Asserting Self-Defense for a Violent Crime Charge

When charged with a crime, the accused is innocent until proven guilty. This is a pillar of the U.S. justice system. Just because the burden of proof initially rests squarely on the prosecutor’s shoulders, however, does not mean that the defense team should sit back and wait to see just how strong of a case the prosecutor can present without taking action to weaken that case in any way possible. The defense strategy will largely rest on the nature of the crime, the circumstances surrounding the crime, and other relevant factors. One commonly employed defense strategy when the crime is one that is violent in nature is for the defendant to assert self-defense. Certain things must be accomplished in order to effectively assert self-defense when the defendant is charged with a violent crime.

How to Effectively Assert Self-Defense When Charged with a Violent Crime 

Self-defense is considered to be an affirmative defense. This means that the defendant is essentially saying that the action the prosecutor is accusing him or her of taking did, in fact, happen, but it should not be considered illegal because of extenuating circumstances. In cases where the defendant is charged with a violent crime, such as assault or battery, the defendant may assert self-defense, which is a claim that yes, they committed a violent act, but it should not be considered illegal because the defendant was defending himself or herself from an imminent threat of harm.

In order to effectively assert self-defense, however, the defendant carries the initial burden of proving that the defense is substantial. This means that the defense team must show that there was an actual and imminent danger or risk of harm to the defendant which would justify the defendant using physical force to neutralize the threat.  Once the defense is raised by the defense, the prosecution is required to prove beyond a reasonable doubt that the defendant was not acting in self-defense.

Under the New York Penal Code, self-defense is also known as “justification.” When self-defense is successfully asserted, the defendant is justified in using physical force to defend himself or herself. New York law says that this is the case when a person reasonably believes it is necessary to defend himself or herself against the use or imminent use of physical force by another person.

The use of force against another in the name of self-defense, however, must be proportional to the imminent threat of force. Only that level of force reasonably necessary to neutralize the threat of imminent harm is permissible pursuant to self-defense. If an aggressor was moving in to punch you and you pulled out a knife on your attacker, this is likely to be seen as a disproportionate reaction to the imminent threat and, therefore, is not likely to be covered under a self-defense assertion.

Furthermore, the fact that New York is a “duty to retreat” state can create another big obstacle in successfully asserting self-defense. The duty to retreat means that, prior to acting in self-defense, a person is obligated to take reasonable measures in order to reduce the threat of harm. This may include running away or calling law enforcement. Duty to retreat states are the opposite of “stand your ground” states which place no duty to retreat in the face of a physical threat.

Syracuse Criminal Defense Attorneys

Are you facing a criminal charge? Time is of the essence. Do not hesitate to get in touch with the dedicated criminal defense team at CDH Law. Contact us today.

Isn’t Pleading Not Guilty the Best Defense Strategy?

When you are facing criminal charges, your mind can scramble to process what is going on and what will happen to you. You will likely want to know in as much detail as possible what your options are for proceeding and what the defense strategy would look like should your case go to trial. You may think that asserting innocence will be enough. You are innocent until proven guilty in the U.S. criminal justice system after all, right? Well, yes, this is true, but a sound defense strategy will involve more than you simply pleading to your innocence on the witness stand.

Isn’t Pleading Not Guilty the Best Defense Strategy?

There is the presumption of innocence in criminal cases. A defendant is declared innocent until and unless the prosecution can prove guilt beyond a reasonable doubt. Merely asserting innocence, however, is a big gamble that no criminal defense attorney would risk. It has to be more than a mere assertion. The prosecution will continue to paint and try to support a case that the defendant is guilty of beyond a reasonable doubt. The defense, on the other hand, should work to bring as much supporting evidence to cast guilt into doubt and to support the assertion of innocence.

Supporting an assertion of innocence can be accomplished in a number of ways. For instance, an alibi defense can be solid grounds for supporting a claim of innocence. With an alibi defense, the defendant claims that he or she could not have possibly committed the crime in question because he or she was elsewhere and doing something else at the time the crime occurred. To support an alibi, witnesses as to the defendant’s whereabouts at the time of the crime may be presented as well as security camera footage of the defendant at a different location or something like a receipt showing that the defendant was at a different location at the time the crime was committed.

In addition to supporting a claim of innocence through alibi evidence, the defense team is often best served by pursuing ways to undermine the strength of the prosecution. Casting doubt on the prosecution’s claims and undermining the strength of any evidence the prosecution may present in the case can go to great lengths in undermining the prosecution’s pursuit of proving the case beyond a reasonable doubt. Undermining the prosecution’s case can be accomplished through things such as the presentation of witnesses and expert witnesses that present a different perspective than those produced by the prosecution’s witnesses. It can also be accomplished when cross-examining a witness and undermining the witness’s credibility. Additionally, there are ways to seek exclusion of evidence the prosecution wishes to use in its case. In criminal cases, constitutional violations made by law enforcement officers against the defendant can lead to significant pieces of evidence being declared inadmissible at trial.

Syracuse Criminal Defense Attorneys

Have you been charged with a crime? There is too much at stake to delay. Talk to the dedicated criminal defense team at CDH Law. Contact us today.

How to Use Constitutional Violation in Your Defense

While being charged with a crime can be overwhelming, to say the least, it can be important not to lose hope. There may be a variety of criminal defense strategies available that can lead to things like your charges being reduced or even tossed out altogether. One of the most effective strategies, should it be relevant to a particular case, is the defense strategy which uses constitutional violations. You see, all of us have guaranteed protections under the U.S. Constitution. This holds true regardless of whether or not you are being charged with a crime. In fact, it remains true regardless of whether or not you are guilty of a particular crime. When constitutional violations occur, there are consequences that can have significant impacts on your criminal case intended to help rectify the violation.

How to Use a Constitutional Violation in Your Defense

It may surprise you, or it may not, to find that constitutional violations are particularly common when criminal charges and criminal trials are concerned. The relevant violations can occur from the point of arrest, through gathering evidence, and all the way through trial. When effectively pinpointed and asserted, a constitutional violation can lead to critical evidence or a confession being thrown out. Because the burden rests on the prosecution to prove guilt beyond a reasonable doubt, key evidence or a confession being tossed out can often lead to a significant weakening in the prosecution’s case which can, in turn, lead to charges being dropped or reduced. Furthermore, constitutional violations can also be grounds for successfully bringing an appeal. 

The Fourth Amendment of the Constitution guards against unlawful search and seizure. Although there are exceptions, in order for law enforcement to conduct a search of a home or a vehicle, a warrant or probable cause to conduct the search is required. Without probable cause, a warrant, or an exception to the warrant requirement, the search will likely be declared unconstitutional. As a result, it is likely that evidence obtained as a result of the illegal search will be deemed inadmissible at trial. Again, having evidence declared inadmissible can have significant impacts on the prosecution’s case. In fact, it can even lead a prosecutor to drop charges or reduce the criminal charge substantially.

The Fifth Amendment is the right a person has against self-incrimination. It is the founding basis for Miranda warnings. Law enforcement is required to read the defendant his or her Miranda rights during the arrest if they intend to ask questions of the defendant. This includes informing the defendant of the right to remain silent and that anything he or she does or says can be held against him or her in court. If a defendant provides evidence or a confession after arrest and in response to interrogation, and law enforcement failed to read Miranda warnings, then all of it can be deemed inadmissible. Again, this can lead to charges being dropped, an acquittal, or a successful basis for filing an appeal.

Criminal Defense Attorneys

Have you been charged with a crime? Do not hesitate to talk to the trusted team at CDH Law. Contact us today.

What Civil Liberties Do Felons Lose?

Crimes are categorized based on the severity of the offense. At the top are felonies. Felony crimes are considered to be crimes of a very serious nature and the consequences for a felony conviction are correlated with the severity of such crimes. The New York legal code considers felonies to be those crimes that are punishable by death or a period of imprisonment exceeding one year in duration. New York is notoriously tough on crime and prosecutors will work tirelessly and with the full weight and resource of the government to secure felony convictions.

Those convicted of felonies stand to lose a great deal. Yes, they will face steep fines and extended periods of incarceration. Convicted felons also face the stigma of eventually being released into a society that will often view them with great mistrust and trepidation. Not only will a felony conviction on a person’s record jeopardize his or her employment prospected and housing options, but a convicted felon may have trouble even doing such things as opening a checking or savings account at a financial institution. On top of all of this, felons will lose certain civil liberties upon conviction. We will talk more about this loss or rights here.

What Civil Liberties Do Felons Lose?

While the specific civil liberties and right to restore civil liberties lost upon a felony conviction will vary from state to state, some rights will be lost forever and some may be restored. In the state of New York, a convicted felon will lose several of the rights and privileges that are granted to American citizens, also known as “civil liberties” or “civil rights.” For instance, the general rule in New York is that you can no longer vote after incarceration or while on parole or probation due to a felony conviction. Once you have completed your sentence, however, your voting rights are automatically restored. You will still need to re-register in order to get access to this restored right but doing so will not require any special documentation. This automatic restoration of a felon’s right to vote is very new to New York. In fact, Governor Cuomo signed the legislation that granted felons automatic restoration of the right to vote in all elections back on May 4th of 2021.

In addition to losing the right to vote, those with felony convictions in New York are also prevented from being able to legally buy and possess firearms. This right may be restored by a pardon. Alternatively, the right may be restored by a Certificate of Relief from Disabilities or Good Conduct. Otherwise, the bar on the right to purchase a firearm will stand indefinitely.

There are several other rights a person will lose upon conviction of a felony. For instance, he or she will no longer be able to sit on a jury. He or she will be excluded from welfare as well as being barred from obtaining federally funded housing. Those convicted of felonies also face exclusion from obtaining certain professional and operator licenses.

Criminal Defense Attorneys

You do not have to let a felony charge turn into a felony conviction. Too much is at stake to try and go it alone. Get the dedicated criminal defense team at CDH law on your side. We will fight for you. Contact us today.

What Is Hearsay?

“Objection! Hearsay!” Have you heard this shouted in some of your favorite TV legal dramas? Most of us have. What exactly, however, does this mean? Hearsay refers to a central rule of evidence and a complicated one at that. While conversationally, people may refer to hearsay as secondhand information, the implications in the legal world are much deeper than that. Let’s take a deeper look here at what hearsay actually means.

What Is Hearsay?

It can be important to understand hearsay, at least in part, as it can play a central role in the admissibility of key evidence at trial. Statements deemed to be hearsay will be considered inadmissible in court. So, what is hearsay? It is an out-of-court statement used to prove the truth of the matter asserted. Huh? Yes, do not worry. The hearsay rule is confusing and something that law students and lawyers alike have grappled with.

To understand hearsay, it can be important to go back to the reason the hearsay rule exists, the reason why hearsay is often considered inadmissible. The hearsay rule is in place because hearsay can be so unreliable. Statements made under oath in court that can be cross-examined by attorneys are considered to be more reliable than statements made outside of the courtroom where the validity of the statement would be difficult to challenge effectively.

Hearsay comes up when a witness presents evidence of a statement made by someone else that is offered in order to prove the truth of the matter asserted. A statement can be either oral or written. The most complicated part of hearsay to understand is whether the statement is offered to prove the truth of the matter asserted. This means that a statement relayed by a witness may be inadmissible hearsay if offered for one purpose, but not for another purpose. In this situation, the judge will admit the hearsay if offered for a different purpose and instruct the jury accordingly.

Hearsay is seen as problematic because the witness is relaying a statement made outside of court, said by someone else. The reliability of the statement is not something that can be credited to the witness. The reliability of the statement rests with the person who said it, who is not on the witness stand under oath.

As a general rule, as previously stated, hearsay is inadmissible evidence in court. There are, however, a variety of hearsay exceptions where a statement deemed to be hearsay will be admissible in court. If an attorney makes a hearsay objection, a statement is deemed to be hearsay, and there are no applicable exceptions, the judge will not allow the statement into evidence. One of the most significant hearsay exceptions is the party admission exception. With this exception, one side can offer statements made by the opposing party. This remains true even if the opposing party made the statements out of court.

Syracuse Criminal Defense Attorneys

Confused? Yes, hearsay and many other criminal law and rules of evidence tend to send peoples’ minds spinning. Our knowledgeable criminal defense team at CDH law is well versed in the laws and procedures that impact our clients. We use our experience and understanding to fight for them. Contact us today.

How to Appeal in a Criminal Case

If you have been convicted of a crime and sentenced, you may feel defeated and without hope. There may be, however, several different ways for you to challenge your conviction. One such way is through a criminal appeal.

How to Appeal in a Criminal Case

The court you appeal your case to will depend on several factors, including the level of crime of which you have been convicted. You see, there are different court levels in New York. The trial courts form the lowest level. They are considered to be the finders of fact. Convictions and sentences are made at the trial court level. At the appellate level, the courts are not tasked with fact-finding, but they do review the legal decisions rendered at the trial court level.

If you were convicted of a misdemeanor, you can file an appeal of your conviction in the local county court. If you were convicted of a felony, you can take your appeal to the Appellate Division. Which of the four Appellate Divisions will hear your case depends on your county. Furthermore, you may be able to appeal your case to the New York Court of Appeals, the highest court in the state. While a criminal defendant does not have the automatic right to take a case to the Court of Appeals, he or she may be and must be granted permission to appeal to the Court of Appeals. Be forewarned, however, that most of the applications made to the Court of Appeals to hear a case are denied. Approved applications are generally reserved for those cases where an important question of law arises or there was a dissenting opinion in the court decision below.

To appeal your New York criminal court conviction, you must file your notice of appeal. Not only must this notice of appeal be properly drafted, but it must also be filed in a timely manner, and served. The notice of appeal, which memorializes in writing your intent to appeal your conviction, is different from an appellate brief that will be later filed and present your arguments to raise on appeal. It must be served within 30 days of your sentencing and failure to meet this deadline could mean dismissal of your appeal. It should be noted that it is generally a good idea to go ahead and file a notice of appeal before the allotted time runs out even if you are unsure as to whether you really want to appeal. Should you later decide not to appeal, no harm is done by simply filing the notice. Timely filing the notice, however, keeps the option open for you.

Your notice of appeal must include your name as well as the docket number or indictment number associated with the case you are appealing. It should also indicate which court you are appealing from and whether the appeal is seeking to address the judgment or sentence or both handed down by the trial court. Two copies of the notice of appeal must be filed with the clerk of the criminal court in which your sentence was imposed and you must have acopy served on the prosecutor.

Criminal Defense Attorneys

Talk to the knowledgeable criminal defense team at CDH law about your options for post-conviction relief. That guilty verdict does not have to be the end of the road. CDH Law is here for you. Contact us today.

What Is the Burden of Proof in a Criminal Case?

The burden of proof, regardless of whether it is a civil suit or a criminal trial, is the burden that the prosecution or plaintiff must meet in order to be successful in the legal pursuit at hand. For prosecutors in a criminal case, they are looking to meet the burden of proof in order to secure a guilty verdict. The burden of proof they carry, however, is the highest one in U.S. law. Here, we will talk more about the burden of proof in a criminal case.

What Is the Burden of Proof in a Criminal Case?

Criminal defendants facing any level of charge, from misdemeanors to felonies, are all innocent until proven guilty in the eyes of the legal system. It may not feel like it as you confront this system, but it remains a fundamental standard of U.S. law. In order to prove a defendant guilty of criminal conduct, the prosecution must prove guilt “beyond a reasonable doubt.” The beyond a reasonable doubt burden of proof is the highest standard of proof there is and with good reason. The potential penalties a person faces when confronted with a criminal charge are steep and can result in loss of personal freedoms, civil liberties, assets, and so much more.

Proving that a defendant committed a crime beyond a reasonable doubt means that each individual element of the crime must be proven beyond a reasonable doubt. While the beyond a reasonable doubt burden is meant to be steep, it is by no means meant to be an impossible burden for the prosecution to carry. The prosecution is not meant to have to dispel any possible doubt. The burden itself says that only “reasonable” doubt must be eliminated to be successful.

The burden of proof starts and may very well stay with the prosecution. This, however, depends on other things at play during trial, such as the defense strategy. If the defense team asserts an affirmative defense, the burden of proof will shift momentarily  to the defense. An affirmative defense is one where the defense essentially says “Yes, but…” The defense is saying that the defendant may have engaged in the conduct alleged by the prosecution, but it was not criminal (or deserves a lesser criminal charge) because of extenuating circumstances. One of the most commonly mentioned affirmative defenses is self-defense when the defendant has been charged with a violent crime. In this example, the defense would be saying that the defendant’s behavior was justified and not criminal because he or she was defending himself or herself against an aggressor.

Should an affirmative defense be asserted, the burden of proof shifts to the defense. The burden in successfully asserting an affirmative defense will vary based on jurisdiction. Often, it is a preponderance of the evidence standard. The defense must prove through the presentation of reliable evidence that the affirmative defense is valid. This burden of proof is, of course, not as heavy as the beyond a reasonable doubt standard.  Once the burden of proof is carried to assert the defense, then the burden shifts back to the prosecution to disprove the defense beyond a reasonable doubt.

Criminal Defense Attorneys

There may be a great deal of legal jargon thrown your way if you face criminal charges. While it can be overwhelming, it can also be important to understand your rights and what you are up against. The criminal defense team at CDH Law can provide you with trusted legal guidance as well as a fierce defense in any criminal matter you may face. Contact us today.

What Is Covered by Attorney-Client Privilege?

Some people may have a vague sense of attorney-client privilege. To most, it may appear as some sort of expansive, invisible shield that keeps anything that goes on between them and their criminal defense attorney hidden. While the attorney-client privilege does offer significant protection surrounding communications between a client or a potential client and attorney, it is critical to understand the nature of this protection as well as its limits.

What Is Covered by Attorney-Client Privilege?

Generally speaking, communications between an attorney and a client, or a potential client, are privileged. This means that the communications must remain confidential. The privilege is held by the client and so only the client has the authority to waive the privilege. Attorney-client privilege was established to encourage a trusting relationship between attorney and client and because it is widely recognized that it is important for a client to be able to freely discuss issues and concerns with his or her attorney.

Let us discuss more specifically what is covered by the attorney-client privilege. All private communications where a client or potential client seeks advice from a lawyer on a legal issue are protected from disclosure unless it fits into an exception to the privilege. The fact that the communication must be private is important to note. Communications that are made in the presence of others will not be considered privileged. If a client talks to his or her attorney knowing that other people are listening, it will not be considered private and, therefore will not be covered by attorney-client privilege. The same is true for electronic communications. If a client sends his or her attorney an email and CC’s someone else on the email, it will not be covered by the privilege.

It is also important to be aware that, while communications themselves are protected, facts, in general, are not protected. For instance, while you may not be forced as a witness to answer a question about what you told your lawyer about what happened at a certain time and place, you can be forced to answer a question about what happened at a certain time and place (assuming you do not have a separate privilege against self-incrimination under the Fifth Amendment to the Constitution). The communication is privileged, not the facts. Additionally, physical objects are not covered by attorney-client privilege. If you think stashing an instrumentality of a crime with your attorney will protect you, think again. Turning items over to your attorney does not mean they will be safeguarded by attorney-client privilege.  

Criminal Defense Attorneys

Attorney-client privilege is a cornerstone of the criminal justice system in the U.S. The legal system has recognized that the ability of a client to freely communicate with his or her attorney outweighs the desire of a court to have unrestricted access to all of the information gatherable. At CDH Law, we hold the attorney-client privilege to be a sacred thing, laying the solid relationship with form with our clients as we relentlessly defend them against any criminal charge they may face. Contact us today.

What Is the Difference Between a Misdemeanor and a Felony?

New York falls in line with most other states in dividing crimes into two central categories. There are misdemeanors and felonies. Both levels of crimes can carry significant penalties. There are, however, some distinctive features of misdemeanors and felonies that should be noted.

What is the difference between a misdemeanor and a felony?

Generally speaking, misdemeanors are considered to be crimes that are not as serious as felonies. The fact that misdemeanors are considered to be less serious than felonies is, in turn, reflected in the potential penalties one faces if convicted of such a crime in the State of New York. Felonies tend to carry longer prison sentences and bigger fines.

In New York, misdemeanors are separated into three classes. Class A misdemeanors are considered to be the most serious class. They are punishable by up to one year in jail and up to three years of probation. Furthermore, Class A misdemeanors carry fines upwards of $1000.00 or, alternatively, twice the amount the defendant gained as a result of the criminal act. One example of a Class A misdemeanor is assault in the 3rd degree.

The next level is Class B misdemeanors which carry a potential penalty of up to 90 days in jail and up to one year probation. Furthermore, Class B misdemeanors carry fines upwards of $500 or, alternatively, twice the amount the defendant gained as a result of the criminal act. One example of a Class B misdemeanor is prostitution.

The last category of misdemeanors is referred to as “unclassified misdemeanors.” The penalties for the misdemeanors found in this category are set forth by the specific laws that define each unclassified offense. One example of an unclassified misdemeanor is reckless driving.

Unlike misdemeanors, felonies are divided into five separate classes. Class A felonies are considered to be the most serious and those charged with a Class A felony face a potential lifetime prison sentence. An example of a Class A felony is murder in the 1st degree. The next level of felonies are Class B felonies. Class B felonies carry a potential punishment of up to 25 years in prison. Sex trafficking is considered to be a Class B felony.

The next class of felonies, a Class C felony, can carry a potential sentence of up to 15 years in prison. Aggravated possession of a weapon is considered to be a Class C felony. Next, you have Class D felonies that are punishable by up to 7 years in prison. Aggravated identity theft is considered to be a Class D felony. The last class of felonies is Class E. A Class E felony carries a potential sentence of up to 4 years in prison. Defrauding the government is considered to be a Class E felony.  These are just examples, but there are many types of felony and misdemeanor offenses and it is important that one discuss the level of offense charged with an attorney very early in the criminal justice process.

It is also important to note that felonies, unlike misdemeanors, can result in the loss of civil liberties such as the right to vote, the right to run for public office, the right to own a firearm, and can also result in the loss of the ability to hold certain professional licenses.

Criminal Defense Attorneys

While misdemeanors and felonies can vary in the severity of their sentences, both can have far-reaching impacts on a person’s life. Having a criminal record can have adverse consequences on everything from job prospects to the ability to secure housing. At CDH Law, our team of dedicated criminal defense attorneys is here to fight for you and your future. Contact us today.

How to Prepare for Cross-Examination

Criminal trials are complex and, of course, can be very stressful, particularly for the defendant. If you are called as a witness in a criminal trial, whether you are the defendant or not, you should be as prepared as possible for what is going to happen, or what might happen, when you are on the stand. Witnesses are called to the stand by either the prosecutor or the defense. On direct, the side that called the witness first gets to question him or her. Next, the other side has the opportunity to cross-examine the witness. Cross-examination is, generally speaking, limited to questions relating to matters that were raised during direct examination. The main purpose of cross-examination is most often to undermine the credibility of a witness called by the other side. Witnesses should, therefore, be prepared for a difficult and sometimes heated line of questioning.

How to Prepare for Cross-Examination

In preparing for cross-examination, a witness should focus on a few critically important facts reviewed with the attorney who will be calling them to the stand. A detailed narrative that a witness will have to recall when under the pressure of cross-examination is not a viable situation. The witness is likely to freeze up or have the narrative sound disingenuous or rehearsed. The witness should be prepared to deliver the “headline” of why he or she was brought to testify in the first place. Come to court with the important things at the top of your mind. Then, when on the stand, you will be more likely to get that important information right out front as opposed to it being lost in a long speech.

Witnesses are under a lot of pressure as it can often feel like the fate of the defendant rests on their shoulders. To minimize the pressure and fear that a witness can face, a witness should remember that there is a safety net built in should they struggle with cross-examination. The attorney who initially calls a witness has an opportunity to question the witness after cross-examination.  This is called re-direct examination. During re-direct, an attorney can often mitigate much of the damage a witness may have caused during cross-examination.

To prepare for cross-examination, a witness should also be mindful of body language. Be prepared to use confident body language while on the stand. Make eye contact and keep your head up while being questioned. Additionally, a witness should plan to dress conservatively for court. It can also be beneficial for a witness to get into the right mindset for cross-examination. It can be uncomfortable to be questioned by the attorney for the other side, particularly in a situation where the attorney is trying to undermine the credibility of the witness. A witness should make every attempt to avoid open hostility toward opposing counsel. In fact, the demeanor of the witness should not change when being questioned by either side. A jury will notice a shift in demeanor and likely hold it against the witness in one way or another.

Criminal Defense Attorneys

At CDH Law, we take great care to prepare everyone involved in a criminal trial. We know that a trial can be won or lost in these kinds of important details and we make every possible effort to help ensure all witnesses are properly prepared for trial. We do this because of our commitment to mount the strongest possible defense for our clients facing criminal charges. Contact us today.