Category: Criminal Defense

Update to Marijuana Statutes and Expungement Under New York State Law

Posted on

Under New York State Law, some marijuana possession charges are automatically expunged from your record. Under the new law, charges that are eligible for expungement are expanded. Other charges require a motion to be submitted.

Expungement means that the arrest, the court case, and the conviction are treated as if they never happened. For a definition of expungement see CPL 1.20 (45). Charges that have been expunged:

  • will not appear or show up on a criminal history background check.
  • cannot be used against an individual when applying for housing, student loans, or a job.
  • will not be found by law enforcement unless you are applying for a gun license or a job in law enforcement.
  • do not need to be listed on a job or school application that asks about convictions or arrests.

Statutes that are automatically expunged without motion include (

  • PL 221.05 Unlawful Possession of Marihuana in the Second Degree
  • PL 221.10 Unlawful Possession of Marihuana in the First Degree
  • PL 221.15 Criminal Possession of Marihuana in the Fourth Degree
  • PL 221.20 Criminal Possession of Marihuana in the Third Degree
  • PL 221.35 Criminal Sale of Marihuana in the Fifth Degree
  • PL 221.40 Criminal Possession of Marihuana in the Fourth Degree
  • PL 222.10 Restrictions on Cannabis Use
  • PL 222.15 Personal Cultivation and Home Possession of Cannabis
  • PL 222.25 Unlawful Possession of Cannabis, and
  • PL 222.45 Unlawful Sale of Cannabis
  • The Court will not send out notices to individuals that a case was expunged. The Division of Criminal Justice Services (DCJS), the police, District Attorneys, and other law enforcement agencies will be notified.
  • If you would like to know if your conviction was expunged, you can request a certification of disposition from the Court where it was decided.

Potential Immigration Consequences

Non-US Citizens may wish to speak with an immigration attorney before taking any additional steps regarding their criminal record. They may need to file a different type of motion even if the conviction is eligible for automatic expungement.

The criminal defense attorneys at Heiferman & Associates have sealed/expunged major felonies including sale of controlled substances, burglary, DWI (driving while intoxicated) and more. Don’t let a past mistake get in your way. With a clean record, people will be able to pass background checks for employment. Our criminal defense lawyers assisted numerous clients seal records in New York and New Jersey. These successes include both felony and misdemeanor convictions. Additionally, our immigration lawyers can advise how your criminal cases can/will affect your immigration issues. If you or someone you know has a criminal conviction, we might be able to help seal (NY) or expunge (NJ) your record. Contact us today at (718) 888-9545 for a consultation.

New York City Fair Chance Act (NYFCA) adds protections for individuals with criminal records.

Posted on

In 2015, NYC passed the NYFCA that prohibited employers from inquiring about a potential employee’s criminal record before a job offer. An employer could not rescind an offer based on a prior conviction without undertaking a “Fair Chance Process”. This processing including balancing factors in Article 23-A of the New York Corrections Law. If a job offer was taken away, the employer needed to share the analysis with the individual. The applicant was also to be given at least 3 days to respond.

The first amendment to the Act extends these protections to CURRENT employees, not just applicants. The analysis for employees and independent contractors slightly differs than the analysis required for applicants. It uses seven factors (the “NYC Fair Chance Factors”) set forth in the NYC Commission on Human Rights Legal Enforcement Guidance. For applicants, employers use eight factors set forth in Article 23-A of the New York Corrections Law.

The next change allows applicants more time to respond. Applicants are given a minimum of five days instead of three. Additionally, there are changes to the vetting process. Under the original NYFCA, the only restrictions for an employer’s review and consideration of an applicant’s background checks were the requirements of the Fair Chance Process. Now, an employer must separate its review of such a report into two phases. (1) Before making an offer, the employer may only review non-criminal background information (employers may not review driving records because these records could contain references to criminal history). (2) After reviewing the information and making a conditional offer, the employer can review criminal history and driving records and, if needed, engage in the Fair Chance Process.

The amended NYFCA and the New York City Commission on Human Rights’ NYFCA guidance states private and most public employers are prohibited from seeking any information or taking adverse employment action based on a person’s non-conviction history. This includes arrests that did not result in prosecution, cases in which all charges were dismissed, youthful offenses, and sealed convictions.

The criminal defense attorneys and employment attorneys are here to assist employees and employers with questions about the job screening process. Our criminal defense lawyers are well-versed in the impact of various convictions. Our employment lawyers are able to tie this information together to effectively analyze this process. Our experienced attorneys practice throughout the New York and New Jersey metro-area, including but not limited to the following counties: New York City, Queens, Kings (Brooklyn), Long Island, Bergen, Hudson and more. The lawyers at Heiferman & Associates are available by appointment in the office, as well as Zoom, MS Teams, Google and more. Please contact us today at (718) 888-9545 to schedule a consultation.

Sealing and Expungement of Criminal Records

Posted on

Don’t let past mistakes prevent future success. The criminal defense lawyers at Heiferman & Associates are here to help. Certain people with criminal records may be able seal up to 2 criminal convictions in New York. If you have no more than two misdemeanor convictions or one felony and one misdemeanor conviction, you may be eligible to have those convictions sealed. The sealing of records will make these convictions invisible to most potential employers. It is also possible to expunge records in New Jersey.

The criminal defense lawyers at Heiferman & Associates are experienced with sealing and expunging in both states. Several years ago, New York State passed a law that allows people with certain criminal convictions to seal these records after ten years. The ten-year period starts from the date of conviction or release from prison, whichever is later. You cannot have had any new criminal convictions or have a current criminal case pending. If you have more than 2 convictions, you may still be eligible if your convictions are related to the same one or two incidents. For example, if you were charged and convicted of multiple crimes during one incident, the court may treat multiple convictions as one conviction. While this may sound complicated, our experienced criminal defense lawyers will make the process easy.

The criminal defense attorneys at Heiferman & Associates have successfully sealed/expunged major felonies including sale of controlled substances, burglary, DWI (driving while intoxicated) and more. Don’t let a past mistake get in your way. With a clean record, people will be able to pass background checks for employment. Our criminal defense lawyers have successfully assisted numerous clients seal records in New York (We also have helped clients expunge records in New Jersey). These successes include both felony and misdemeanor convictions. If you or someone you know has a criminal conviction that is more than 10-years old, we might be able to help seal (NY) or expunge (NJ) your criminal record. Contact us today at (718) 888-9545 for a consultation.

Counterfeit sunglasses being sold on NYC street.

New York City Counterfeit Culture Is Alive And Well

Posted on

It is awards season, which means you cannot turn on the tv, or pass a newsstand without seeing a story about what your favorite stars were wearing on the red carpet. A celebrity’s answer to the shouted question “Who are you wearing?” drives trends, and increases the demand for whatever luxury good they are not-so-subtly hawking. 

However, one of the things that makes a luxury a luxury is scarcity. There is a gap between supply and demand that drives up the prices of luxury goods and makes them a tempting target for counterfeiters looking to make a quick buck. As a New York City-based criminal defense firm, we are quite familiar with trademark counterfeiting crimes. We have defended these crimes on both the state and federal levels.

New York City is the epicenter of counterfeit culture. Canal Street may be a bit tamer than it used to be, but if you “know a guy” you can get your hands on knock-offs of almost anything — clothing, watches, movies, music, shoes, purses, iPhones, auto parts, cosmetics, pharmaceuticals, you name it. 

It is tempting to whip out your wallet if you want a name brand product you cannot otherwise afford, or if you have the opportunity to flip such goods for a profit. But, possessing counterfeit goods comes with legal risks. 

Are you buying or selling? 

One of the interesting things about New York counterfeiting laws § 165.71,  § 165.72 and § 165.73, is that it is illegal to sell counterfeit goods, but not to buy them (unless you’re buying with the intent to sell, deceive, etc.). If you buy 100 pairs of designer imposter sunglasses out of the trunk of some guy’s car, you have technically done nothing wrong, even if you know the glasses are fake. However, if you then turn around and sell those glasses, you have broken the law. 

To be clear, our firm is not encouraging anyone to go out and purchase counterfeit goods, it is simply an important legal distinction that deserves mention. 

What is the law? 

Under New York state law: “a person is guilty of trademark counterfeiting… when, with the intent to deceive or defraud some other person, or with the intent to evade a lawful restriction on the sale, resale, offering for sale, or distribution of goods, he or she manufactures, distributes, sells, or offers for sale goods which bear a counterfeit trademark, or possesses a trademark knowing it to be counterfeit for the purpose of affixing it to any goods…” 

Let’s break this down and put it in plain English. 

It is illegal to know the goods you are selling, re-selling, or might sell in the future are counterfeit. It does not matter if you made the goods yourself, bought them, or are just holding them for someone else. 

The more the goods are worth, the more serious the crime. 

Is there any defense if you are caught with counterfeit goods? 

The definition above makes it seem as though there is little wiggle room if you are caught selling or holding counterfeit goods. To some extent that is true, but there is a bit of a loophole built into the law. It is technically only illegal if you know the goods you have are counterfeit. The government must be able to prove that you knew the goods you had were fake. 

It may also be possible to get a charge thrown out if the way the government found out about your stash was improper. 

Experience You Can Trust

The criminal lawyers at Heiferman & Associates are experienced at defending people who have been charged with counterfeiting crimes. If you have been arrested or charged with a trademark counterfeiting crime, we are ready to help. Please contact us today to schedule an initial consultation. 

Criminal defense attorney meeting their client to discuss charges.

Common Defenses to Criminal Charges

Posted on

Innocent until proven guilty is the cornerstone of the U.S. criminal justice system, but it often does not feel like it. Prosecutors carry the burden of proving that a defendant is guilty of a crime beyond a reasonable doubt. This is the highest threshold to meet, as well it should be since a person’s life and freedom are often at stake. 

While the burden rests with prosecutors to prove a case, the defendant is entitled to mount a defense to undermine or disprove any case the prosecutors may have built. The type of defense can vary depending on what crime the defendant is being charged with, but there are several common defenses for several criminal charges.

Defenses Commonly Used for Criminal Charges

As previously stated, the prosecutor has the burden of proving that a defendant is guilty of every element of a crime beyond a reasonable doubt. One of the most common criminal defense strategies is to undermine the prosecutor’s case by casting doubt on whether they have actually proved an element of a crime. This may come from something like presenting the possibility that someone else committed the crime, or that there were circumstances that would make it nearly impossible for the defendant to be able to commit the crime. An alibi defense may also be presented, which is typically built on evidence that the defendant was somewhere other than the scene of the crime when the crime was committed.

There are also several defenses asserting that a defendant committed the alleged act, but he or she was justified in her actions. For instance, in cases of self-defense, a person may have used violence, such as hitting or kicking, but only did so because he or she was being threatened or victimized by the violent actions of another. Self-defense is a common defense to a charge of assault or battery. Another example of this type of defense is duress. With a claim of duress, the defendant admits that he or she committed the alleged act, but it was only because he or she was forced to do so by another person.

Additionally, there are defenses where a defendant asserts that, while it may appear that a crime occurred, no crime was committed. For instance, an assault was not actually an assault because the alleged victim consented to the harm. We have defended many individuals who were arrested and charged with identity theft after obtaining “mystery shopper” jobs, only to find out they were using stolen credit cards. Another example is arrests for selling or possessing items with trademark infringements or counterfeit goods. Often the person charged will have no knowledge these items were fake. The knowledge and intent of the person arrested is often an element of a crime. 

Criminal Defense Attorneys

Facing a criminal charge can feel hopeless. You are supposed to be innocent until proven guilty, but you may already feel condemned. Do not lose hope. There are many ways to successfully fight a criminal charge. The experienced criminal defense attorneys at Heiferman & Associates will mount the strongest possible defense to any criminal charge you face. Additionally, our employment lawyers assure clients are properly advised on the potential impact a case may have on their employment status. Similarly, our immigration lawyers are here to advise clients on the impact a criminal case may have on their immigration status. Whether someone is charged with a misdemeanor or complex felony, our criminal defense lawyers are here to help. Contact us today.

Lawyer talking to his client about his case, telling him why it is important to remain silent.

The Importance of Keeping Quiet When You’ve Been Accused of a Crime

Posted on

Remaining silent is one of the most important things a person can do following an arrest. With the exception of basic identifying information, an arrestee is legally entitled to refrain from answering a police officer’s questions. Almost any information that an arrestee provides to a police officer may be used by the prosecuting attorney at trial. Thus, there are very few instances in which an arrestee should provide the police with information about the crime or crimes with which he or she has been accused. Below is some additional information regarding the right to remain silent in New York and under federal law. 

Remaining silent is a constitutional right 

The Fifth Amendment to the U.S. Constitution protects individuals from being forced to give self-incriminating testimony. The U.S. Supreme Court has held that a police officer must stop questioning a suspect as soon as he or she asserts the right to counsel. However, the Supreme Court has also held that a suspect must affirmatively invoke his or her right to remain silent.

The Fifth Amendment also bars compelled testimony in a criminal case against oneself. And the right to silence is among the Miranda rights that a police officer is required to recite to a suspect during or after an arrest. In other words, it’s not only a good idea for criminal suspects to keep quiet, but it’s also actually a well-established right. Similar rights are protected under the New York State Constitution. 

Remaining silent during interrogations or police interviews 

As a general rule, no one has to talk to the police about the facts of an investigation. However, this area of the law is complicated, and even some non-verbal forms of communication can, under certain circumstances, be incriminating. As noted above, the police are required to give Miranda warnings prior to interrogating a suspect, and they must immediately cease their interrogation once a suspect has invoked his or her right to an attorney. Any statements made after a suspect has invoked this right are generally inadmissible in court. However, this only applies after the police have advised a suspect of his or her Miranda rights, which they are only required to do after placing a suspect under arrest. Statements made while not in custody, may not receive Miranda/fifth amendment privileges.

Queens criminal defense attorney

If you have been arrested or accused of a crime of any kind, you must act quickly to protect your rights. In almost all circumstances, consulting with an attorney is your best defense prior to making a statement, even if you are not charged with a crime. Depending on your charges, a conviction can result in a lengthy prison sentence and hefty fines. In addition, a criminal record can affect your ability to secure employment and housing. Therefore, if you have been charged with a crime, you need experienced legal counsel on your side. At Heiferman and Associates, PLLC, we provide aggressive legal representation to clients throughout New York City, Queens, Brooklyn, Long Island and parts of New Jersey. Backed by extensive experience and working knowledge of New York Penal Law, we are committed to ensuring that you receive the most effective defense possible. Please contact us as soon as possible for a consultation.

Person in hand cuffs

Violations, Misdemeanors, and Felonies in New York: What’s the Difference?

Posted on

Whether you are charged with a violation, misdemeanor, or felony in New York, you face serious consequences if convicted. Possible penalties for these crimes include fines, jail time, and prison time. In addition, a criminal conviction can make it difficult to find work, obtain adequate housing, and receive approval for certain types of loans. In other words, violations, misdemeanors, and felonies are not to be taken lightly. Therefore, if you are charged with a violation, misdemeanor, or felony in New York, please contact an experienced New York criminal defense attorney as soon as possible for assistance. 

Violations 

A violation is the least serious of the three offenses described above. A violation is punishable by up to 15 days in jail, court costs, orders of protection and includes offenses like:

  • Trespassing
  • Harassment
  • Disorderly conduct

Misdemeanors

A misdemeanor is an offense that is punishable by no more than one year in jail. Examples of misdemeanors include: 

  • Assault in the third degree (domestic violence)
  • Criminal mischief in the fourth degree
  • Petit larceny
  • Driving While Intoxicated
  • Aggravated Unlicensed Driving
  • Prostitution
  • Possession of a Controlled Substance
  • Possession of large amounts of marijuana

Misdemeanors in New York are classified as follows:

  • Class A misdemeanor – Punishable by a maximum of one year in jail or three years’ probation and a fine of up to $1,000 or double the amount of the defendant’s gain from the crime. 
  • Class B misdemeanor – Punishable by a maximum of three months in jail or one year of probation and a fine of up to $500 or twice the amount of the defendant’s gain from the crime. 
  • Unclassified misdemeanor – Punishable by between 15 days and one year in jail. 

Felonies  

A felony is a crime for which a sentence of one year or more may be imposed. New York categorizes felonies as class A-I, A-II, B, C, D, and E, with class A being the most serious and class E being the least serious. Felony penalties vary widely, ranging from probation to life imprisonment. In addition, a felony in New York may result in a fine not exceeding the higher of $5,000 or twice the amount of the defendant’s gain from the crime. Examples of felonies in New York include:

  • Murder
  • Rape
  • Burglary
  • Aggravated Assault
  • Robbery
  • Kidnapping 
  • Manslaughter
  • Grand Larceny
  • Identity Theft, Forgery and Other White-Collar Crimes

Contact our New York criminal defense attorneys 

If you or a loved one has been arrested or accused of a violation, misdemeanor, or felony, you need to act quickly to protect your rights. Depending on the charges, a conviction can result in a lengthy prison sentence and other consequences, including losing your eligibility for certain professional licenses and forfeiting your right to vote. In addition, a criminal record can interfere with your ability to obtain employment and housing. At Heiferman and Associates, PLLC, our experienced criminal defense attorneys provide aggressive and efficient legal representation to clients throughout New York City, Queens, Brooklyn, Long Island and New Jersey. Backed by extensive experience and working knowledge of New York Penal Law, as well as New Jersey and Federal criminal laws we will fight to ensure that you receive the most effective defense possible. Please contact us immediately for a consultation. 

A man meeting his criminal defense attorney.

How to Choose the Right New York Criminal Defense Attorney

Posted on

If you have been charged with a crime of any kind in New York, you need a criminal defense attorney who will aggressively fight for your rights and freedom. Given the potential consequences of a criminal conviction, this is not a decision that you should take lightly. Therefore, it is important that you understand how to go about choosing the right criminal defense attorney. Below is some information to help you choose a criminal defense attorney in New York. 

Act fast

First, if you’ve been arrested in New York, you should contact a criminal defense attorney as soon as possible. The legal process can move quickly, so time is of the essence. Even if you have time before your first court date, there is a lot of legwork that must be done to properly prepare your defense. Therefore, the sooner you begin your attorney search, the better.  

Schedule a consultation 

Before choosing a criminal defense attorney in New York, you should schedule a consultation. A consultation provides you an opportunity to discuss your case with your prospective attorney and ask him or her important questions. Following your consultation, you should have a good idea of whether he or she is the right lawyer for you. 

Ask the right questions

After scheduling your initial consultation, you should prepare some questions to ask your prospective attorney. Asking the right types of questions will go a long way in helping you choose the right attorney. Good questions to ask include:

  • How much of your practice is devoted to criminal defense?
  • Have you handled many cases like mine? 
  • What were your past results in handling cases like mine? 
  • Are you familiar with the court in which my case is being tried?
  • How long have you been practicing law?
  • Will you be personally handling my case, or will another attorney do most of the work?
  • Do you charge a flat rate or an hourly fee?

Contact our New York criminal defense attorneys 

If you are facing criminal charges, you must act quickly to ensure that your rights are protected. Depending on the charges, you may be facing a lengthy prison sentence, the loss of your right to vote, and the loss of your eligibility for certain professional licenses and government benefits. In addition, a permanent criminal record can make it difficult for you to obtain employment and find housing. Therefore, it is imperative that you hire an experienced criminal defense attorney to defend you against your charges. At Heiferman and Associates, PLLC, we provide aggressive and efficient legal representation to clients throughout New York City, Queens, Brooklyn, Long Island & New Jersey in state and federal courts. Backed by extensive experience and working knowledge of New York Penal Law and Federal Criminal Statutes/Code, our aggressive and knowledgeable attorneys are committed to balancing the scales of justice, making sure you receive due process, and preserving your freedom. Please contact us today for a consultation.