Criminal Hearings

A criminal defendant has the right, where applicable, to address certain issues prior to trial. Those hearings are as follows:
1. Probable Cause Hearing – This is a pre-trial hearing to determine whether there is probable cause to believe that the Defendant committed the crimes that he is charged with which would enable the prosecution to proceed to trial. This hearing does not determine whether or not a criminal defendant is guilty but rather whether or not there is probable cause as set forth above.
2. Mapp Hearing – A pre-trial hearing to determine if physical evidence was illegally seized.
3. Rosario Hearing – A pre-trial hearing to determine the admissibility of any written or recorded statement made by a person whom the prosecutor intends to call as a witness at trial and which relates to the subject matter of the witnesses’ testimony.
4. Sandoval Hearing – A pre-trial hearing to determine if and/or to what extent the prosecution may use the prior convictions of the defendant for the purpose of impeaching the defendant’s credibility if he/she chooses to testify.
5. Suppression Hearing – A pre-trial hearing upon a motion to exclude evidence under the Criminal Procedure Law section 710 in which the Judge must decide whether or not improper procedure were used to obtained evidence which should therefore be excluded from the trial.
6. Wade Hearing – A pre-trial hearing to determine whether a witnesses’ identification of the defendant is tainted and therefore inadmissible at trial or proper and therefore admissible.
7. Huntly Hearing – A pre-trial hearing to review the manner in which the police obtained a statement or statements from the defendant to determine if the statement or statements were made voluntarily and lawful in nature so as to be admissible at trial.
At issue in a Huntly Hearing is whether the defendant’s statement was made voluntarily. In order to be considered voluntary, the defendant must be read his Miranda Warning if he is in police custody. The Miranda warning enumerates a person’s constitutional rights must be read to that person before initiating custodial questioning by law enforcement. The Miranda warning starts with “You have the right to remain silent……”
If you find yourself charged with a crime or violation of law, you should consult with an experienced criminal attorney to protect your rights and so that you can find out what actions you should take so as not to make a bad situation worse.
As a former Suffolk County Assistant District Attorney who has practiced criminal law for the past twenty-five years, I am in a position to advise you of your rights and I will give you a free consultation to discuss your situation so that you will be in a position to decide if you want to hire me to represent your interests.
Contact my office at (631) 588-3155 to set up your free consultation.

www.jusinolaw.com.

What To Do If You Are Charged With A Crime Or Other Type Of Penal Law Violation

In New York State a crime is defined as a misdemeanor or felony. Depending on the type of misdemeanor, a misdemeanor is punishable by up to one year in jail. A felony, which is more serious than a misdemeanor and carries additional penalties, could land you in jail for many years depending on the level of the felony (a A Felony being the most severe)(an E Felony being the least severe).
In addition to misdemeanors and felonies as addressed in the New York State Penal Law, you can also be charged with a violation of the law such as harassment or disorderly conduct. Violations can carry up to 15 days in jail but a conviction for a violation will not saddle you with a criminal conviction.
In any event, if you are charged with a Penal Law Violation or are being investigated by the police or District Attorney’s Office for a violation of the Penal Law, you should hire an attorney such as myself that is knowledgeable and experienced in criminal law.
Having served as an Assistant District Attorney in Suffolk County from 1989 to 1991, I am well versed in criminal law and appear in the criminal courts in Suffolk County on a daily basis.
Not only have I handled many such cases and resolved them with plea deals, I have also had many many trial throughout my twenty-three year career involving both felonies and misdemeanors that have included drug cases, driving while intoxicated offenses, larceny matters as well as domestic violence cases.
In fact, my last jury trial in 2012 involved my client who was charged with criminal contempt for allegedly violating his wife’s Order of Protection. After a multiday trial, the jury returned a not guilty verdict in favor of my client which also meant that the Order of Protection against my client was vacated.
Another important piece of advice if you are charged with a crime or being investigated by the authorities is to hire an attorney prior to speaking with the police or District Attorney’s office.
Even if you are totally innocent, what you may say to the authorities could be misunderstood or taken out of context which could result in you being charged with a crime any way.
Accordingly, if you find yourself in such a situation you would be wise to contact my office to set up a free consultation to discuss your matter as soon as possible.
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Wasteful Dissipation Of A Marital Asset With Respect to Equitable Distribution

In Levitt v. Levitt, a recent 2nd Dept. case, the Appellate Court ruled that the “Supreme Court should have charged the wife with $73,500.00 in marital waste representing the amount of additional income tax the Plaintiff was required to pay based upon the wife’s failure as of the time of trial to agree to file joint income tax returns for 2009.” Had the wife filed a joint tax return with the husband in 2009, the husband would not have incurred and be forced to pay $73,500.00.
Wasteful dissipation of a marital asset can also be found where one party gambles way marital funds or intentionally damages or destroys a marital asset. When such a situation arises, the Court has the power to order the party that has wasted a marital asset or assets to pay back the other party for their loss with respect to that asset or assets.
Having practiced matrimonial law for over the past twenty years I have come across this situation on numerous occasions where one party going through a divorce either wastes or intentionally damages or destroys a marital asset. It is important to have an experienced and knowledgeable attorney handling your divorce action such as myself because once I ascertain the facts and circumstances of your case, I will be in a position to assess whether wasteful dissipation has occurred and what actions need to be taken.
If you are going through a divorce or would like to commence such an action, I suggest that you contact my office to set up a free consultation so that we may go over your matter and so that I may advise you as to how you should proceed.

www.jusinolaw.com.

Implementing Leandra’s Law In New York State

Effective December 18, 2009 a new class of E-felony offense was signed into law enhancing the penalties for persons who operate a motor vehicle while intoxicated with a child passenger less than sixteen years of age, which carries a penalty of up to four years in State prison.
Leandra’s Law also enhances penalties for driving while intoxicated and causing the death or serious injury to any child or children passengers under sixteen years of age. Operators convicted of aggravated vehicular assault (a Class C Felony) or aggravated vehicular homicide (a Class B Felony) offenses are subject to State imprisonment up to fifteen years for the C felony and twenty-five years for the B Felony
Section 5 of Chapter 496 of the Child Passenger Protection Act or Leandra’s Law effective August 15, 2010 requires that persons convicted of having committed vehicle and traffic law Section 1192 Misdemeanor or Felony driving while intoxicated offenses on or after the date of enactment, (November 18, 2009) and sentenced on or after August 19, 2010, be sentenced to a term of probation or conditional discharge in addition to any sentence of imprisonment or payment of any fine imposed and have an Ignition Interlock Device installed in any motor vehicle they “own or operate.”
The bottom line is that if you have been charged with any driving while intoxicated or driving while impaired offense you should hire and attorney experienced in criminal law and that is familiar with these types of offenses.
As a former Suffolk County Assistant District Attorney and one who practices on a daily basis in the criminal courts of Suffolk and Nassau Counties, these are the types of cases I handle on a regular basis.
Accordingly, if you are charged with such an offense or offenses, you would be well served by contacting my office and setting up a free consultation to discuss your matter.

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Contempt Proceedings in Supreme Court and Family Court – Aggrieved Spouse is not required to exhaust all alternative remedies in certain circumstances.

In Moore v. Moore, 93 A.D. 3d 827, 940 N.Y.S. 2d 875 (2nd Dept. 2012),the Court dealt with the issue where a spouse failed to make payments pursuant to an Order or Judgment in a matrimonial action and where the aggrieved party filed for a contempt finding against the other spouse pursuant to Domestic Relation Law Section 245 to punish that defaulting spouse.
The Court in Moore ruled that the aggrieved spouse is not required to exhaust all alternative remedies where there is proof that alternative remedies would prove ineffective. By alternative remedies, the Court was referring to such remedies such as the aggrieved spouse seeking to have the payments due that party taken directly out of the other parties’ paycheck. Generally speaking, if the defaulting party works for a company on the books, this is something that can usually be done.
However, if the defaulting party is self-employed or works off the books, then this is generally not an option and therefore the Court will not require this measure to be taken by the aggrieved party for a contempt finding against the defaulting party to be upheld.
If you find yourself in a situation where your spouse or ex-spouse is not complying with a Court Order or the Stipulation of Settlement, you need to hire an attorney knowledgeable and experienced in matrimonial practice to represent you so that all of your rights are protected and you have the best chance to obtain a settlement or Court ruling in your favor.
Having practiced matrimonial and family law for the past twenty-two years, I am well versed in matrimonial and family law and will fight hard for your to make sure that your rights are protected and that you have the best chance to receive all that you are entitled to receive from your spouse or ex-spouse.

www.jusnolaw.com.

Orders of Protection in Family Court

When you are thinking about filing a Petition seeking an Order Of Protection in Family Court, there are a number of factors that must be considered. To begin with, you can only file for an Order Of Protection in Family Court if you are related to the Respondent in some way or have a child in common.
For instance, when you file a Petition seeking an Order Of Protection you must place a check in a box in response to the following question “The Respondent and I are related as follows:”
1. We are married;
2. We have a child in common;
3. We are related by blood or marriage;
4. We are in an intimate relationship (not casual, social or business acquaintances);
5. We were in an intimate relationship (not casual, social or business acquaintances);
6. We were married; or
7. We are parent and child.

If you cannot check off one of those boxes, you cannot file a Petition seeking an Order Of Protection in Family Court. This does not mean that you cannot get an Order Of Protection against that individual in Criminal Court but that is for another blog.
In addition to the above, you can only file a Petition for an Order Of Protection if the Respondent, the person against whom you are seeking to obtain an Order Of Protection, has committed an Article 8 Violation against you or your child or children. By Article 8 I am referring to the pertinent part of the Family Court Act.
Accordingly, when you file a Petition, you must check off a box or boxes in response to the following question: “Respondent committed the following offense (s) against me and/or my children, which constitute(s):”
1. Disorderly conduct;
2. Harassment in the First or Second Degree;
3. Aggravated harassment in the Second Degree;
4. Assault in the Second or Third Degree;
5. Criminal mischief;
6. Sexual abuse in the Second or Third Degree;
7. Strangulation;
8. Menacing in the Second or Third Degree;
9. Reckless endangerment;
10. Stalking;
11. Attempted assault;
12. Sexual misconduct;
13. Forceful touching;
14. Criminal obstruction of breathing or circulation

Even if someone has cursed at you or said horrible things to you, unless what they have done fall under the category of an Article 8 violation, you will not be able to obtain an Order Of Protection against that individual. Cursing someone out or yelling at them without threatening them is protected speech and will not get you an Order Of Protection.

The procedure to obtain an Order Of Protection is as follows:

1. You either hire an attorney to file a Petition on your behalf or you go down to the Family Court Clerk and ask for the appropriate paperwork and fill out the Petition yourself. It is important to note that in most instances, you are on your own when filing a Petition without an attorney. In other words, if you do not do it right, the Petition may be thrown out because you did not fill out the Petition properly. Even if you hire the best lawyer on Long Island, your Petition may be dismissed if it was not done properly.

2. Once your Petition is filled out and processed by the Family Court Clerk, you will go before a judge who will hear your application and then decide if you are entitled to an
Ex-parte Order of Protection. An Ex-parte Order of Protection means one sided because the Respondent has not yet been served the Petition and therefore he or she does not appear in Court with you the first time.

3. If your Petition is dismissed, you will go home empty handed. If your Petition is granted, then you will need to speak with the Sheriff’s office in the building to give them all of
the necessary information so that may serve the Respondent as soon as possible.

4. If you are given a Temporary Order Of Protection by the Judge or Referee you will be given a follow-up date for your matter for a conference where the Respondent will be present with you in Court.

5. If at that Court Conference or conferences subsequent thereto it is apparent that the matter will not settle, the Judge or Referee will give you a hearing date where the matter will be tried and the Judge will make a decision as to whether or not you keep your Order Of Protection. If so, what type of Order Of Protection you will have from that date forward. By that I mean either a “stay away” Order Of Protection” or a “refrain from” Order Of Protection”.

With a stay away Order of Protection, the Respondent is ordered to stay away from you and not have any contact with you. With respect to a refrain from Order Of Protection, the Respondent will be able to be around you, but will not be able to threaten or intimidate you.

Another way the matter can be resolved is by settlement where you and the Respondent agree to settle the matter either by withdrawing your Petition or the Respondent agreeing to some type of Petition going forward.

Whether you are the Petitioner or Respondent with respect to an Order Of Protection, it is in your best interest to hire an experienced and knowledgeable attorney that has handled numerous matters involving Orders of Protection. If not, you run the risk of either not getting the Order Of Protection you are seeking or, if you are a Respondent, having an Order Of Protection entered against you which could affect you in many ways.

For instance, if you have an Order Of Protection against you, it could affect you visiting or even seeing your children. Also, you will not be able to be in possession of any weapons if you have an Order Of Protection against you. If you are in law enforcement or are required to carry a weapon, this could affect your livelihood.

Therefore, if you find yourself in need of an Order Of Protection or someone has filed a Petition seeking an Order Of Protection against you, contact my office to set up your free consultation so that we may discuss your matter in detail so that I may advise you as to how you should proceed. I have handled thousands of Family Court Matters in my twenty three (23) year career and have conducted dozens of hearings involving Order of Protections. I am certainly in a position to help you with your matter.

www. jusinolaw.com.

CUSTODY-LITITGATION BETWEEN PARENT AND NON-PARENT

In FLORES v. FLORES , a January 2012 decision handed down by the Appellate Division, Second Department, the Court ruled “a biological parent has a superior right to custody of his or her child absent a showing that the parent relinquished parental rights through surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances.”
In FLORES v. FLORES the Court ruled that the maternal grandmother sustained the burden of demonstrating extraordinary circumstances given the fact that there was a sound and substantial basis found in the record at trial to support the Family Court’s Award of custody to the maternal grandmother as in the child’s best interests.

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MODIFYING CUSTODY AND VISITATION ARRANGEMENTS UPDATE (2012)

In DIAZ v. DIAZ, a recent Appellate Division, second department decision dated July 18, 2012, the Appellate Division held “that existing custody and visitation arrangements may be modified only upon a showing of a change in circumstances warranting such modification to protect the child’s best interest.”
In DIAZ v. DIAZ the Appellate Division ruled that there was a “change in circumstances where the father engaged in a course of conduct of intentionally interfering with the mother’s relationship with the children, which was so inconsistent with the child’s best interest as to raise a strong probability that the offending party is unfit to act as custodial parent.”
Accordingly, the Court ruled that there was a “sound and substantial basis found in the record to award the mother sole custody.”
In another recent case, GIANNOULAKIS v.KOUNALIS, another Appellate Division Second Department Decision, using the same standard as above, the Court ruled that the “non-custodial parent is entitled to meaningful visitation and the denial of visitation must be based upon substantial evidence that such visitation will be detrimental to the child’s welfare.”
The Appellate Division further ruled that the “Family Court properly found that the father failed to establish that change in circumstances warranted modification of visitation provision denying him visitation.” “The Forensic Evaluator, who interviewed the parties, concluded that the father, with a history of abusive behavior, failed to take responsibility for his actions or rectify his behavior.” “Father’s offensive demeanor during the hearing and the fact that he was arrested for domestic violence while the proceeding was pending supports the Family Court’s determination that therapeutic visitation was not in the child’s best interest.”

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EMAIL – SENDER BEWARE !

In today’s ever advancing technological innovation in the communications field, email has become a simple, fast and effective way to communicate with others. However, you should be aware of the potential consequences inherent in communicating via email. Email is the least secure method of written communication between two or more parties. You should have no expectation of privacy when you send an email because of the way your email travels through the Internet.

The following excerpt from an article titled “Email Privacy Concerns” from Findlaw.com which is available at http://consumer.findlaw.com/online-scams/email-privacy-concerns.html. This article is a must read article for all who engage in emailing:

Emails are stored at multiple locations: on the sender’s computer, your Internet Service Provider’s (ISP) server, and on the receiver’s computer. Deleting an email from your inbox doesn’t mean there aren’t multiple other copies still out there. Emails are also vastly easier for employers and law enforcement to access then phone records. Finally, due to their digital nature, they can be stored for very long periods of time, so think twice before writing something down in an email you don’t want others to see.

The Fourth Amendment, the Electronic Communications Privacy Act, and the Patriot Act

Email privacy is derived from the Fourth Amendment to the U.S. Constitution and is governed by the “reasonable expectation of privacy” standard. Unfortunately, given the open nature of email mentioned above (passing through several computers and stored at multiple locations), the expectation of privacy may be less for email, especially email at work, then for other forms of communication.

Emails are also governed by the Electronic Communications Privacy Act (ECPA) and the Patriot Act. Although the ECPA originally set up protection (such as a warrant requirement) to protect email, those protections have been weakened in many instances by the Patriot Act. Even , where the protections remain under the ECPA, emails lose their status as a protected communication in 180 days, which means a warrant is no longer necessary and your emails can be accessed by a simple subpoena.

So, an opposing attorney can easily get your emails from your carrier with a simple subpoena.
Therefore, you can live to regret what you emailed and there is no way of deleting it from the entire internet. It can haunt you forever. You need to use caution when using email as a way to communicate. What may seem like an innocent remark or joke may not be viewed as such by others.

Therefore, the Law Offices of Phillip J. Jusino and Associates advises their clients or anyone involved in litigation, that before they send an email message, they carefully read the above referenced Findlaw.com article in its entirety and then consider the lack of privacy and security concerns inherent in email communications before they put private thoughts, attach questionable pictures or give details about an ongoing case in an email communication to any other person.
www.Jusinolaw.com
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GRANDPARENT VISITATION UPDATE (2012)

In GORT v. GULL, a case decided by the Appellate Division, second department in June of 2012, the Appellate Division held that the a Court must make a two part inquiry pursuant to Domestic Relations Law Section 72(1) in determining grandparent visitation: 1. Whether the grandparent has standing based on the death of a parent or equitable circumstances that would permit the Court to entertain the Petition and, if grandparent has the right to be heard, then. 2. Whether visitation would be in the child’s best interest.
In GORT v. GULL the Appellate Division ruled that the Family Court providently exercised discretion in concluding that the paternal grandmother had standing to seek visitation because of equitable circumstances under Domestic Relations Law Section 72(1) and that the Family Court properly determined that it was in the child’s best interest to grant grandmother’s Petition for visitation to the extent of allowing her any visit that the child’s father chooses not to use as the record shows that the grandmother has a loving relationship with the child and the animosity between the paternal grandmother and the child’s mother is not a basis for the denial of visitation to the grandmother.
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