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FAQ Answers to Your Pressing Questions

Frequently Asked Questions

Answers from Our New York Criminal Lawyer

  • Why does hiring the right law matter? Aren't all lawyers the same?

    Hiring the right lawyer is the single most important decision you can make if you’ve been arrested or if you think your rights have been deprived. Different lawyers have different experience and skills, which can make a significant impact on the outcome of your case. If you are in an emotionally and financially vulnerable situation and you need help. The trouble is you don’t necessarily know that the people who have the knowledge to help you are out to truly help you or whether they just want to take your money as you go down.

    Many firms, including the Law Office of John Buza, PC, offer free consultations. Taking the time to meet with an attorney and decide for yourself if it is someone you feel you can trust is a very important step in planning your defense. There are many things that set our team and firm apart from others, and we can tell you more in detail during a consultation. In the end, however, only you can decide if ours is the right firm for you.

  • If the police want to talk to me about a crime they think I committed, should I talk to them?

    If the police have placed you under arrest for a crime they think you committed, there is very little you can say that will change their minds. The reason you are under arrest is because they already believe they have probable cause that you committed this crime.

    In these circumstances, the police may want to talk to you, but it is not to hear your side of the story or to figure out what happened. They think they already know what happened. The reason they want to talk to you is because they want to build a stronger case against you. A stronger case almost always includes a statement made by the defendant. Although the police are going to try to get you to confess to the crime, they don’t necessarily need a confession to use your statements against you. As you were told when you were read your Miranda rights, anything you say can and will be used against you.

    All the police need is a “locked in” statement about what happened. Then, if they can prove that some part or all of your statement is not true, then the judge and jury will be presented with hard evidence that you lied about what happened. They may then ignore the actual evidence in the case and presume you are guilty because they think you lied about what happened.

    You are well within your rights to abstain from speaking to the police until you have an attorney present. You will have a chance to say your piece, your attorney can help you make sure you don’t say anything that could hurt you later.

  • But I am innocent of that crime and I have nothing to hide. What is the harm in me talking to them?

    As mentioned above, the police don’t need an actual confession for you to proverbially dig your grave if they can just disprove some of your statement. For example, suppose you tell the police you have an alibi during the time the crime was committed but you listed the wrong dates or times by mistake. In these circumstances, the police will not only think you’re lying, but they’ll use your ‘lies’ against you.

    When you are placed under arrest, whether you are innocent or not, you don’t know the evidence the police have. You are therefore at a tactical disadvantage in any conversations you have with the police. The best thing you can do is to ask for a lawyer. If you are innocent, the truth will come out, but you can’t afford to make mistakes.

  • If the police want to search my home, do I have to let them or can I say no?

    The Fourth Amendment to the U.S. Constitution gives all citizens the right to be secure in their homes from unreasonable searches and seizures. This means that you do not need to let the police search your home. However, if the police have a lawfully obtained search warrant that was signed by a Judge and your home is listed in the warrant, then you may not prevent the police from searching your home. Ask the police if they have a warrant before agreeing to the search.

  • The police arrested me for a crime they are saying I committed against a family member, but the family member wants to "drop the charges." Does that mean the case is over?

    Once you have been charged with a crime, it is the government that is pursuing the prosecution, not the person who filed charges. Therefore the person who wants to “drop the charges” has no legal right to do so. It is completely within the discretion of the government on how to proceed against you and whether to proceed. The victim of the case is not a party to the litigation. When a crime is committed, it is committed against the state.

    One reason for this is to protect the alleged victim from being pressured or intimidated into dropping the charges after they have been filed. If the person who filed the charges has no power to stop them, there is no reason to go after them.

    The best thing to do in these situations is to continue to follow all court orders, refrain from all contact from this person until the proceedings are over and contact is allowed, and to contact an attorney who can advocate on your behalf on how to get the charges dismissed.

  • If I get pulled over for drinking and driving and the police ask me to take chemical tests to determine whether I am intoxicated, do I need to take the tests?

    New York is an implied consent state, meaning if you have a license, you have agreed to receive DUI testing. So if the police ask you to submit to a breath test and you refuse, your license is likely going to be suspended. With that said, the issue of whether you should submit to the chemical tests is one you should discuss with an attorney before you submit to the tests. You have a qualified right to an attorney if you ask for one before your submission to the tests.

  • I missed my last court date, what should I do?
    You should contact your attorney and go to court immediately. If you missed your last court date, the judge likely issued a warrant for your arrest. That means the police are actively looking to arrest you and bring you to court. Once you are brought to court, the judge will likely increase your bail or remand you to jail. If you voluntarily return to court, however, you can earn some grace with the judge. Your lawyer may be able to help you in explaining to the judge why you missed your court date
  • What does mandatory minimum mean?

    A mandatory minimum prison sentence is a prison sentence that a judge must sentence you to if you are convicted of a designated crime. During the “war on crime” politicians enacted laws that removed that forced judges to adhere to sentencing mandates.

    For example, In New York, if you’ve never been convicted a crime in the past and you were just convicted of Robbery in the First Degree, the judge must impose a sentence of at least five years incarceration. So the mandatory minimum for Robbery in the First Degree is five years prison. The judge is not allowed to look at mitigating circumstances about you or the crime and sentence you to less than five years.

  • What are the federal sentencing guidelines?

    The federal sentencing guidelines were enacted in 1984 in response to people believing that sentences imposed by federal judges were becoming too arbitrary. The guidelines were an effort to clarify how much time a person was expected to serve given what they were convicted of and what their criminal record was at the time of the crime.

  • I got arrested and was charged with possessing a dimebag of marijuana in my pocket. I thought marijuana was decriminalized in New York. Why do I have a case I need to fight?

    Less than 25 grams of marijuana are decriminalized as long as you don’t smoke it in public or hold it to public view. If you do either of those two things, then you are committing a Class B misdemeanor, which is punishable by up to 90 days in jail. However, just because marijuana has been decriminalized, does not mean you can’t get arrested for possessing it. Police routinely arrest people for possessing marijuana even if it is not open to public view and the District Attorney’s Offices routinely charge people. Moreover, if you are convicted of this marijuana “violation,” it stays on your record for three years.

  • I was arrested for committing a crime, but I am innocent. Do I even need a lawyer? Won't the truth prevail?

    Sadly, the answer to this question is the truth won’t necessarily prevail. The legal justice system in the United States is “adversarial.” An adversarial system means that each side to a legal dispute is expected to bring forth their own witnesses and then argue their case before a judge or jury. The judge or jury then makes determinations as to whom to believe.

    It is very easy for attorneys, judges, and police to be misinformed on the situation, and, unfortunately, your testimony as a defendant will be seen as a lie for self-preservation. The prosecution does not have any interest in finding out if you’re innocent or not; their job is to prove your are guilty, and they will do whatever they can to prove that in court.

    You can prove your innocence, but only with the help of a capable attorney who knows how to argue in a courtroom.

  • If I am convicted of a crime in New York City, will anyone know that I have a criminal record?

    Yes. A criminal record almost always lasts forever. It is not hard for an employer or someone else to determine whether you have been convicted of a crime. In addition, a criminal record carries with it numerous collateral consequences, such as losing the right to vote, losing out on employment opportunities, and even deportation if you are an immigrant.

    An arrest, however, is evidence of nothing. Our society recognizes that a person can be arrested by mistake. Employers are even precluded from asking employees if they’ve ever been arrested. And an arrest does not remain on anyone’s record unless the person is subsequently convicted. Therefore, you should hire an attorney to help you ensure that you are not convicted of a crime.

  • The DA's office is offering me an opportunity to plead guilty to a crime and they are willing to give me a sentence as low as time already served. It does not get any better than that, does it?

    As previously mentioned, having a criminal record has serious consequences. This is still a “win” for the prosecution because they were able to confirm the police arrested the right person. Unfortunately, for you this means a permanent criminal record. Even a “time served” plea agreement may not be in your best interests.

  • What does "plea bargain" mean?

    A plea bargain is a negotiated plea between the DA’s Office and the defendant in which the defendant agrees to plead guilty to a lesser crime than the one the person is accused of committing. Like all negotiations, both sides are giving something up here. The defendant is giving up his right to fight the charges, to have his lawyer confront witness against him, and to force the government to prove his guilt. In fact, the defendant is even going to admit that he committed a crime in open court. The DA’s Office is giving up the insistence that the defendant be sentenced to as much jail time as the crime he is charged with asks for.

    Many cases resolve with plea bargains. So when you hire a defense attorney, you need to ensure that this person will provide sound advice when helping you decide whether or not to agree to a plea bargain. Remember, you will be admitting to this crime and obtain a criminal record if you agree to the detail; in most cases.

  • What does bail actually mean?

    Bail is the temporary release of an accused person who is awaiting trial on condition that he return to court when his case is heard. Bail is often granted on a condition that a sum of money or property be lodged to guarantee the person’s appearance. If the person fails to appear, the money or property is forfeited.. Bail is a method of ensuring that the person makes his court appearances, while keeping with the tradition of the presumption of innocence.

    Practically speaking, how bail is set largely depends on who the person is, what their criminal record is, what his or her community ties are, how strong the case against them is, and how serious the case is.

  • I am being charged with possessing a loaded firearm in New York, but I am from another state and my firearm is licensed in that state. Why am I being charged with that crime?

    In New York, if you possess a loaded firearm in public, you are guilty of a class C violent felony. The sentence is a minimum of 3½ years prison and a maximum of 15 years. The judge has no discretion in sentencing you to less time. What’s more, New York does not acknowledge valid permits from other states. So legally speaking, a valid permit from another state is worthless in New York. However, a good lawyer can use the fact that you have a lawful permit as a mitigating factor in resolving your case equitably.

  • If I get pulled over by the police and they want to search my car, do I have to let them?

    The U.S. Supreme Court has found that there is a diminished expectation of privacy in a person’s car. That means that there are situations in which the police may search the car without a warrant and without consent. One common situation occurs when the police pull you over and they have “reasonable suspicion” that you committed a crime. Under those circumstances, the officer is permitted to search the “grabbable area” near where the driver’s seat is for his own protection.

    The police still need “probable cause” in order to search the trunk. Probable cause is a higher standard than reasonable suspicion. There are a few things you need to keep in mind when you are pulled over by the police.

    • 1) Traffic interactions are very common for police officers, but they are also nerve-racking for them. Simply put, they are very vulnerable because they may not see your hands or what you’re doing. Police are highly trained in these situations. What may seem like a routine traffic stop to you, may seem like a life or death situation for them. Remember the cop has no idea who you are when they pull you over. You should do everything you can to make the officer feel at ease. To show you are complying with their demands, turn the car off and put the keys on the dashboard; turn on all the lights in the car; keep both hands on the steering wheel at all times; and if you need to do something like get your wallet, announce your intentions and do it slowly. If you do these small things, the police are more likely to treat you less like a suspect and more like a person who is conscientious.

    • 2) If the police ask you to search your car, politely decline. If they say something like, “…if you don’t let us search your car, we are going to just get a warrant,” still decline. You don’t need to let them search your car unless they have a valid search warrant.

    • 3) Comply with all their instructions, but calmly reassert that you are not consenting to them searching your car. If they ask you to step out of the car, do so slowly and calmly.

    • 4) Even if they find contraband in the car, your attorney can litigate the issue as to whether they had the legal right to search the car and the evidence may be suppressed. That is why you must remain calm.
  • I was given a "desk appearance ticket." How is that different than being arrested and do I still need a lawyer?

    Click here for detailed info about DATs.

    If you were given a DAT, you were arrested and you do need a lawyer. The only difference between a DAT and being put through the system is that when the police give you a DAT, they think you are going to make it to court for your arraignment, whereas as if they don’t have that confidence, they’ll take you to the arraignment themselves. But that is the only difference. The charges are just as serious and you could end up in jail in the same way you could if you were sent through the system. It is absolutely critical that you hire an attorney as soon as possible to discuss the charges.

  • What does "false arrest" mean?
    False arrest means the police did not have the legal right to restrain you. Ordinarily, a legal standard called “probable cause” is used to determine whether the police have the right to place you under arrest. “Probable cause” simply means there is objective evidence that leads the police to believe that it is more likely than not that the arrestee committed a crime. This standard is very low and it falls considerably lower than the legal standard of “proof beyond a reasonable doubt” which must be used to find a person guilty of crime. A false arrest occurs when the police arrest a person when there was not enough evidence to satisfy this “probable cause” standard.
  • What does "excessive force" mean?

    The police are legally allowed to use a certain amount of force when effecting an arrest. However, the amount of force they use must be reasonably necessary under the specific circumstances. Excessive force occurs when the police exceed the necessary amount of force necessary to effectuate the arrest.

    For example, if the police are arresting a person for a crime they believe the person committed and the person fights them off, punches them, and then pulls out a knife, it may be reasonable for a police officer pepper spray the individual or to otherwise attempt to incapacitate him. However, if the police are arresting a peaceful protester and they decide to pepper spray the protester because the individual officer doesn’t like the politics of the protester, then the force used may be considered excessive.

  • Will I prevail if I sue for my rights being deprived?

    It depends. For you to prevail, you need to prove by a standard of proof called “preponderance of the evidence” that the police did not have probable cause to arrest you. The standard for probable cause is very low. The police merely need to think it is more likely than not that you committed a crime. It doesn’t necessarily matter whether you actually committed the crime or whether you are actually convicted of that crime. As long as the police have met the standard of “probable cause,” then they had the right to arrest you and you won’t win in court.

    The biggest difficulty in winning a civil rights lawsuit occurs when the arrestee is arrested based on allegations made by another person. A civilian informant’s testimony is always considered to be probable cause.

    However, people are routinely arrested without probable cause and even if the police did have probable cause to make an arrest, they still don’t have the right to exceed the amount of force that is reasonably necessary to effect that arrest. So contact a lawyer immediately if you think you have been arrested falsely or if you think the police used excessive force. You and your lawyer can discuss your options.

  • How much time do I have to file a civil rights lawsuit after the incident initially occurred?
    The statute of limitations for filing a civil rights lawsuit depends on where the lawsuit is filed and under what legal theory. The typical mechanism for filing a civil rights lawsuit is to file is under 42 U.S.C. § 1983. Under 1983, the statute of limitations is three years from the incident.
  • The police arrested me and now the DA’s Office is prosecuting me for a crime based on the word of one person alone. How can that happen?

    The Fourth Amendment to the U.S. Constitution gives all citizens the right to be secure in their homes from unreasonable searches and seizures. This means that you do not need to let the police search your home. However, if the police have a lawfully obtained search warrant that was signed by a Judge and your home is listed in the warrant, then you may not prevent the police from searching your home. Ask the police if they have a warrant before agreeing to the search.

    The police arrested me and now the DA’s Office is prosecuting me for a crime based on the word of one person alone. How can that happen?

    Although evidence can come in the form of fingerprints, DNA, or surveillance footage, the overwhelming amount of evidence used in the legal system is eyewitness accounts about what happened. A criminal conviction can legally be sustained by the testimony of one person alone if the jury finds beyond a reasonable doubt that this person is credible and accurate in her testimony. This is one of many reasons why you should consult with an attorney for your case—you will want to find a way to counter the testimony against you.

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