schedule a free initial case consultation. We also maintain offices in Troy, Saratoga, and Latham.

Nationwide Staff Shortage at Nursing Homes Sets the Stage for Abuse and Neglect

Nursing home abuse and neglect is a nationwide problem and, unfortunately, the situation isn’t any better in New York than it is anywhere else. A 2011 study at Cornell University estimated that, in New York alone, over a quarter of a million elderly people have been subject to some form of abuse, whether inside or outside of a nursing home, and that less than five percent of these cases have been referred to the authorities.

There is a fine line between abuse and neglect, of course. If a resident is left immobile long enough to develop bedsores, for example, does that count as abuse or neglect? Ultimately, it doesn’t matter. Either way, it is abuse, and one of the main causes of nursing home abuse is understaffing.

The Understaffing Problem

By some standards, well over 90 percent of New York nursing homes are understaffed. And the nursing homes with the worst records of abuse and neglect are the ones that typically suffer from the worst understaffing problems. There is more than one reason why so many nursing homes are seriously understaffed, including:

  • The burgeoning population of elderly people as a consequence of the aging of the Baby Boom generation.
  • The profit motive. Private nursing homes in particular are quite sensitive to the bottom line, and some private nursing homes cut staff to the bone in order to reduce costs and maximize profit. Even public nursing homes have budgets to meet. Obviously, this state of affairs can result in substandard nursing home care.
  • High turnover rates due to the stress of working in a nursing home.
  • Overtime pay: Due to well-intentioned employment laws, it is more lucrative to work overtime than to work your first 40 hours in a given week. This reality encourages some nursing home employees to frequently volunteer for overtime, thereby relieving the nursing home of the need to hire additional staff. Naturally, fatigued employees tend to provide substandard care.

Consequences of Understaffing

Some of the most common effects of nursing home understaffing include:

  • Long waiting periods to be taken to the bathroom, have diapers changed, or receive feeding assistance;
  • Overstressed staff who are more likely to commit overt acts of abuse such as physical or verbal abuse;
  • Failure to provide personal care and hygiene;
  • Development of bedsores (decubitus ulcers) because overworked staff rarely changes the body position of an immobile resident;
  • Failure to provide necessary medical care or medication;
  • Development of serious infections (from bedsores, for example);
  • Slip and fall accidents arising from inadequate supervision;
  • Dehydration and malnutrition; and
  • Lack of social interaction.

Understaffing and Sexual Abuse

Sexual abuse of nursing home residents is more common than is generally understood. Two ways that understaffing can contribute to sexual abuse are:

  • Lack of adequate security. Nursing home sexual abuse is sometimes perpretrated by outsiders who sneak into the facility.
  • Lower hiring standards due to a shortage of staff, which is often caused by low pay. Lower hiring standards make it easier for people to get jobs at nursing homes who should never be allowed to work there, who might have been accused of sexual abuse in the past, and who might go on to commit further abuse.

Warning Signs of Nursing Home Abuse

The following is a short list of only a few of the more well-known signs of nursing home abuse. If you observe any of these, it should put you on notice to investigate further.

  • Sudden injuries such as broken bones, sprained joints, bruises, burns or swelling;
  • The development of a sexually transmitted disease (STD);
  • Sudden and unexplained changes in mood or behavior;
  • Staff refusal to allow visits from friends or family;
  • Deteriorating personal hygiene;
  • Unexplained weight loss;
  • Dirty living space or soiled bedding; or
  • Bedsores.

Reporting Abuse

New York authorities accept complaints about any incidents of nursing home abuse that occurred within a year before the filing of the complaint. To report nursing home abuse to the New York State Department of Health, Division of Nursing Home and ICF/IID Surveillance, complete the Nursing Home Complaint Form, print it out, and then mail it to:

New York State Department of Health DRS/SNHCP
Mailstop: CA/LTC
Empire State Plaza
Albany, NY 12237

You can also fax the form to 518-408-1157, or scan it and email it to nhintake@health.state.ny.us. If you need immediate attention, you can also call the nursing home complaint hotline at 1-888-201-4563.

Personal Injury Claims

Once you have taken steps to get the abuse stopped, it is time to seek fair compensation on behalf of your loved one. Personal injury claims against nursing homes are generally characterized as negligence claims, although some incidents are rightfully characterized as intentional torts.

Violation of a Nursing Home Regulation

New York nursing homes are regulated at both the state and federal level. Under New York law, violation of a regulation is not considered automatic negligence, but merely evidence of negligence (violation of a statute, on the other hand, is considered automatic negligence). What this means is that even if you prove that the defendant violated a regulation, he can still argue that the violation was not serious enough to constitute negligence.

If the defendant loses this argument because the court agrees that the defendant’s regulatory violation was serious enough to constitute negligence, all you will have left to prove to establish liability is to show (i) the negligence actually caused the injury suffered by your loved one, and (ii) your loved one suffered damages thereby.

Ordinary Negligence and Intentional Acts

Nursing home staff are charged with the duty of properly caring for your loved one. If they fail to perform that duty, either by acting inappropriately or by failing to take the actions necessary to perform their duties, a court can find negligence or even intentional misconduct, even if it cannot point to a specific violation of nursing home regulations. A nursing home can be found vicariously liable for both negligent and intentional misconduct by its employees.

Personal Injury Compensatory Damages

Damages for a nursing home personal injury claim can include:

  • Medical expenses arising from the abuse;
  • Physical pain and suffering arising from the abuse;
  • Emotional trauma arising from the abuse;
  • Bodily injury arising from the abuse; and
  • Punitive damages.

Lost earnings are available in many personal injury claims but are not generally available in nursing home abuse claims. This is because very few nursing home residents are either employed or expect to work in the future.

Wrongful Death Claims

If your loved one died as a result of nursing home abuse, his or her personal injury claim becomes a wrongful death claim, which can be filed by the probate estate. The personal representative of the probate estate, typically a close relative, can file a wrongful death lawsuit on behalf of the estate for eventual distribution to the beneficiaries.

Wrongful Death Compensatory Damages

A wrongful death claim arising from nursing home abuse can seek the following types of compensation:

  • Funeral and burial expenses
  • Health care expenses that arose from the nursing home abuse;
  • Pain and suffering endured by your loved one prior to death; and
  • Interest on the award from the date of death to the date of actual payment.

Certain other types of damages such as lost earnings, lost inheritance, and loss of financial support provided to offspring, typically does not apply to nursing home residents.

Punitive Damages

Punitive damages are awarded, if at all, in addition to the ordinary compensatory damages described above. They can be awarded in either personal injury or wrongful death cases. Although punitive damages are relatively uncommon, they are more likely to be awarded in a nursing home abuse case than in other types of cases due to the moral repugnancy of nursing home abuse in the minds of jurors.

Although cases of active abuse are more likely candidates for punitive damages than cases of passive neglect, cases of severe neglect can certainly qualify for punitive damages. A general rule of thumb is that the amount of punitive damages may not exceed ten times the amount of compensatory damages.

The Statute of Limitations

Generally speaking, a nursing home abuse lawsuit must be filed within three years of the abuse complained of. Certain exceptions exist, however: If the abuse was a recurring phenomenon, for example, the three-year period might not start to run until the last act of abuse occurred. A wrongful death lawsuit must usually be filed within two years of the date of death of your loved one.

Consult with your lawyer on this matter. Exact statute of limitation deadlines are very fact-dependent when it comes to nursing home abuse lawsuits.

Settlement

The majority of nursing home abuse claims are settled out of court without a trial, because defendants fear runaway juries whose sympathies may lead them to issue extremely high damages awards. If the statute of limitations deadline is looming, however, your best bet is to go ahead and file a lawsuit and continue negotiating while awaiting a trial date. You can always withdraw the lawsuit if you reach an acceptable settlement.

Take Action Now to Protect Your Loved One

If you suspect that your loved one has fallen victim to nursing home abuse or neglect, don’t wait until your suspicions mature into absolute certainty. An experienced nursing home abuse attorney knows the telltale signs of nursing home abuse and can help you investigate and confirm your suspicions. This is so that the abuse can be halted immediately and you can begin preparing a compensation claim.

Contact E. Stewart Jones Hacker Murphy by calling our Albany office at (518) 730-7270 or by contacting us online to schedule a free case consultation. We also maintain offices in Troy, Saratoga, and Latham.

James E. Hacker, Esq. Named a “Fellow” of the International Academy of Trial Lawyers

 

 

 

 

 

 

 

 

 

 

 

 

 

International Academy of Trial Lawyers

ESJHM Managing Partner James E. Hacker, Esq. was named a “Fellow” of the International Academy of Trial Lawyers in London this past April.

Founded in 1954 the Academy is an invitation only group of elite trial lawyers. The International Academy of Trial Lawyers is recognized as one of the most prestigious organizations of trial attorneys in the world, limiting its membership to 500 trial lawyers in the U.S.

The law firm’s founding partner E. Stewart Jones, Jr. has also been a Fellow in the Academy for the last 30 years.

Sealing Criminal Records in New York

A criminal conviction, or even an arrest that did not lead to a conviction, can follow you around for the rest of your life. You may be denied housing, employment, or a professional license for this reason – and you might not even be told why, for example, that your employment application was rejected. New York, however, allows criminal records to be sealed from public view, thereby allowing you to conceal it from those who would use it against you.

Eligibility Requirements

To have your criminal record sealed, one of the following cases must apply to you:

  • There is an error on your criminal record.
  • The criminal charge that you wish to seal was resolved in your favor – a charge that was dismissed, for example, or a charge for which you were acquitted.
  • Non-criminal violations such as traffic violations can be sealed.
  • Many drug-related offenses can be sealed if you were sentenced to complete a judicially ordered drug treatment program and successfully completed that program.
  • Misdemeanors and certain felony convictions can be sealed if you committed no more than two such offenses and if no more than one of them was a felony. You must wait until 10 years have passed since the date of your sentencing or the date of your release from incarceration, whichever is later. Although the court has the discretion to decide whether or not to seal your record, certain serious offenses can never be sealed.

Criminal offenses committed when you were a juvenile are sealed automatically. Unfortunately, drug-related offenses for which you successfully completed a drug diversion mandate cannot be sealed, even if your case was dismissed.

Who Can See Your Criminal Record Even after It Has Been Sealed

In New York, the following parties can still view your criminal record even after it has been sealed:

  • Any person that you give written permission to
  • Your prospective employer, if you apply to become a member of a law enforcement agency
  • Your parole officer, if you are arrested while you are on parole or probation
  • Law enforcement officials, or a prosecutor, in response to a court order. This probably won’t happen unless you are arrested for a new crime that is related to a crime that has been sealed.

Procedure

To apply for the sealing of your criminal record, you must complete the following procedures:

  • Obtain a criminal Certificate of Disposition for CPL 160.59 Sealing application from the court with jurisdiction over your case. You will need one of these for each entry in your criminal record that you wish to have sealed.
  • Complete the application and turn it into the appropriate court.
  • Pay the filing fee. The fee is $5 per certificate outside of New York City and $10 per certificate inside New York City.
  • Wait until you receive your Certificate(s) of Disposition from the court.
  • Complete a separate Sealing Application for each item you wish to have sealed. Don’t sign it yet. Sign the sealing application in the presence of a Notary Public
  • Gather together any evidence of rehabilitation that you have collected (see below).
  • Copy the Certificate of Disposition, the Sealing Application, and your evidence of rehabilitation, and send a copy to the District Attorney’s office by mail or hand delivery. If you are seeking to seal more than one conviction in more than one jurisdiction, you will need to deliver these items to two different District Attorneys. Be sure to make an extra copy for your own records.
  • Fill out an Affidavit of Service to each DA you sent the application to, and sign it in front of a Notary Public. If someone else sent these documents on your behalf, they must complete the Affidavit of Service, not you. Copy the Affidavit(s) of Service for your records.
  • Send the originals of the foregoing documents plus the original Affidavit(s) of Service to the appropriate court. If you are applying to have convictions or guilty pleas sealed, this means the jurisdiction where the most serious conviction was entered or, if you are applying for sealing of two convictions of equal seriousness, to the court in the jurisdiction of the most recent conviction. There is no filing fee.
  • Wait to receive a copy of your Seal Order. You will receive this only if your application is successful.
  • Complete a Request for Seal Verification form and send it to the address printed on the form. You should receive a letter in the mail confirming that your criminal record has been sealed.

Evidence of Rehabilitation

Since judges typically enjoy broad discretion in deciding whether or not to allow a criminal record to be sealed, submitting evidence of rehabilitation (in the event that you are applying to have an actual conviction or guilty plea sealed) is one of the best ways of maximizing your chances of success.

Although the concept of “rehabilitation” is inherently nebulous, the following are some time-tested ways of convincing a judge that you have indeed rehabilitated. All of this evidence must concern your behavior after your last conviction.

  • Transcripts and letters of support from teachers and school administrators if you have been to school since your conviction.
  • Certificates of completion and letters from job training program administrators.
  • A letter from your employer testifying to your rehabilitation. The most persuasive letter would come from a direct supervisor.
  • A letter from your parole or probation officer.
  • Letters from people who have supervised you or worked with you in volunteer programs.
  • Letters from people who are in a position to evaluate your performance in a drug rehab program, psychological counseling program, or some similar program.
  • A Certificate of Good Conduct  (you must submit a separate application for this) or a Certificate of Relief From Disabilities (you must also submit a separate application for this)..

Let Us Help You Clear Your Name

Sealing your criminal records is a job that must be done right, and it must be done right the first time. Retaining a skilled New York criminal lawyer can be critical to avoiding the mistakes that could ruin your application. Contact E. Stewart Jones Hacker Murphy at (518) 730-7270 (our Albany office) or contact us online to schedule a time for us to discuss your case. We also maintain offices in Troy, Saratoga, and Latham.

James E. Hacker Inducted into the International Academy of Trial Lawyers

 

International Academy of Trial Lawyers

James E. Hacker Inducted into the International Academy of Trial Lawyers

James E. Hacker of E. Stewart Jones Hacker Murphy in Troy, NY was recently inducted into the International Academy of Trial Lawyers (IATL) at their Annual Meeting in London held in April 2019.  

The International Academy of Trial Lawyers limits membership to 500 Fellows from the United States, and includes Fellows from nearly 40 countries across the globe.  The Academy seeks out, identifies, acknowledges and honors those who have achieved a career of excellence through demonstrated skill and ability in jury trials, trials before the court and appellate practice.  Members are engaged in civil practice on both the plaintiff’s and the defendant’s side of the courtroom, and the trial of criminal cases. The Academy invites only lawyers who have attained the highest level of advocacy.  A comprehensive screening process identifies the most distinguished members of the trial bar by means of both peer and judicial review. Mr. Hacker has been evaluated by his colleagues and the judges in his jurisdiction and has been highly recommended by them as possessing these qualifications and characteristics.

Chartered in 1954, the Academy’s general purposes are to cultivate the science of jurisprudence, promote reforms in the law, facilitate the Administration of Justice, and elevate the standards of integrity, honor and courtesy in the legal profession.