Blog – Mehrfar Defense https://www.mehrfardefense.com NY Criminal Defense Attorney Mon, 19 Oct 2020 22:18:59 +0000 en-US hourly 1 https://wordpress.org/?v=5.8.1 https://www.mehrfardefense.com/wp-content/uploads/2019/09/logo-trans-1-60x60.png Blog – Mehrfar Defense https://www.mehrfardefense.com 32 32 WILL THEY EVER FIND OUT? WHAT YOU SHOULD KNOW ABOUT CRIMINAL HISTORY BACKGROUND CHECKS https://www.mehrfardefense.com/will-they-ever-find-out-what-you-should-know-about-criminal-history-background-checks/ Fri, 19 Oct 2012 17:08:53 +0000 http://mehrfardefense.com/?p=369 One of the most frequently asked questions people have after they get arrested is will anyone else find out about it. Most often people are concerned that their employers or prospective employers will find out. The answer is complicated and depends on the situation. Read below to find out more.

I. Federal Records

Criminal histories are available, in varying degrees, from organizations at the federal, state and local levels. At the federal level, the FBI compiles criminal history records through the National Crime Information Center. The records that are stored there include outstanding arrest warrants, arrest records, stolen property, missing persons, felonies and misdemeanors. Additionally, the FBI runs the National Instant Criminal Background Check System (used to screen would-be purchasers of guns), the Integrated Automated Fingerprint Identification System (allows for background searches by fingerprint, when available), and the Combined DNA Index System (matches DNA to crime scenes and DNA on file).

The FBI gets the information for these databases from federal records (e.g. crime scenes and federal arrests), state and local data sharing, and the National Law Enforcement Telecommunications System (NLETS). NLETS compiles data from every local, state and federal law enforcement, justice and public safety agency for the purposes of sharing and exchanging that information. The data compiled includes motor vehicle and driver data, Canadian and Interpol databases, state criminal history records, and driver’s license and DOC images.

It is possible to obtain copies of criminal records maintained by Federal Agencies under the Freedom of Information Act (FOIA) and the Privacy Act. In general, however, private citizens or companies may only obtain such records concerning themselves, deceased individuals, or living individuals who have given their permission for their records to be obtained. Thus, it is possible for companies seeking to hire new employees to retain the services of any number of private companies that may procure criminal records from the FBI, as long as the prospective employee signs a waiver giving the permission for his records to be accessed first. Conversely, it would not be possible for a private law firm, for example, to use FOIA to retrieve a criminal history from the FBI without first getting permission from the person it wishes to research.

The FBI also makes criminal history background checks available through the Automated Fingerprint Identification System. This service is exclusively available for individuals wishing to obtain their own criminal histories; no third party will be given any report from the FBI, regardless of any permission given by the individual. You can contact the FBI directly or obtain it through an FBI-approved Channeler, which is a private business that has contracted with the FBI. These businesses receive fingerprint submission and relevant data, collect the associated fee(s), electronically forward the fingerprint submission with the necessary information to the FBI Criminal Justice Information Service (CJIS) Division for a national criminal history record check, and receive the electronic record check result for dissemination to the individual. There are eight approved Channelers:

1. 3M Cogent Systems
2. Accurate Biometrics
3. Eid Passport, Inc.
4. Fieldprint, Inc.
5. Inquiries, Inc.
6. National Background Check, Inc.
7. National Credit Reporting
8. TRP Associates, LLP dba ID Solutions

For federal records, it is only possible to obtain criminal history background checks if you have the permission of the person you want to check out, and even then it must be through a FOIA request, which can take some time. Because of this, it is necessary to explore the state and local channels in order to obtain information about people without their permission.

II. State Level

Although it is possible for background check companies to get information through FOIA, it is standard practice in the industry to use state or even county resources to complete criminal history background checks. Background check companies use statewide court, corrections and law enforcement records to compile a criminal history of the targeted individual.

Though the companies admit to using statewide databases, this method can lead to incomplete results. State repositories gather information from local courts and agencies, which they rely on to provide this information to them, so their records may not be comprehensive. Although possibly incomplete, state repositories contain arrest records, felony convictions, misdemeanor convictions, cases without disposition, expunged cases, and possibly juvenile records.
The National Association of Professional Background Screeners (NAPBS) advises its members to use statewide database searches to narrow down their search and obtain more information about the individual they are searching for. Once the statewide databases have confirmed the identity of the person whose background must be checked, the NAPBS recommends companies then use the information obtained at the state level and go to relevant county courthouses to do their primary research on the individual.

To gather this information from state agencies, the employer/background check company must obtain written authorization from the individual. The background check companies, or Consumer Reporting Agencies (CRAs), can report interactions with law enforcement going back seven years from the time of the request. Although the CRAs can report this information to employers, states place restrictions on what information employers may consider when making hiring decisions. Most states restrict employers’ consideration of criminal records that are sealed, annulled, expunged and/or pardoned by the governor during the hiring process. Although most states have these rules, employers are still able to legally view whatever information they are given by a CRA. Thus, it is difficult, if not impossible, to completely prohibit employers from considering criminal histories that they are not supposed to.

In New York, CRAs can obtain criminal history reports from the New York State Unified Court System for a fee. These reports include conviction and pending records as they relate to felony and misdemeanor cases originating in Town and Village Courts, City, and County/Supreme Courts. Data relating to non-criminal offenses (e.g. violations and infractions) do not appear on these reports. Cases processed in Town/Village Courts from 1991-2002 also do not appear on the reports. Finally, sealed records are not reported. These reports are not certified, but it is possible to contact the court of origination, where an offense was tried, and obtain a Certificate of Disposition for a nominal fee. To get these criminal history reports, it is necessary to have the full name and date of birth of the individual; the system will then provide results for all 62 counties within New York State.

Although the New York State Unified Court System will give anyone criminal history records as described above, the New York State Division of Criminal Justice Services will not. The records from the Division of Criminal Justice Services are more comprehensive than those available through the New York State Unified Court System, but it is against the law for them to give out personal criminal history records to anyone other than the individual whose record is sought or that individual’s attorney. This rule is pursuant to 9 New York Code of Rules and Regulations Part 6050.1.

III. Local/County Level

As recommended by the NAPBS, county courthouses are the places with the most first-hand information and most complete records pertaining to the criminal history of an individual. County courthouses generally contain information about felonies, misdemeanors, infractions and traffic violations in addition to arrest records, cases without disposition and expunged cases. Anyone is able to walk into a county courthouse and conduct a search of such records, as they are public property. The line is drawn, however, at expunged cases, as a member of the general public cannot go into a county courthouse and obtain information about such cases. It is possible to search New York City county records online. Search options on the court website include an index number search, plaintiff search and defendant search.

The downside to searching at the county level is that it is much more time consuming than searching state or federal databases. There are 62 counties in New York State, and although it is unlikely that an individual will have lived in all of them, it is very possible that an individual would have a criminal record in several counties in New York, as well counties in other states. Whereas researching individual counties’ records could take quite a long time, by searching in state and federal databases that time would be significantly reduced.

While it would seem as though expunged and sealed records would not be available for public viewing, evidently there are cracks in the wall. Because of agencies like NLETS and the unprecedented speed and frequency with which information is shared and passed from agency to agency, coupled with the fact that there is considerable time from the beginning of the process to when records are expunged or sealed, these records can be provided to state and federal agencies. Once they are in the federal and state databases, they are accessible to CRAs. Although CRAs generally collect data on individuals only when they are hired to do so by potential employers, the data will be stored in the state and federal databases for CRAs to access whenever they are hired to do so.

By: Charles Welcome for the Law Office of A. Adam Mehrfar

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ORDERS OF PROTECTION IN NEW YORK DOMESTIC VIOLENCE CRIMINAL CASES: BALANCING THE RIGHTS OF THE ACCUSED VS. PROTECTING THE COMPLAINANTS https://www.mehrfardefense.com/orders-of-protection-in-new-york-domestic-violence-criminal-cases-balancing-the-rights-of-the-accused-vs-protecting-the-victims-2/ Tue, 07 Aug 2012 21:24:11 +0000 http://mehrfardefense.com/?p=348
Ever since Galina Komar was killed in February 1996 by her ex-boyfriend after he was released on bail
, New York Criminal Courts have struggled with how to balance the rights of the accused while protecting the complainant/victims. In the Komar case, Judge Lorin Duckman of Brooklyn Criminal Court was widely criticized after Komar’s death for lowering her ex-boyfriend’s bail, allowing him to post bail and get out of jail. The irony is that Judge Duckman did the right thing at the time. The prosecution was continuously not ready for trial and such a “change in circumstances” was a proper and lawful basis for the reduction of bail. Judge Duckman was subsequently removed from the bench.

After Komar’s unfortunate death, there was understandable public outrage that the New York criminal court system did not do more to protect victims of domestic violence. In response, the NYPD instituted a new program, which among other things, installed a dedicated “domestic violence” police officer in each precinct in New York. And New York criminal court judges began issuing “Full” Orders of Protection in every criminal case where the allegations in the criminal complaint include any assault, menacing, or harassment charges.

But some could argue that in the quest to do more to protect the complainants in domestic violence cases, New York criminal courts have gone too far. “Full” Orders of Protection are issued summarily, often without any information beyond the bare allegations contained in the criminal complaint. These “Full” Orders of Protection have significant power. They prevent the accused from going anywhere near where the complainant might be, including the complainant’s home or workplace.

In domestic violence cases where a husband is arrested and the wife is the complainant, the issuance of the Full Order of Protection will prevent him from going home and force him to choose between staying in a hotel while the criminal case is resolved (which can sometimes take years) or going home and facing the prospect of being arrested again for violating the Order Of Protection. This situation arises regardless of whether there is a marital relationship. For instance, where a girlfriend moves into the boyfriend’s apartment, the issuance of an Order of Protection will prevent him from going to his own home and allow the girlfriend, regardless of whether she is on the lease, to continue living in the home.

This is the difficult dilemma that New York criminal courts face in domestic violence cases. On one hand, the court’s primary goal is to ensure the safety of those who are abused or threatened with domestic violence. However, on the other hand, a person’s home is a sacred place, and the constitution demands that a person be afforded due process if the State is going to prevent him from returning home.

New York’s Criminal Courts’ power to issue an Order of Protection arises under New York CPL § 530.12 as a condition of bail or release without bail. In New York, there are two forms of an Order of Protection: A “Full” Order of Protection, which is a full “stay away” order, and a “Limited” Order of Protection, which is not a “stay away” order but orders the accused not to commit any new crimes against the complainant, or risk being charged with violating the Order of Protection in addition to any new charges that may be filed. A Full Order of Protection, in addition to being a “stay away” order, also forbids the accused from making any contact with the victim, including, but not limited to, any phone calls, text messages, emails, or even contacting the person through a mutual acquaintance.

As powerful and sensible as a Full Order of Protection may seem, in circumstances where the victim and the accused live together or share property, courts face a very serious constitutional dilemma. By ordering a person to stay away from the victim, the court may also be ordering the person to stay away from his or her home, thereby restricting his or her liberty and property interests, which without satisfying the requirements of due process, would be unconstitutional.

Such a scenario came before the New York City Criminal Court in People v. Forman, 145 Misc.2d 115 (NY 1989). The defendant, Milton Forman, and the complainant were husband and wife, but at the time of his arrest, were separated and living in separate apartments within the same building. Forman was arrested and charged with Assault and Harassment. At his arraignment, the court released Forman on his own recognizance but also issued an Order of Protection, which direct him, inter alia, “to stay away from the home, school, business or place of employment of [the complainant].” Id., at 117.

Less than a month later, Forman sought to have the Order of Protection changed so that he could access one of the apartments in the building. When the court denied his application, Forman moved to challenge both the sufficiency of the evidence against him, and the constitutionality of the Order of Protection, as a violation of Due Process.

First, the court found that the evidence against Forman was sufficient to justify the issuance of the Order of Protection. Then, the court engaged in a detailed discussion of the procedures and criteria for the issuance of such Orders. Essentially, the court approached the Order of Protection problem by a balancing of the State’s interests in issuing the order, against the defendant’s property interests. The court called domestic violence a “social scourge of the first order” and found that any efforts in the prevention of such crimes would be “severely undermined” if a defendant could immediately reach back out to the victim and further harm or intimidate them. Id., at 126-127. On the other hand, the court called the defendant’s property interest “a substantial one.” The court even goes as far as to say that there is an obvious risk that some temporary orders of protection will be erroneously issued, but the court would rather err on the side of over protection, even though an innocent person may be deprived of their property. Id., at 128

This balancing approach, though favorable to the victim, does not altogether deprive the accused of any means to be heard. At arraignment, before a judge can issue an Order of Protection, he or she must determine whether there is sufficient probable cause to justify the issuance. This determination almost always leads to the issuance of the Order of Protection because a judge will often consider the arrest to be sufficient probable cause. Further, because any adversary procedures such as testimony or cross-examination “would add significant delay to the already existing backlog” in the judiciary system, the court will often not allow such proceedings until a later, separate hearing. Id., at 129.

The process of a Forman Hearing is similar to a trial. Both parties have an opportunity to present and cross-examine witnesses in order to assess their credibility and to assess the validity of each account of the events leading to the arrest. While the court does not specify an exact time frame for when a Forman Hearing should occur, it does say that “[t]he requirements of due process do entitle [the] defendant to a prompt evidentiary hearing after the temporary order of protection excluding [the] defendant from the home has been issued.” Id. Normally, because of the constitutional issues at stake, a judge will set the date for a Forman Hearing relatively quickly.

At the hearing, in addition to assessing the credibility of the involved parties, the court considers various factors included in CPL § 530.12 (1) (a) to determine whether the Order of Protection was properly issued. These factors include prior incidents of abuse, prior Orders of Protection and cooperation with them, past or present injury, drug or alcohol abuse, access to weapons, and “‘whether the [Order of Protection] is likely to achieve its purpose in the absence of . . . a condition’ excluding the defendant from the home” Id., at 132.

After the hearing, if a judge determines that there is sufficient “danger of injury or intimidation” to the complainant, the Order will be upheld, reissued, or extended. A violation of an Order of Protection can result in criminal contempt charges, revocation of an order for release on recognizance, revocation of a conditional discharge, or imprisonment.

There are ways to persuade the court not to issue a Full Order of Protection, even over the objection of the People, but the basis for objecting to the issuance of an Order of Protection should be made as soon as possible, preferably at the criminal court arraignment. If the Judge issues the Full Order of Protection at the criminal court arraignment, the able lawyer should demand a Forman Hearing at the arraignment hearing for a date as soon as possible. At the hearing, the People will have the burden of showing why the Order of Protection should remain in effect. The attorney for the accused can attack the State’s evidence and present his or her own evidence as to why the Order of Protection should not be issued.

Kevin Kehrli, JD Candidate 2014, substantially contributed to this Article.

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STATUTORY RAPE: GUILT WITHOUT INTENT https://www.mehrfardefense.com/statutory-rape-guilt-without-intent/ Fri, 14 Jan 2011 19:00:55 +0000 http://mehrfardefense.com/?p=264 Although having sex with a 13 year old girl hardly makes Mr. Polanski a sympathetic figure, his recent arrest brings into the spotlight the often inherent unfairness of America’s strict liability statutes and specifically the crime of “statutory rape”. As is the case in New York, most states have laws that make it a crime for an adult to engage in sexual intercourse with a minor, regardless of whether the adult knew or had reason to know, that the person was underage. Regardless of where one stands on Mr. Polanski’s conduct, by stripping away one of the core elements of criminal law- intent- we have created a situation where people can be convicted of serious felonies without knowingly or intentionally committing a crime. Unfortunately, such “strict liability” statutes – in the absence of knowledge and/or intent on the part of the accused – can often lead to very unjust results.

Let’s be clear: No one is advocating (at least not this author) that adults should have sexual relations with minors or that they should not be punished if they do knowingly engage in such conduct. And since Mr. Polanski admitted that he knew he was having sex with a minor, it can hardly be said that his was an unjust result. Society needs to both deter and punish those who endanger children’s lives. The problem is that by eliminating the element of intent, a core principle of almost every crime, a person can be found guilty of the crime regardless of the circumstances.

Under the New York Penal Law, a person is guilty of rape if he or she, being 21 years or older, engages in sexual intercourse with a person less than 17 years old. Consent is not a defense, and the person is guilty regardless of whether they knew or had any reason to believe the “victim” was a minor. Although such laws were likely passed with good intentions- to protect our children from sexual predators- the consequences of such laws do not always comport with societal ideals of fairness.

A hypothetical example: Let’s say you have a 21 year old son named Joe who is a senior at an Ivy League school and has a bright future ahead of him. One night he meets a girl in a club (where 21 is the minimum age for entry) and they spend the evening drinking and dancing. During the evening she tells Joe that she is also 21, and since she looks to be about that age, or perhaps even older, Joe never gives it a second thought. Later they decide to go to Joe’s dormitory and they engage in consensual sexual intercourse. The problem is that she was actually just shy of 17 years of age and your son Joe is now guilty of a felony offense- even though he had every reason to believe that she was of age.

Again, no one is suggesting that having sex with minors is a good thing or should be condoned, but if Joe had every reason to believe that he was having sex with a 21 year old, should he be guilty of a felony? And let’s be honest- with the short hemlines, high heels, and heavy make-up style that has become de rigueur amongst many young women today, it is not too difficult for them to appear much older than they actually are. If Joe didn’t know, and indeed had no reason to know, that he was having sex with someone under the age of 17, should he be labeled a felon and sent to prison? Is he really a criminal who deserves incarceration? Do we as a society truly believe that Joe must be locked up for our protection? Should Joe be a registered sex offender with his once promising future all but destroyed?

As lawyers we are taught in law school that almost every criminal act has two components: the mens rea (the criminal intent) and the actus reas (the physical act in furtherance of the criminal intent). The intent element is crucial to the fairness of the penal law- reasonable mistakes or accidents that were not intended should not be characterized as criminal and should not be subject to punishment.

For example, if you are going through a security checkpoint and you pick up a wallet that you reasonably believe to be your own, but that someone else mistakenly left behind, (as indeed was the situation in a case I recently handled) then you should not be guilty of a larceny, because it was not your intent or conscious objective to steal someone else’s wallet. Fortunately for my client in that case, larceny, as with most other crimes, does require intent as an element of the crime, and the case was appropriately dismissed by the prosecutor when it became clear that it was an innocent mistake.

In Joe’s case however, no matter what his intentions were, no matter how reasonable it was for him to believe that she was old enough, he is guilty. Indeed, even a prosecutor who felt sympathetic for Joe’s position would be required to follow the law and seek a conviction. Most reasonable people would agree that if Joe really didn’t know or have any reason to know he was having sex with a minor, this would not be a fair result.

So what is the answer? Obviously, the prohibition against having sex with minors is a good one. It is the lack of intent as an element of the crime which makes “statutory rape” unjust. Most advocates of strict liability argue that removing the intent element is a necessary vehicle to proving such cases, since intent is difficult to prove. This is simply untrue. There is already a legal concept that would allow prosecutors to convict the guilty, but also ensure that where justice demands it, the defendant can be exonerated- it is called the “rebuttable presumption”.

The rebuttable presumption in essence means that if you are “caught in the act,” it is presumed that you had the intent to commit the crime, thus relieving prosecutors of proving intent. But the rebuttable presumption provides a safety valve- if the accused can prove that he didn’t know and had no reason to know that he was committing a crime, a jury can find him not guilty.

The rebuttable presumption is already used in New York in several instances- such as the “automobile presumption.” Under the automobile presumption, any occupants of a vehicle found to contain contraband are presumed to have knowing possession of the contraband, thus relieving the prosecutor of the difficult burden of proving that the guy in the backseat knew there were drugs in the glove compartment. Nevertheless, an occupant of the vehicle can offer evidence to rebut the presumption of knowing possession, so that, at least in theory, an innocent person is not wrongfully convicted of a crime they had no intent to commit.

Of course, the rebuttable presumption would not likely have helped Mr. Polanski, as any jury would probably find it difficult to believe that he didn’t know or had no reason to know that he was having sex with a 13 year old girl. But for someone like Joe, who really didn’t know and had no reason to know that he was having seX with someone underage, the rebuttable presumption would allow a jury hearing Joe’s case to render a verdict of not guilty. Under “strict liability” statutes of today, he would never have a chance…

By A. Adam Mehrfar

ALL RIGHTS RESERVED

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Gilbert Arenas, Plaxico Buress and Prosecutorial Fairness in Gun Cases https://www.mehrfardefense.com/gilbert-arenas-plaxico-buress-and-prosecutorial-fairness-in-gun-cases/ Fri, 12 Mar 2010 06:54:04 +0000 http://mehrfardefense.com/new/?p=1

The recent news that the NBA Star Gilbert Arenas received a sentence of 30 days in halfway house and 2 years probation for unlawful possession of firearms calls to mind the infinitely unjust sentence imposed upon the NFL player Plaxico Buress in New York not too long ago. Whereas Arenas will not even serve one day in jail and will be back playing hoops next season, Plaxico remains in a state prison more than one year later on his 2 year sentence for essentially the same crime.  It’s unclear whether Plaxico will ever get to play football again.

In November 2008, Plaxico went to a New York nightclub and brought a gun with him for protection. His teammate had been robbed at gunpoint on a New York street just a few days before, and in the months preceding Plaxico’s arrest, there was a spate of gunpoint robberies targeted against NFL Players.  Plaxico, obviously fearing for his safety, brought a handgun with him out that night and kept it in his waistband. Unfortunately for Plaxico, the gun accidentally discharged and he shot himself in the leg.

Soon thereafter, many pundits and politicians, including Mayor Bloomberg, were calling for Plaxico to be dealt with harshly. The Office of the District Attorney, New York County,  refused to make Plaxico an offer, even though they have a reputation for being reasonable and fair, and have made plea-bargain offers to other offenders with the same charges in the past.  Having no viable defense, Plaxico was forced to plead guilty and accept the mandatory minimum sentence of two years.  He remains in prison.

Justice was not served in the case of People of the State of New York v. Plaxico Buress. Like many other states, New York has very harsh mandatory minimum sentences for people in possession of loaded weapons, and there are many sound public policy reasons for the same.  Such harsh sentencing laws can sometimes be appropriate for people who carry guns with ill intent- such as those who carry them to commit robberies or other violent crimes.  Yet Plaxico did not carry a weapon to commit a robbery or some other type of crime. He brought it for protection, because as a celebrity athlete he was a target, a potential victim.  Sean Taylor, another NFL pro, was shot and killed the year before in a robbery attempt.  Plaxico had every reason to believe his life was in jeopardy when he went out that night- he had a good reason for carrying the weapon.

Surely, the harsh sentences available under New York’s tough gun laws were not intended for someone like Plaxico Buress.  He was a potential victim, not a miscreant looking for trouble.  Moreover, as a Celebrity living in New York City, Plaxico merely needed to apply for a carry permit and his application would very likely have been approved.  Apparently, he mistakenly (but not unreasonably) believed that his Florida carry permit gave him permission to carry the gun in New York.

It is hard to fathom that the failure to submit an application warrants a two year prison sentence.   It doesn’t.  The prosecutors wanted to make an example out of Plaxico.  They wanted to tell the world that if you carry a gun without a permit in New York you are going to prison.  This may be good public policy, but it is patently unfair when an individual loses his liberty as a result.  Plaxico was a sacrificial lamb.

Justice demands that the punishment be commensurate with the crime.  Before Plaxico was sentenced, he had already paid a high price for his supposed transgression- he seriously injured himself and lost his job for the season.  He was publicly humiliated.  He had to deal with investigations by both the NYPD and the NFL into the incident.  He had to bear the heavy burden of knowing that he let down his teammates and that he may likely go to prison for his actions.   It is almost a certainty that Plaxico didn’t sleep very well for a long time.

In light of all of the crimes against other NFL players and other professional athletes, it can hardly be said that Plaxico’s belief that he needed a gun for protection was unreasonable. The punishment must fit the crime, not whatever message the prosecutor wants to send to the public.  Plaxico lost his liberty and his livelihood  because he didn’t put in the proper paperwork.  That is not justice.  And ultimately, justice must be the goal of every district attorney, regardless of who the defendant is…

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