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Get Out Of Jail Free?

New York State bail laws may change.

In January, New York State bail laws came under scrutiny when Governor Andrew Cuomo joined a growing chorus of voices calling for the end of bail as we know it. As part of a larger package of criminal-justice reforms, Cuomo proposed eliminating the cash bail requirement for those in the state facing misdemeanors and nonviolent felony charges.

“For far too long, our antiquated criminal justice system has created a two-tier system where outcomes depend purely on economic status—undermining the bedrock principle that one is innocent until proven guilty,” Cuomo said.

Divided Opinions

Critics of the New York State bail laws contend that cash bail requirements are unfair and may even violate defendants’ constitutional rights, both because they have not yet been convicted of crimes, and because the system is rigged in favor of those with the means to pay their way to freedom.

Proponents of the current New York State bail laws argue that it is necessary to ensure that defendants who might be flight risks will show up in court. Among those who oppose Cuomo’s proposed reforms are many district attorneys and police chiefs, along with, not surprisingly, for-profit bail bond companies. In addition, many criminal defense attorneys, including those at LaMarche Safranko Law, oppose the proposed bail changes because the posting of bail, and the potential of losing something, place an onus on a criminal defendant not only to appear in court, but to remain in contact with their lawyer.

Under New York Criminal Procedure Law, when an order of bail is a matter of the judge’s discretion, among the factors that should be weighed are the principal’s “character, reputation, habits, and mental condition”; employment and financial resources; family ties and length of residence in the community; criminal record; and previous record in responding to court appearances.

In lieu of bail, Cuomo’s reforms would direct defendants to be released on their own recognizance or under non-monetary conditions, including restrictions on travel, a requirement to check-in regularly with a pretrial services agency, and a requirement to turn in any guns in the defendant’s possession. Currently, these release opportunities are frequently used outside of the New York City area as an alternative to the imposition of bail.

Cuomo’s proposal would allow a judge to jail someone for five days in specific types of offenses: domestic violence, “serious violence,” “witness intimidation,” willfully failing to appear in court and committing a new crime while out on release. After the five-day detention period, defendants would be entitled to a hearing to determine whether they should be released with non-monetary conditions pending trial.

Bail Reform: Not In Budget, But Not Forgotten

When Cuomo released his proposed budget at the end of March, however, advocates were disappointed to find that the criminal-justice reforms—including the bail proposal—were not included. That may be because they would have been blocked from a floor vote by the Republican-controlled Senate; a situation that has since changed. Well, sort of.

Democrats won two special elections in late April, giving them a theoretical 32-31 advantage in Senate seats. In practice, however, one of those seats belongs to Simcha Felder, a Brooklyn Democrat who has announced he will continue to caucus with Republicans, with whom he sides on many of his constituents’ issues.

Cuomo—who believes there are Republicans who will support bail reform if it comes to the floor—wrote an open letter to Felder asking him to “join the 31 other registered Democrats, so we can enact meaningful legislation.” Cuomo said that keeping it from a vote does a disservice to constituents who don’t know where their legislators stand on the issue.

If you are facing a criminal trial, LaMarche Safranko Law can help. Call us at (518) 982-0770 or visit us online.

Interrogation Law: The Cameras Are On

New York interrogation practices must now be recorded on video,

A new state law requiring law enforcement agencies to video record custodial interrogations with individuals accused of serious crimes, including homicides and violent felony sex offenses, went into effect on April 1, 2018. Introduced in 2017 as part of Governor Andrew Cuomo’s criminal justice reform package, and passed by the state legislature last year, the law aims to ensure that evidence collected during interrogations is credible, and to safeguard against coerced and otherwise false confessions.

“Recording interrogations can be critical in helping convict the guilty, free the wrongly accused, and uphold faith and confidence in our criminal justice system,” Cuomo said. “I’m proud that this hard-fought reform is now in effect, bringing us one step closer to a more fair and more just New York for all.”

The new requirement covers most serious non-drug felonies. It applies only to custodial interrogations at police stations, correctional facilities, prosecutors’ offices and similar holding areas; failure to record interrogations in such cases could result in a court determining that a confession is inadmissible as evidence.

Prior to the new law taking effect, the New York State Municipal Police Training Council amended its model policy outlining how law-enforcement agencies should conduct and record custodial interrogations. The policy outlines required interrogation procedures, including recording Miranda warnings; finding an age-appropriate setting if a juvenile is being interviewed; camera positioning; date and time stamping of the footage; identifying all parties present for the recording; and documenting any equipment challenges that arise.

A Fair and Popular Law

The law has received praise from prosecutors, the state District Attorneys’ Association and defendants’ advocates. Telephone research by attorney Tom Sullivan also suggests that once police experience having their interrogations videotaped—and not having to spend so much time in court defending their actions—they will wholeheartedly embrace the practice.

“The Innocence Project applauds the implementation of the law requiring the electronic recording of interrogations,” said project policy director Rebecca Brown. “This is a critical reform that offers robust protections to the innocent by creating a clear record of what transpired in the interrogation room. The Innocence Project also supports careful study of implementation efforts to assess the degree of uniformity in practice; the feasibility of expanding the crime categories for which recording is required over time; and the reliability of various interrogation methods.”

What Makes an Innocent Person Confess?

Casual observers unfamiliar with examples of false confessions obtained during interrogations might wonder why a person would confess to a crime he or she did not commit. But such confessions occur for several reasons, and judges and juries historically have ruled based on confessions, even in the presence of contradictory evidence.

The factors contributing to false confessions include intimidation, the use of physical force, or the perceived threat of force, by the interrogating officer; devious interrogation techniques, including false statements about the presence of incriminating information, or the promise of a lighter sentence; and compromised reasoning ability due to exhaustion, hunger, stress, substance use, or intellectual or mental limitations. In some cases, defendants become so stressed and broken down that they begin to believe somehow that a confession is in their best interest, or that they actually did commit the crime.

One of the most notorious cases involving false confessions is that of the “Central Park Five”: the five black and Hispanic teenagers who were convicted in the brutal 1989 rape of a 28-year-old white woman who was jogging in the New York City park. Each boy, after 14 to 30 hours of interrogation, gave in and confessed to being present at the crime scene but not to being the rapist, because each one, in his worn-down mental state, had concluded it was in his best interest to do so. Even though they all quickly recanted, and DNA evidence did not match any of them, they were convicted and collectively spent 41 years in prison.

If you have been treated unfairly by law enforcement and/or have been wrongfully charged, LaMarche Safranko Law can help. Call us at (518) 982-0770 or contact us online.

New Gun Laws in New York State

New York gun laws are changing for those owners convicted of domestic abuse.

On March 31, a bill that would require domestic abusers in New York state to turn in all their guns sailed through the Senate and Assembly and was promptly signed into law by Governor Andrew Cuomo. The bill expands on previous legislation requiring abusers to turn over only their handguns, and also broadens the scope of convictions that apply, to include many misdemeanors along with felonies.

Among other things, Cuomo cited a report from the Centers for Disease Control and Prevention indicating that “intimate partner violence” accounts for more than half of all killings of women in which the circumstances are known.

Nationally, gun control has been a hot topic since the February 14 shooting at Marjory Stoneman Douglas High School in Parkland, FL, which left 17 students and teachers dead.

On March 24, more than one million people around the United States took to the streets in March for Our Lives protests. Several hundred thousand marchers descended on Washington, D.C., while “sibling” protests took place in some 800 cities around the world, including Albany. The marches were inspired by the activism of student survivors of the Parkland massacre. The young protestors’ goal is to put political pressure on elected officials to enact tougher gun laws, and to counteract the powerful legislative impact of the National Rifle Association.

Fallout from the Parkland tragedy has been felt in New York’s Capital Region in a couple of different ways. In an action linked to the shooting, the Saratoga Springs City Council on March 9 voted unanimously to permanently end gun shows at the Saratoga Springs City Center. On a darker note, the Florida attack appears to have inspired numerous “copycat” threats of violence at schools around the country, including public schools in the upstate New York communities of Saugerties, Corinth, Cairo-Durham, Berlin, and Mechanicville, and at LaSalle Institute in North Greenbush.

New York State: Strict Gun Laws, Low Per-Capita Death Rate

Despite heightened concerns over the threat of mass shootings, when it comes to gun laws, New York is considered one of the most strictly regulated states in the country. The state received an A- in the latest scorecard put out by the Giffords Law Center to Prevent Gun Violence (only California received an A); New York’s gun-law strength was ranked fifth out of 50 states, while its gun-death rate per capita was one of the lowest in the nation, at No. 48.

In New York state, both a license and background check are required to possess a handgun; possessing a “long gun” (rifle or shotgun) requires only a background check, not a license. (A license for long guns is required in New York City; ours is one of a small number of states that allow local governments to enact gun laws that are more restrictive than state laws.)

In January 2013, Governor Andrew Cuomo signed into law the New York Secure Ammunition and Firearms Enforcement Act, commonly known as the NY SAFE Act. Among other things, this legislation broadened the legal definition of assault weapons banned in the state, which include semi-automatic rifles and pistols with at least one “military-style” feature, such as telescoping stock, bayonet mount, flash suppressor and others. Weapons allowed under previous state law were grandfathered in, but were required to be registered with the state by January 15, 2014. The SAFE Act also reduced the allowable magazine capacity to seven rounds, but this provision was struck down in court, returning the maximum to its previous 10 rounds.

The state makes exceptions to the assault-weapons restrictions for weapons classified as “antique,” and also for acting or retired law-enforcement personnel. Permits for carry are issued by counties and police departments on a discretionary basis, and are harder to obtain in or near New York City and other urban areas.

The NY SAFE Act created a universal background check provision requiring all sellers and transferors of firearms and ammunition to conduct checks through the National Instant Criminal Background Check System (NICS). The act also amended the state’s penal code to establish “tougher penalties for those who use illegal guns as well as measures to help combat gang violence.” New York law also requires that gun owners report lost or stolen firearms and/or ammunition to law enforcement.

The Giffords Law Center provides a concise summary of New York state gun laws, with links to more detailed information.

If you are facing a firearms-related charge, LaMarche Safranko Law can help. Call us at (518) 982-0770 or contact us online.

Move Over: It’s The Law

A recent crash sheds doubt on the effectiveness of New York's move over law

A local driver’s awareness of New York State’s “move over” law might not have helped state troopers Brent Karow and Shane Swartz all that much. Christopher Neumann was apparently under the influence of alcohol when he plowed into the troopers, as they assisted two tow-truck operators pulling a car out of the median of I-90 in the early-morning hours of March 4, 2018, seriously injuring them.

The troopers and tow operators had responded to an earlier crash on the interstate in North Greenbush, involving a motorist allegedly distracted by his cell phone. They were still at the scene when Neumann, a 26-year-old Albany man, lost control of his vehicle, which left the roadway and crashed into the police vehicle, the troopers and the tow-truck company owner.

Although drunk driving may prove to be the primary factor in this case, the crash nonetheless underscores the dangers faced by police and other emergency personnel who have stopped on or near roadways to issue tickets or respond to crashes. And it highlights the importance of the state’s “move over” law (NYS Vehicle and Traffic Laws, Article 26, § 1144 and § 1144-a), which took effect in January 2011 and has been modified twice to include not only police vehicles, ambulances and fire trucks, but also tow trucks, road construction and maintenance crews, and sanitation vehicles.

Essentially, the law requires motorists—when approaching a crash, construction, or other scene where emergency or work vehicles have lights flashing—to both slow down to a reasonable speed and, where possible, move over to the next lane. The law applies regardless of which side of the road the official vehicles are parked. Violations are punishable by two points on the offender’s license and a fine of up to $150.

The U.S. history of “move over” laws goes back to January 1994, when a South Carolina paramedic named James D. Garcia was struck by a vehicle and seriously injured while working a roadside crash scene. At that time, state laws typically defined emergency responders as “pedestrians,” and Garcia was declared at fault for stepping into the roadway. After several of his requests to change the incident report were denied, Garcia began lobbying the state legislature to enact laws to better protect emergency responders. South Carolina passed the nation’s first “move over” law in 1996.

Today, all 50 states have “move over” laws on the books; only Washington, D.C., does not.

It is commonly acknowledged by government and law-enforcement officials that public awareness of “move over” laws is not as widespread as it needs to be, and that many motorists still believe that slowing down and/or changing lanes for emergency responders is more of a courtesy than a legal requirement. State governments in New York and elsewhere have run PR campaigns to try to improve awareness of the law.

After the March 4 crash in North Greenbush, state police charged Neumann with first-degree vehicular assault—a felony—and driving while intoxicated. At a press conference later that day, Troop G Commander Major Robert Patnaude noted that the crash was precipitated by a chain reaction of two common types of dangerous behind-the-wheel behavior: distracted driving and drunk driving. His comments, however, also underscored the ideological hurdle that “move over” lawmakers are working to overcome.

“You’re driving a 3,000-pound vehicle that is a dangerous weapon, and people take it too lightly,” Patnaude said.

If you or a family member have been injured, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or contact us online.

New Law Extends Statute of Limitations on Cancer Malpractice

Lavern Wilkinson - Albany malpractice attorneys

On March 7, 2013, Lavern Wilkinson succumbed to lung cancer at Long Island College Hospital. Wilkinson was only 41, and left behind an autistic daughter, but what made her death more than just an unfortunate family tragedy was that her cancer could have been halted with proper diagnosis when, in 2010, she came to the Kings County Hospital emergency room with chest pains. Still worse, a cruel twist of state and municipal law left her unable to sue for medical malpractice.

A radiologist spotted a suspicious mass in Lavern Wilkinson’s right lung, but instead of being given the results, she was sent home by a first-year resident with the advice to take Motrin. When Wilkinson returned to the same ER two years later with a chronic cough, the cancer had spread throughout her body and was now terminal.

Although an attending physician confirmed that the hospital had botched the initial diagnosis, the New York State statute of limitations allowed patients only two and a half years from the time of the medical error to file a claim, and for patients (like Lavern Wilkinson) treated in a New York City municipal hospital, the limit was a mere 15 months. So, by the time Wilkinson came back to the ER, her window to take legal action had already closed.

Enter Lavern’s Law

After intense lobbying by hospitals, lawyers and patients and their advocates, the New York State Legislature reached an agreement to extend the statute of limitations for medical, dental, or podiatric malpractice related to the failure to diagnose cancer. Governor Andrew Cuomo signed the bill into law on January 31, 2018.

The law will now give victims of medical malpractice two years and six months to file a claim from the time a person discovers the alleged negligent act or omission. The statute of limitations will begin to run when the patient knows or reasonably should have known of the error and harm, with a limitation that only seven years can pass between the negligent act and the bringing of an action.

Lavern’s Law focuses specifically on patients who have been harmed by the failure to diagnose cancer or a malignant tumor. It does not apply to any other medical malpractice cases. In passing the law, the governor and legislature have acknowledged the long-understood fact that many symptoms of cancer take longer than two-and-a-half years to manifest themselves.

The law also revives claims that became time-barred in the 10 months before enactment on January 31, 2018, allowing those claims to be filed within six months of the effective date of the act.
If you or a family member is a victim of medical malpractice, LaMarche Safranko Law can help. We are leading Albany malpractice attorneys, serving the entire Capital Region. Contact us at (518) 982-0770 or online.

Safranko Speaks Out On Controversial Troy Police Shooting

Albany defense attorneys

 

On January 30, retired Troy Police Chief John Tedesco published an opinion piece in the Troy Record defending the Troy Police Department in general, and Sgt. Randall French in particular, regarding the April 2016 incident in which French fatally shot motorist Edson Thevenin after a traffic stop. Tedesco’s piece countered recent criticism of the department’s handling of the homicide, notably from the office of New York State Attorney General Eric Schneiderman and Albany Times Union columnist Chris Churchill.

Albany defense attorney Andrew Safranko, partner at LaMarche Safranko Law, echoed similar sentiments on the firm’s Facebook page. Safranko and Co. are intimately familiar with the case, having represented French.

“Thank you for setting the record straight, Chief Tedesco,” Safranko said. “Our office had the pleasure of representing Sgt. French. Anyone familiar with the facts of this case knows that Sgt. French’s actions were justified.”

At 3:26 a.m. on April 17, 2016, French tried to pull over Thevenin, whom he suspected of drunk driving. Thevenin—whose blood alcohol level was more than twice the legal limit—fled the scene, but crashed his Honda Civic near the Collar City Bridge. Two TPD cruisers blocked the Civic, and in the confrontation that followed, French fired eight rounds at Thevenin, killing him.

Much of the controversy in the case centers around the TPD’s handling of evidence and witnesses in the immediate aftermath, and around French’s testimony that he fired in self-defense, because Thevenin had accelerated into him, pinning him against his cruiser. Schneiderman’s office, completing a yearlong investigation of the homicide, concluded that criminal prosecution under state law would not be possible—because of an immunity agreement granted French by Rensselaer County District Attorney Joel Abelove—but was highly critical of the department, and contradicted some of its findings.

In a January 17, 2018, story on the AG report in the Times Union, Safranko—French’s attorney—said the attorney general’s special investigations and prosecutions unit, which issued the report, was formed to investigate the deaths of unarmed and innocent civilians.

“This is not the case here,” Safranko told the Times Union. “Clearly, Thevenin was not innocent, as he was fleeing from a lawful police stop that would have led to at a minimum an aggravated DWI charge and ultimately the loss of his license, based on his prior DWI history. DA’s offices routinely utilize a motor vehicle as a weapon when charging crimes.

“Randy French is a well-respected police officer,” Safranko continued. “And it is uncontroverted that his leg was pinned when he shot. A paid-for report cannot change that. Let me be clear: Sgt. French did nothing wrong. The report concedes that even if Sgt. French was not pinned … he was allowed to use self-defense and was justified in his actions.”

A Rensselaer County grand jury found no evidence of wrongdoing; Thevenin’s family is pursuing a civil action against the department.

If you are a defendant facing a criminal or civil trial, LaMarche Safranko Law can advise you on your best options for defense. Contact us at (518) 982-0770 or online.

 

Slipping and Falling on Ice or Snow: Can I Sue for Damages?

Icy parking lot after a snow storm Albany NY. Contact a slip fall attorney if you've been injured walking in a place like this.Winter in Albany and Upstate NY means there’s always a chance of snow and ice around the corner, and snow and ice mean there’s always a chance someone will slip and fall. And unfortunately, slip-and-fall accidents are all too common, as evidenced by the large number of slip-and-fall personal-injury claims filed each year.

Although the bar is set fairly high to establish that a defendant’s negligence or failure to take reasonable care of a property caused the fall, some claims result in significant jury awards or, more commonly, settlements.

So, if you’re a homeowner or the sole occupant of a rental property, it might be a good time to check on your arsenal of shovels and bags of salt. If you’re an owner or facility manager of a business with a building and a parking lot, you might already have a contract in place with an independent plowing service. And even if you aren’t personally responsible for clearing any sidewalks, steps, driveways, or parking lots, ’tis the season to take extra care for your own safety when walking on them.

The Burden of Proof

If you are somewhere other than your workplace, and you slip and fall on ice or snow on a sidewalk, stairs, or parking lot, you may have a claim against whoever is responsible for the upkeep and safety of the property. You will need to establish proof that the accident happened and that you suffered injuries. Remember, evidence of a slippery area can vanish in one sunny afternoon. If you can, take a cell-phone photograph that clearly shows where you fell, with enough visual context to prove its location. Depending on the severity of the victim’s injuries, this can be done by a quick-thinking companion. If there are witnesses, try to collect contact information. Later, you can submit medical records to document your injuries.

Of course, you will have to prove that the property owner, manager, or tenant either created the conditions that caused your fall or was negligent in the failure to remove or mitigate those conditions. No one can be expected to remove treacherous conditions during a snowstorm in progress. In New York State, many municipalities’ codes establish the time frame allowed for snow removal; in Albany and Schenectady, for example, snow and ice must be cleared within 24 hours of the storm’s end.

Giving Notice

Even if snow is cleared in a timely fashion, temperature fluctuations can cause icy conditions from melting and refreezing. And water draining onto a sidewalk or parking lot will freeze at low temperatures. Liability stemming from a fall on ice in these situations may depend on whether the owner was given actual or “constructive” notice, the latter referring to conditions that are present long enough for the owner to reasonably know that a dangerous situation might exist.

Even if you can establish that you fell and sustained injuries due to slippery conditions that should have been addressed, the defendant’s attorney will look for evidence that you shared at least some of the blame: that you were trespassing, talking on your cell phone, wearing improper shoes, failing to stay on the cleared portion of the sidewalk, etc. And since New York is a “comparative negligence” state, a jury can diminish any award proportional to the amount of negligence you are assigned.

Workplace Incidents

If you are injured at work because of a slip and fall on snow or ice while walking on steps, walkways, or a parking lot of your workplace (or on the lobby floor made slippery by the accumulation of melting snow), in most cases you should file a Workers’ Compensation claim to cover your damages. In New York, the Workers Compensation law does not allow an employee to sue the employer because of negligence that caused an injury.

***If you or a family member has suffered a personal injury in or around Albany due to negligence leading to a slip and fall in icy conditions, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or online.

Why Does a Personal Injury Case Take So Long to Resolve?

Why does it take so long for resolution of a personal injury case?Handling a serious personal injury case can sometimes take years. It’s important for clients of personal injury attorneys to understand why some cases take such a long time to resolve.

No two personal injury cases are alike; some are settled relatively quickly, but others drag on for years, frustrating plaintiffs who have suffered injuries (sometimes with lasting effects), lost income and experienced general disruption to their lives. To the injured party, the seemingly endless delays in reaching a resolution can seem unbearable, and even unnecessary.

But no matter how diligently you and your injury attorney are working to move the case forward, there are several factors that may stand in the way of a speedy settlement or trial.

Delayed Reactions

In personal injury cases, it often takes time to assess the full extent of injuries suffered. For example, car accidents and falls can result in multiple injuries, some of which are not apparent at first, as the victim and medical responders focus on the more obvious ones, like a broken limb or a gash on the head. Some other complications—among them whiplash, chronic back pain and sprained or otherwise damaged joints—may not become fully apparent until later, when the injured party realizes their symptoms aren’t going away.

Often, medical care is lengthy and ongoing. Not only does it make sense from a legal standpoint to allow time to assess the full extent and medical cost of the damage, it is in the plaintiff’s best interest not to act too soon and possibly underestimate that cost before reaching “maximum medical improvement.”

The Discovery Period

Another cause for delay is that medical records need to be gathered, and a thorough investigation needs to be done. This can take months to accomplish. Especially in cases with complex questions about who is responsible for a person’s injuries, consulting with experts is often a lengthy process.

Once this information is obtained, to formally pursue a case, the plaintiff’s personal injury lawyer initiates a lawsuit by filing a summons and complaint, which then must be served upon the defendant(s) within four months. After that, the defendant retains a lawyer who answers the complaint, thereby beginning the pretrial “discovery” period, during which lawyers from each side exchange statements on the details of the case and any witnesses from whom they plan to seek testimony. Discovery documents are compiled and exchanged, as is a thorough “Bill of Particulars” that lays out the plaintiff’s theory of the liability, and the extent of the plaintiff’s harm and injuries.

Depositions

Often months later, after discovery is exchanged, you and the defendant(s), as well as other witnesses, may be required to give depositions under oath. And if either side files pretrial motions—for example, to dismiss certain aspects of the case, or even the entire case—it will take additional time for the court to respond to the motions.

If the lawsuit is not settled at any time during this process, it can go to trial, but even then, the court may set up a settlement conference to see if the parties are able to come to a meeting of the minds. If not, scheduling the trial itself can take months.

Stall Tactics

Finally, the more money that is at stake in a claim, the more likely the defendants’ insurance companies will stall, exhausting all possibilities of challenging your claim, and possibly driving impatient plaintiffs to settle for less. This is another reason it may be in your best interest to allow the legal process to run its due course.

For motor vehicle accidents, New York is a “no fault” state, which means that if you are injured in a vehicle or struck by one as a pedestrian or bicyclist, the vehicle’s insurance pays your medical bills, lost wages and certain other expenses, no matter whose fault the accident is. For information on how to apply for no-fault benefits in New York state, see the Department of Financial Services website.

***If you or a family member has suffered an injury due to an accident, a fall, or a person or institution’s negligence, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or online.

Alex V. Bongermino Found Not Guilty of Attempted Murder and Assault

LaMarche Safranko Law PLLC announced today that Alex V. Bongermino, (20), was found not guilty of all charges against him which included Attempted Murder and Assault. Bongermino was defended by Attorney Nicholas Evanovich.

The jury trial was held before Hon. James M. Murphy and prosecuted by the Saratoga County District Attorney’s office.  The trial lasted just over two weeks.

Bongermino was originally arrested on December 7, 2016, and indicted on March 30, 2017. The charges stemmed from an altercation on December 7, 2016, when Bongermino stabbed another person who had threatened him with guns and knives during the hours before the stabbing.  After defending himself, Bongermino was driving towards the police and after crashing his car on the snowy roads called 911 and begged officers to protect him and his family from this other man who he still believed was a threat.

Subsequently, at the police station, Bongermino spoke to the state police for about an hour about the weeks leading up to that night and early morning and the fear and anxiety he felt.  His concerns came to a head that night when he was given alcohol and repeatedly threatened before finally choosing to defend himself.

“The jury finally did what no one else had done in the case,” said Evanovich.  “They were willing to look at every piece of evidence and did not rush to judgment.  The physical evidence continued to corroborate Alex’s explanation about what happened, which was classic self-defense.”  The jury’s only request during deliberations was to rehear Bongermino’s chilling 911 call during which he cried and pleaded with the dispatcher to help him and protect his family.  

“Alex likely had to make the most difficult decision he’ll ever have to make in his life at 20 years old,” Attorney Evanovich continued.  “Alex has no criminal history, no prior arrests, and had the strong support of his family throughout the trial.  I’m extremely pleased he was finally vindicated.”

 

 

 

Second DWI in New York State

One DWI (driving while intoxicated) or DWAI (driving while ability impaired) conviction in New York state is tough enough: for DWI, a mandatory fine of $500 to $1,000, a six-month revocation of your license, and potentially up to a year in jail; for DWAI, a fine of $300 to $500, a six-month license suspension, and as many as 15 days in jail; not to mention the lawyers’ fees and disruption of your work and social life.

So what happens if you are charged with drunk driving again?

The first consideration is whether the new arrest would qualify as a second offense, which depends on how long it’s been since the first one. Generally speaking, New York’s “look-back” period for a DWI conviction, or a DWAI involving other drugs, is 10 years; for an alcohol-only DWAI, it is five years. (DWI is defined as driving with a blood alcohol content [BAC] of .08 or higher; DWAI is indicated by a BAC of .05 to .07, “or other evidence of impairment.”)

A second DWI within 10 years means you could be charged with a Class E felony, pay up to $5,000 in fines, have your license revoked for at least one year, and/or go to prison for up to four years. A second DWAI violation within five years could mean a fine of up to $750, 30 days in jail, and a six-month revocation of your license.

Factors that will increase the penalties include: having a blood alcohol content of .18 or higher (called aggravated DWI); having other intoxicating drugs in your system; and having a child of 15 years or younger in your car.

Whether or not a person pulled over on suspicion of DWI should refuse a chemical test depends on many factors, and before making this decision, a person should contact a lawyer for advice.

Not all of the DWI and DWAI penalties described here are set in stone. A DWI attorney can help you navigate through some of your options: pleading guilty to a lesser charge; accepting probation and/or a treatment program; or litigating the case by conducting hearings and going to trial. Your attorney also can advise you on whether your county has a felony diversion program, the goal of which is to get people with a history of drunk driving into treatment in exchange for a lighter sentence.

If you have been charged with DWI or DWAI, whether for a first or a repeat offense, LaMarche Safranko Law can help. Contact us at (518) 982-0770 or online.