All posts by Patricia Wright Law


The New York Grand Jury

             The Grand Juryis a panel of 23 members of the community who sit for a term of four weeks, hear testimony and decide whether there is enough evidence to go forward with felony charges against an accused individual.  Each county has its own grand jury and the empanelled members of the grand jury are pulled from the general jury pool.  In New York City each county has approximately 6 different grand jury panels.  The legal standard used to determine whether to indict a case is by a preponderance of the evidence, or reasonable cause to believe that the accused committed a felony.  In other words, if the grand jury finds that there is reasonable cause to believe that an offense was committed then they must indict.  This is a very different standard than “beyond a reasonable doubt” which most Americans understand is the criterion, but that is for a trial which eventually happens if the case is not dismissed or if the defendant takes a plea deal from the prosecutor’s office. Click here to see the definitions of beyond a reasonable doubt and reasonable cause.  The reasonable cause standard can include the introduction of hearsay evidence which is information gathered from a third party and not actually heard or seen by the witness.  Hearsay is not permitted at a trial.  If you have ever heard of the saying, “A grand jury would indict a ham sandwich,” it is this situation that gave it life and is a quote of former Chief Judge Sol Wacthler in the book The Bonfire of the Vanities by Tom Wolfe. 
            The grand jury chamber is a highly controlled environment with the prosecutor directing of the presentation of the case without a presiding judge. In theory the grand jury is supervised by the court (the judge) but the judges only come into play under limited conditions, for example, when a prosecutor needs permission to remove a case from the grand jury or when the jurors are having a hard time coming to a decision after being advised by the prosecutor.  No one is permitted to enter a grand jury chamber without permission of the prosecutor but the court officers and the court reporter.  Once the grand jury members are counted and a quorum is present, the prosecutor will introduce him or herself and then usually proceed to tell the grand jury what kind of case will be presented, what the charges are and how many witnesses will be heard during that particular session.  Each case has an identifying number and a case can be presented multiple times over the duration of the panel’s term.  The panel hears so many cases that the numbers are vital to keeping track of each case.  When the initial formalities are dispensed the prosecutor proceeds to present the case.  After each witness is heard, the grand jury is given the opportunity to ask its own questions but not directly.  The prosecutor will walk around the room and collect questions from the jurors but will only ask the ones that are “relevant” to the case at hand.  The prosecutor makes that determination and will inform the jurors whether or not a particular question will be asked.  Once the questions are answered to the satisfaction of the grand jury, the witness is excused. The grand jury proceeding is a secret proceeding the accused is not entitled to have access to any of the evidence presented until much later in the criminal process. 
            The person accused of a felony has the right to testifyon his or her on behalf to the grand jury.  The accused is not permitted to know who has already testified and usually the accused has to sign a waiver of immunity to what he or she is about to say.  The accused is, however, able to bring his or her attorney into the grand jury chamber but the attorney is not permitted to speak or advise the accused during the proceeding.  The prosecutor will then allow the accused to tell his or her side of the story after which the prosecutor will begin his or her own questioning.  It is the prosecutor’s goal to get as much information as possible from the accused because it is being recorded by the court reporter.  Any testimony given by the accused can be used further down the line in a possible trial and therefore locks the accused into a specific story and if the accused is claiming a defense, the prosecutor would know what that defense is.  Strategically, testifying can be a boon or a burden depending on whether the testimony is strong enough to sway the grand jury or not.  Each case must be carefully reviewed by an attorney and the accused to determine whether the accused should take the risk. 
            Once the case has been fully presented, the prosecutor will read instructions to the grand jury regarding how it should view the evidence presented and also read the definitions of the charges.  If the accused testified on his or her own behalf, an example of an instruction from the prosecutor will most likely direct the grand jury to not permit itself to be swayed by sympathy for the accused or any witnesses that have been heard.  If the accused testified as to an an alibi the prosecutor will most likely tell the grand jury that they must indict anyway if the prosecutor has presented enough evidence to meet the burden.  Once this has been done the case is then put to the vote and the grand jury can choose to do one of several things: 1) Indict the accused of an offense (or more than one), 2) Direct the prosecutor to file an information with the local criminal court (meaning that the grand jury found that there was enough evidence sufficient to make out a misdemeanor rather than a felony), 3) Direct the district attorney to remove the case to family court, 4) Dismiss the case outright, or 5) report misconduct to the empanelling judge. Click here for the full text of the relevant law.
In order for the jury to indict there must be a quorum present of 16 grand jurors and then at least 12 need to vote to decide whether the prosecutor has presented enough evidence to meet the relevant standard.  A vote in the affirmative is called a true bill and the accused has been indicted.  A vote in the negative will result in the case being dismissed.


Some Questions and Answers About Landlord and Tenant Law

I have received several calls in the past couple of months with questions pertaining to landlord and tenant law.  I thought for my next blog entry that it would be a good idea to share what I know with my readers and you all a few pointers.  The names of the “clients” have been changed for privacy purposes but the questions and situations are genuine.  I hope the following will be helpful.

Sylvia Dorchester asked: I have lived in my apartment for the past six years and the walls are starting to get dirty.  I asked the landlord to paint but he said that I would have to pay for the paint and for the workers.  This was not something that was in the lease but a friend told me that I should be able to have them painted over again free of charge.  What do I do?

Answer:  The answer to this question will depend on whether you are in a rent controlled apartment or a rent stabilized apartment.  If you live in a rent stabilized apartment you have the right to have the walls of your apartment painted once every three years at the landlord’s expense.   If the landlord fails to paint the apartment your remedy is to apply for a rent reduction based on failure to paint as a decreased services argument.  However, if you live in a rent stabilized apartment you may be charged by the landlord to recover the cost of painting.  The landlord must first show that the painting is not an essential service.   If it has been shown that painting is an essential service the tenant can apply for a rent reduction based on decreased services.

Jennifer Brent asked:  I have a rent stabilized apartment and I was paying $1,500 dollars per month.  My lease term is almost up and I received a notice in the mail that states that I now have to pay about $2,300 every month if I want to renew.  Can the landlord make me pay that amount?

Answer:  In rent stabilized apartments the landlord has the option to charge a monthly rent that is well below what is called the legal rent, or the maximum amount that the landlord can legally charge for that unit.  In order to foster good will and keep tenants paying every month the landlord agrees to allow the tenant to pay rent at reduced rate.  The landlord can exercise his or her right to charge the legal rent but must first follow the proper procedure which means that you must be notified of the increase between 90 and 150 days before the end of the lease term.  If they do not do this you are entitled to renew the lease and pay the rate you originally paid.

Benjamin Taylor asked: I have been living with my mother in a rent stabilized apartment for the past three years and she recently passed away.  Can I stay in the apartment?

Answer:  In short, yes you can.  If you are a family member of the person who was originally named on the lease you may have the right to a renewal lease.  You are required to have lived with the primary tenant at least two years prior to the death of said tenant.  If you happened to be in a rent controlled apartment you would have protection against eviction and the lease would pass to you.  This is called succession rights.

Julie Brentman asked: I am a landlord of a six unit apartment building.  I have a tenant who has not paid his rent in almost three months.  When I call him and ask when he will be paying the back rent he states that it is in the works.   This is a family business and a way to get a minimal extra income and his delinquency is taking a dent out of my finances.  I have never had this problem before.  What can I do about it?

Answer:  Well, there are a couple of avenues that you can take but I would suggest that by this time you should go for the gusto and start an eviction proceeding against him.  It does, however, take some time.  He has to be properly be served a 30 day notice and then if he does not leave you have to start the actual eviction proceeding.  You will get a court date but again that may not see a judge for another couple of months.  The other route would be to give him notice that if he does not pay his back rent you will start proceedings against him in housing court to recover the rent he owes.

Unfortunately, the process for landlords is often frustrating and slow and you may not actually recover the money you are owed.  I have seen many landlords give tenants several chances to pay their back rent and after several months the amount owed just keeps piling up.  At that point the tenant is just staying in the apartment because they know the court process is very slow and they are buying more time.

Joshua Tan asked:  I recently got into a fight with my landlord over some issues in my apartment.  The ceiling in my bedroom leaks, the kitchen sink faucet does not work properly, the stove is broken and there are several other issues make the apartment unpleasant in general.  I know that the landlord has a duty to repair these things and he just won’t do anything about them.  When I call now, he curses at me and he hangs up and will not listen to me when I try to tell him the issues that are wrong with the place.  It has been about a month now.  What can I do?

Answer:  Your first course of action is to call 311 and have a housing inspector come out and assess the violations.  There are three types of violations that can be given based on the severity of the violations that the inspector finds.  First is the Class A violation which are considered non hazardous condition and the landlord has 90 days to correct it.  The Class B Violation is considered a hazardous condition and the landlord has 30 days to correct the condition.  The Class C violation is considered to be an immediate hazardous condition and the landlord has 24 hours to correct the condition.  If the landlord does not correct the conditions your next remedy is to withhold your rent and go to court to request a rent abatement on the grounds that your quiet enjoyment of the apartment has been violated.  Please note that if there are violations found, you must give the landlord access to the apartment to make the repairs within a reasonable time frame.


The Nuts and Bolts of Employment Discrimination

Discrimination is the unjust treatment of different categories of people or things.  In New York State is is illegal to terminate someone’s employment because of his or her race, color, creed, national origin, sex, age, disability, sexual orientation, marital status, familial status, military status, arrest/conviction record and predisposing genetic characteristics.  However, because New York is an at will employment state, it may be difficult to prove that there has been discrimination or an illegal reason for the termination.  “At will” means that you can be terminated at any time for any reason and the employer does not need to give a reason for it.  A termination is only illegal if the impetus for the termination stems from one of the factors stated above.

When an individual (complainant) starts a case against a person for discrimination, it is his or her burden to lay out the facts in such a way as to show a trier of fact that there is an actual instance of discrimination.  First the complainant must show that he or she is a member of a protected class.  A class of people is just an other way of saying that you fall under one of the categories mentioned above like age or race.  The complainant then must show that that he or she was qualified to work in the position he or she was terminated from and lastly that the complainant was terminated under circumstances that create an inference of discriminatory conduct.  The employer (defendant) then has the burden to produce evidence that the complainant was terminated for a non discriminatory purpose and that the non discriminatory purpose alone was the reason for the termination.  In order to win the case, the complainant must then show that the defendant’s reason for terminating the complainant was, for lack of a better work, bunk.

If a finding is made in favor of the complainant, monetary awards may be given in the tens of thousands of dollars in the form of back pay. This is called a compensatory award.  Damages, an award for emotional distress, pain and suffering if there is any, can also be ordered.  The complainant can even get his or her job back if that is desired.



Grounds for Divorce in New York: A Bare Bones Guide

New York is a particularly difficult state in which to get a divorce.  Traditionally there were about 6 grounds under which couples were allowed to terminate their legal union and they were all designed to try to protect the sanctity of the marriage.  The divorce laws were created to try to force couples to stay in the marriage by making the prospect of a divorce a daunting task.  As a result, couples were forced to pretend to have marital issues to fit the legal grounds for divorce when the real impetus behind the split was relatively simple.  Couples would be rigorously examined about the intimate details about their relationship in open court before a judge would release them from the unwanted relationship.   As recently as 2010, however, lawmakers recognized the issue and enacted a seventh ground to get a divorce which makes it easier for parties who are in agreement that the relationship should come to an end.  Following is a brief explanation of the grounds under which a couple can file for divorce in New York.

The first, and newest, ground under which a couple can get a divorce is irretrievable breakdown.  Under this theory for divorce, you and your spouse must have a relationship that has broken down despite efforts to reconcile and the relationship has to have been broken down for at least 6 months.  Because this is a new ground for divorce, if you filed before October 12, 2010 it is not an option for you.  Additionally the court cannot grant a divorce using this theory until after all other matters in terms of property, custody and visitation of children, spousal support and child support have been sorted out.
The second ground for divorce a couple may use is cruel and inhuman treatment.  If you can demonstrate that your physical or mental health is in danger if you continue to live together then you may be granted a divorce under this theory.  If your spouse objects and the abuse happened more than 5  years ago then the court will not grant you a divorce on this ground.
The third ground for divorce is abandonment.  If your spouse leaves the household, or kicks you out , and does not intend to return to the relationship then you may have grounds to divorce under this theory.  The period of abandonment must have happened for at least a year.
The fourth ground for divorce is imprisonment.  If your spouse is in jail for at least three years then you may be granted a divorce under this theory.  If it has been more than five years since your spouse has been released from jail you may not be granted a divorce under this ground.
The fifth ground for divorce is adultery which means that your spouse was unfaithful to you.  A divorce under this ground will not be granted if you do or have done any of the following: encourage your spouse to commit adultery, forgive your spouse by having sexual relations with them after discovering the adultery or commit adultery yourself.  You may not be granted a divorce under this theory if it has been more than five years since the discovery of the adultery.
The sixth ground for divorce is a judgement of separation.  If you and your spouse have not lived together because of a decree of separation, also known as a judgement of separation, given by the court for at least one year.
Seventh ground for divorce is under a separation agreement and it requires that you and your spouse have not lived together for at least a year.  Additionally you have to have an executed separation agreement that had been signed before a notary.  All of the conditions of the separation agreement must be obeyed in order to be granted a divorce on these grounds.

First Arrest? No problem!

If you have been arrested in New York on a minor offense it is likely that you qualify for an Adjournment in Contemplation of Dismissal, or ACD for short.   Minor offenses include misdemeanor class offenses that don’t involve a victim and violation class offenses.  An ACD means that the case will be adjourned for a period of time, from six months to a year, after which the case is dismissed in the interest of justice.  The term “in the interest of justice” is just a way of way of saying that the case is not worth prosecuting, in so many words.  Some factors which contribute to the granting of an ACD are that officers are unable to adequately articulate probable cause for the arrest (in which case you should push for an outright dismissal), the prosecution has a very weak case, the individual was arrested for the first time and the alleged crime was relatively minor, and other factors.  A misdemeanor class offense can include theft of a small amount of items or items that amount to a low dollar amount, criminal mischief (like damaging or defacing property) and possession of small amounts of drugs to name a few.  A violation class offense includes disorderly conduct and simple trespass.  If you have been arrested and arraigned on a felony matter you have almost no chance of getting an ACD.  Its not impossible, its just unlikely and it will happen later on in the case.

Under the Criminal Procedure Law, or CPL for short, there are two statutes under which an individual can receive an ACD:  section 170.55 and section 170.56.  Under section 170.55 the case will be adjourned for six months.  At an arraignment the judge will tell you to stay out of trouble (don’t get arrested) for those six months and the case will be dropped entirely. There is no further action you must take and you don’t have to come back to court.  There are no court costs that you must pay and you are free to go home immediately.   In order to get an ACD under section 170.55 of the CPL the prosecution must consent to it and your defense attorney must also consent to it with your approval.
An ACD under section 170.56 deals solely with marijuana offenses.  The period of adjournment under this section is one year after which the case will be dropped.   An ACD under this section is special, however, because it does not require the consent of the prosecution.  If your defense attorney demands it and you have never had a criminal conviction involving drugs or you have never had another marijuana ACD you are entitled to have it by law.  The only way the prosecution can prevent you from getting an ACD is if you have been previously convicted of a crime.  In this case, the prosecution has to consent as well.   The ACD under section 170.56 of the CPL is also special because it covers marijuana offenses from minor possession of a small amount to sale of the substance to another person.  Just to be clear, “sell” under the New York State Penal Law includes giving it to someone without exchanging it for money.

Just as a side note, if you don’t want to deal with the process of getting a marijuana ACD in the first place here are a few things you can do to keep yourself from getting arrested.

  1. DON’T smoke marijuana out in public.  This is the fastest way to get busted.  That skunky stuff permeates the air and it is far reaching.  Officers have nothing better to do than track down where the smell is coming from.
  2. If you must partake in the use of marijuana DO it in the house with the doors and windows closed.
  3. DON’T have the stuff on you and act a fool in the street.  Be aware of your surroundings.  Make sure you are not unnecessarily calling attention to yourself and making yourself visible to authorities.
  4. DO have your stuff in a smell proof container if you are going to walk around in public.  Unburned marijuana smells just as skunky as the burned stuff.
  5. DO have access a good attorney who will be available to assist you if you are ever in a legal bind.  
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