Common Charges and Strategies for Defense
There’s never a “convenient” time to face a criminal charge, but dealing with police, courts, and lawyers when you’re young can be devastating, derailing your education or career, costing you more than you can afford just as you’re starting to build up your finances, and injecting doubt into all your plans for the future. A conviction could impact all aspects of your life: it could mean the loss of your driver’s license, restrictions on your ability to travel, or difficulty securing a job – and that’s not even considering the possibility of fines and imprisonment.
Understanding some of the criminal charges young people all-too-commonly face can help you if you ever find yourself in such an unfortunate situation. If you understand the charges, penalties, and defense strategies, and know in advance how to conduct yourself in your interactions with police and other authorities, you can minimize the consequences – and, with the help of a criminal defense attorney, get back on track to that bright future.
Many people are shocked to learn of the severity of penalties for a shoplifting conviction. Some charged with shoplifting are under the impression that if the item is returned, the matter is resolved – but if the police become involved, this will almost certainly not be the case. Contrary to all the depictions of shoplifting in comic films and TV shows, store owners and managers take shoplifting very seriously.
New York considers theft of items valued under $1,000 to be petit larceny. Petit larceny is an A misdemeanor – something that will appear on your criminal record and that will come up in background checks – punishable by up to one year in jail and a $1,000 fine.
In addition, few people know what qualifies as “shoplifting.” You do not have to leave a store with an item you haven’t purchased to be charged. If you conceal an item on your person – in a purse or in one of the reusable tote bags becoming popular with shoppers and retailers alike – you can be charged with shoplifting even if you haven’t left the store, and if you intended to purchase the item.
You can also face charges in civil court, where the store owner will try to extract further monetary penalties.
An experienced attorney can challenge the prosecution’s allegations of your “intent to deprive” the store of the property in question. Depending on the circumstances of your case, your attorney may also be able to have your charges reduced or dropped.
Young people are, unfortunately, prone to fighting. Perhaps you grew up horseplaying with friends, or playing sports that allow or even encourage roughhousing. Perhaps recently you were out at a bar and things “got physical” – you thought you were defending someone’s honor, or settling a dispute. Disputes can quickly escalate, though; if police become involved in a physical altercation, you will likely face criminal charges.
To win an assault conviction, the prosecutor must prove that you injured another person, and either intended to do so, or were responsible because of negligence. The extent of the injuries and other facts of the case determine the degree.
|Assault in the third degree||A misdemeanor||Injury and intent, or negligence||Up to 1 year in jail; fine of up to $1,000|
|Assault in the second degree||D Felony||Serious injury and/or use of a weapon||Up to 7 years in jail; fine of up to $5,000|
|Assault in the first degree||B Violent Felony||Most extreme cases||Up to 20 years in jail; fine of up to $30,000|
Regardless of the extent of the injuries, you will automatically face a second degree assault charge if you injure a public servant (such as a police officer or firefighter) and the assault prevented that person from doing his or her job; if you assaulted a person 65 or older and you are at least 10 years younger; or if you are at least 18 and assaulted a person 11 or younger.
In New York, first degree assault is the second most serious violent felony, after murder. Even if convicted of a third degree felony, you may face jail time, and restrictions after your release. You will not be able to own a gun, serve on juries, or serve in the military; you will not be eligible for welfare or government-funded housing; and you will be barred from certain careers.
To challenge any of these charges, your attorney might show that the prosecution cannot prove your intent to cause injury beyond a reasonable doubt, or argue that some of the victim’s injuries were not the result of your attack. Your attorney might also argue that your “assault” was in self-defense, or in the defense of another.
Vandalism is the intentional destruction or defacement of another’s property. Putting graffiti on a wall or a fence, breaking a window, slashing tires or scratching the paint jobs on cars, tossing tied shoes onto power lines, intentional flooding, ransacking or looting, setting fires, and even destroying crops or gardens can count as vandalism (though many of these charges would be paired with others). Young people can get involved in vandalism out of boredom, malice, peer pressure, or a desire to make an ideological statement. No matter the reasons, vandalism is a serious crime, and without a strong defense, jail is a likely outcome.
Vandalism falls into the category of criminal mischief in New York State. The severity of the charge depends upon the extent of the damage. For damage of $250 or less, you will be charged with an A misdemeanor, punishable by up to one year in jail. Damage in excess of $250 could be elevated to an E felony charge, carrying fines, imprisonment of up to four years, and probation.
Underage drinking and fake IDs
The national drinking age might be profoundly unfair, wrongheaded, and ineffective; it might seem “easy” to get around it; but it’s still illegal for anyone under 21 to drink alcoholic, and to misrepresent your age to acquire alcoholic beverages, and New York State is cracking down on these offenses. The consequences are very real. If convicted of an underage drinking charge, you could face fines and community service, and the suspension of your driver’s license.
Underage drinking charges are often “packaged” with charges for using or possessing a fake ID. If you’re a high school or college student under 21, it might seem like “all your friends” have fake IDs. Young people living in Buffalo, NY feel a particular pressure here: in Canada, just a short drive away, you can drink at 19; and in Toronto, it’s easy to find people who can make “fakes” from other states. But if you’re caught, you could be charged with a violation or a misdemeanor, and sentenced with fines and/or the suspension of your driver’s license. You don’t have to be using the ID, either – simply having a fake or stolen ID on your person is a punishable offense.
New York State has a “Zero Tolerance” policy on drinking and driving. If you are under the age of 21 and are arrested after driving, and you register a blood alcohol level of .02% or higher, you may face a charge of “driving after having consumed alcohol.” This is a violation, not a crime. It will not appear on your criminal record, and it should not affect your future career prospects. However, you will have to go to a DMV hearing, where you may have a lawyer present and examine or present evidence. If your BAC was at or below .05%, you will not face any jail time in New York State. At the very least, however, the DMV will suspend your license for six months and you will pay a civil penalty of $125. You will pay an additional $100 to have your license reinstated.
If you have no prior driving offenses or violations, you may be eligible for a conditional license, which would allow you to drive back and forth from work and school. If eligible, you may receive a conditional license upon enrolling in an approved Drinking Driver Program (both the program and the license carry additional fees).
Using a cell phone while driving
If you were born in the late 80s or 90s, you grew up hand-in-hand – literally and figuratively – with smartphones. We often talk about the struggle to “put down” our phones, which we check constantly; it’s a struggle because, unlike desktops or laptops, smartphones are no longer tools we use, but extensions of ourselves: extensions of our minds, our relationships, our careers, and our identities.
Unfortunately, because it is “second nature” to swipe open the latest update, or to “multitask,” browsing or messaging on a phone while doing anything else imaginable, we often put ourselves and others in danger because of the way we use our phones. The most obvious example is using a phone while driving.
There’s a lot of focus on texting (or using apps) and driving, but any use of a phone (without a hands-free device) is dangerous while operating a motor vehicle. Holding a phone to your ear takes ones hand off the wheel and partially obstructs your vision.
New York State imposes some of the country’s strictest penalties for talking on a cell phone or utilizing a mobile device while driving. Conviction is a five-point offense, at the same level as passing a school bus or reckless driving. (Remember that accumulating 11 points within 18 months will trigger immediate suspension of your driver’s license.)
If you’re charged with using a cell phone while driving, an attorney can save you from an embarrassing and time-consuming court appearance, and might be able to secure a reduced charge.
There are two different classes of marijuana possession charges in New York State, and both carry different penalties.
|Unlawful possession of marijuana||Violation||$100 fine|
|Possession of marijuana over 25 grams||Misdemeanor||Fine, plus up to one year in jail|
Drug charges for marijuana in New York depend on the amount of marijuana that is on your person or that you have constructive possession over. (“Constructive possession” means that you are in proximity to a controlled substance – for example, in a car or an apartment – and you have some degree of control over what happens to it.)
It will be harder to defend against solid evidence that you were in possession of 25 grams or more of marijuana if police stop you and find this on your person. However, in any case an attorney might be able to challenge the prosecution on the grounds that police stopped you without sufficient cause. Because New York State has decriminalized marijuana, and because local law enforcement agencies can be slow to adjust to these legal changes, police can sometimes overstep their bounds – and violate your rights – during an arrest for drug possession.
How to deal with police
You may already have experienced the benefits of being courteous in your interactions with police – or you might have experienced the opposite. Police have a great deal of discretionary power when writing tickets or placing individuals under arrest. If an officer pulls a person over for speeding, or stops a person with an open container of alcohol, depending on the context, that person’s comportment could mean the difference between a ticket and a warning. If police stop you for something more serious – like driving while intoxicated, shoplifting, or assault – you likely won’t get away with a warning. However, it’s still imperative that you act respectfully. The way you act in your encounter with police can determine the outcome of your case – for better or worse – when you go to trial.
When dealing with police:
- Use a calm, respectful tone. Do not yell, threaten, or be sarcastic.
- Respond to questions promptly and comply with the officer’s directions.
- Do not “resist” arrest: do not run, struggle, or try to prevent officers from putting you in handcuffs or placing you in a vehicle.
Remember that the arresting officer will testify at your trial. The officer will mention your comportment – good or bad. Testimony to your disrespectful behavior will make a judge less likely to reduce or drop charges, and could make that judge harsher in sentencing; testimony to your good behavior could contribute to lighter sentencing or reduced charges.
All that said, remember that you do not have to answer any questions. Instead of acting disrespectfully, some people are too forthcoming when under arrest, and end up saying things that incriminate themselves. It will be wise for you to inform an officer respectfully that you do not wish to answer questions, invoking your right to communicate with your lawyer.
There are many strategies for defending against the criminal charges listed above. If you are entirely innocent and were wrongfully arrested, your lawyer can challenge the prosecution, demonstrating to the court that it cannot prove your guilt beyond a reasonable doubt. If you were charged after police stopped you without reasonable cause, or if the authorities violated your rights in any other way, your attorney could have all the charges dismissed. And in almost every case listed above, there will be some chance your attorney can move the judge to reduce the charges, based on your background and the details of the case, especially if this is a first offense.
If this is your first charge, you might secure an adjournment in contemplation of dismissal (ACD). This means that the court will essentially drop all charges if you do not have any more encounters with law enforcement over a certain period. An ACD is accompanied by a court-imposed condition, such as restitution, completion of a drug treatment program, or simply remaining arrest-free for a specified period. If the individual completes those conditions successfully, charges are dismissed and the record sealed by the court. Judges often grant ACDs for first-time marijuana possession offenses, for example – but you have no chance of getting an ACD for a DWI in New York State.
Consult with an attorney who’s tried these strategies before, and who has the experience to defend your rights in court.
Protect what matters most
You can’t afford to let a criminal charge ruin your life and career before you’ve even properly begun them. As a former prosecutor, Drew Fritsch understands the nuances of criminal law in New York State; now a defense attorney, he has over 20 years experience assisting Western new York residents facing criminal charges. Contact criminal defense attorney Drew Fritsch today to set up a free consultation, and take the first step toward getting your life back on track.