Kokosa Law Firm – Experienced Criminal and DWI Defense in the Albany Region

The Order of Protection in New York State

marckokosa@gmail.com — Thu, 17 May 2018 20:24:41 +0000

Very often in a criminal matter, when a person is arraigned before a judge, the judge will issue what is called an “Order of Protection” or sometimes called a “Restraining Order.”

Well what is an order of protection, you ask? First, there are actually four types of order of protection that are normally issued by the Courts. Essentially, there are two different types, each with their own acronyms or nicknames, and they can be 1) temporary or 2) final, depending on the stage of the proceedings.

First, you have what is called a Limited Order of Protection, a/k/a “LOP” or “Refrain From” order. This order from the Court says that you can have contact with the protected party, but you can’t act bad against the protected party. Normally, the order says something like, “Refrain from assaulting, harassing, choking, stalking, etc… the protected party. Second, there is a Full Order of Protection, which means stay away from the person, stay away from their home, stay away from their school, place of business… Do not call, text, Facebook, Snap, Kik… you get the idea.

A question I often get asked is why is there an order of protection if my boyfriend, girlfriend, husband, or whoever doesn’t want the order of protection. The answer is that it is the judge’s decision and he doesn’t always agree with what the “victim” in a case wants. And that brings us to the next point that many people do not understand. Violating an order of protection is not a crime against the protected entity; rather, it is a crime against the Court and a judge. This is why the District Attorney often does not care about the victim’s input when it comes to breaking an order of protection.

When you violate an order of protection, you can be charged with Criminal Contempt in the Second Degree or Criminal Contempt in the First Degree. Criminal Contempt in the Second Degree is a class A misdemeanor, punishable by up to a year in county jail, or up to 3 years of probation, or a combination of both. Criminal Contempt in the First Degree is punishable by up to four years in prison.

So what do you do if there is an order of protection…? Follow it! Do not think for one second that just one little phone call won’t make a difference. It will. Do not think that by just driving by his/her house, no one will notice. They will. Don’t put yourself in a position to make your criminal case harder to win.

I’ve had countless cases where the matter was set to resolve in favor of the defendant and then a criminal contempt throws a wrench into the plans. Remember, the police and prosecutor often do not need a cooperative “victim” to prosecute a criminal contempt because the only evidence they need is a single witness who saw the order being violated and often this witness is a police officer.

So, my common sense narrative to anyone who has an order of protection placed against them is to sit down and actually read the piece of paper. Word for word. I realized that the Judge recites the rules of the order in Court during the criminal arraignment or proceedings, but most defendants are in some form of shock during these proceedings and don’t fully understand the instructions or consequences.

As usual, these posts are not a substitute for legal advice. For that, give the Kokosa Law Firm a call at (518) 907-4694.

The Grey Area of Mental Illness

marckokosa@gmail.com — Tue, 06 Jun 2017 18:23:21 +0000

Over the past year or so I’ve handled about a dozen cases that involved mental illness as a major aspect of the case. To be clear, I’m differentiating this from mental disorder, which could cover everything from mental illness to alcoholism. Believe me, if you get drunk, drive a boat, and kill a kid, I wouldn’t suggest a mental defect defense. What I’m actually trying to focus on is actual, and documented, psychological disorders that the individual has no control over what-so-ever.

In one matter, I worked with a bipolar schizophrenic woman who was on probation and allegedly violated that probation. For the life of me, I couldn’t understand why this woman was on probation when she clearly had a mental capacity that would have negated any criminal intent for the crime she allegedly committed some years earlier. Here, it was a public defender who convinced her that by pleading guilty she would avoid going to prison and avoid being put in a psych facility for the rest of her life. Here lies the rub, however… this woman was never a danger to the physical safety of herself or others. She would have never been put in a facility and thus her attorney convinced her to plead guilty based on a fact pattern that wasn’t true.

In the end, with me this woman had her probation terminated and the money she owed in restitution was converted to a civil judgement which means that she still owed the money but the courts could not criminally sanction her for not paying it. But I have to ask, would she have gone through hell for the 4 years before she got to me if her original attorney took the case by the horns, spoke to her doctors, spoke to her family, and at least tried to figure out what the underlying root issue of the trouble was? Far too often I see cases that are grounded in mental illness being treated as though they are run of the mill criminal arrests because nobody in the wheel of justice is comfortable dealing with psychological issues. I suppose it’s easier to deal with a case the way that you know how, but if you don’t know how to deal with mental illness cases, you shouldn’t be handling them. Our State has begun to put significant resources towards training law enforcement to handle the needs of psychologically distressed and impaired persons and I only see a handful of attorneys taking the same initiative to make sure these persons are treated fairly by the system. At the end of the day, the Judge and the prosecutor are only going to know the information about mental disease that the defense attorney can give them. Personally, I think our profession should spend more time educating ourselves with respect to the mental illness aspects of a case rather than ignoring them because they are often difficult to understand and even more difficult to explain to other people.

Now, I won’t go so far to say that every time a client says they have a psych defense it should be taken seriously. I recall many years ago when I was on the other side of the table the defendant indicated that she may want to pursue a psych defense that she had a mental compulsion that forced her to drive (it was a rather simple unlicensed driver case). That didn’t really pass the smell test, but I can say that if she procured a doctor’s report I would have definitely looked at it and taken it into consideration. Realistically, no doctor would have ever written such a report and her attorney (who I still hold in high esteem to this day) was cognizant of that fact. The point is, though, most prosecutors will evaluate a criminal defendant who has mental illness if their attorney does the legwork and produces substantive evidence of the mental illness and how it could effect the case.

So with that, I implore the justice system to recognize the effect of mental illness on criminal defendants. Often there are solutions that don’t require confining someone and stripping them of their freedom. I can say, however, I am very thankful to the State for investing in the officer training to recognize the mental illness issue and I will candidly admit that I’ve met several investigators during this same time frame who have ended an investigation because they recognized the psychological issues, were able to articulate their facts and training to prosecutors, and come to a reasonable conclusion before an investigation turned into a full blown prosecution.

As always, these blog posts are for discussion only and do not constitute legal advice to any specific person or any specific situation. If you want that, you have to contact The Kokosa Law Firm, P.C. at (518) 907-4694 or mkokosa@albanylawgroup.com to set up an appointment for a free consultation. Also, if you have any similar stories of how mental illness has affected a case for someone you know, please let me know how the case worked out. I’m always trying to learn more and often the stories relayed to me give me perspective on how to work with similar individuals.

The DMV 3 in 25 Years Revocation Rule: Constitutional? Political? Both or Neither?

marckokosa@gmail.com — Wed, 05 Oct 2016 17:46:47 +0000

Lately I’ve had a few clients who are dealing with the NY DMV 3 in 25 rule. If you’ve never heard of this rule, let me give you a quick run-down. If you are convicted of a DWI or DWAI offense for the first time, the suspension or revocation period is pretty well spelled out in statute. If it is a DWAI, you generally receive a 90 day suspension and if it is a DWI you generally get a 6 month revocation. Both of these convictions allow you to take the DMV’s impaired driver program and apply for a conditional license.

That being said, in 2012, the DMV enacted new regulations that allowed the DMV to look back over your driving history for the previous 25 years. What are they looking for? These: Convictions for DWI, DWAI, DWAI-Drugs, Zero Tolerance violations, Breath Test Refusals, or generally any violation of Vehicle and Traffic Law sections 1192 or 1194. For the sake of brevity, let’s just call these “Alcohol Convictions.”

Here’s where the new rules changed everything. If you receive a second alcohol conviction in the past 25 years, you will have to serve the entire revocation period before you can apply for any licensing privileges, even if you take the impaired driver program. Okay, that doesn’t sound too bad. Six months without a license? Let me now show you what I call the career ender.

Let’s say you received a DWAI in 1993. You were young, dumb, and 21 years old. I certainly was when I was 21. Then, in 2002, when you were out celebrating your birthday, you got stopped by the police and blew a .08, right on the nose. The prosecutor knows she will have a tough time with the case, so you get a reduction to DWAI. Now, it’s 2016 and you’re in your mid 40’s. A bit wiser and you don’t put up with this police-state crap. You get pulled over after having a glass of wine at dinner and the police officer stops you because you were going 55 in a 54. If you’ve read as many DWI supporting depositions as I have as both a prosecutor and a defense attorney, you know that sobriety tests are designed for failure. I’ve actually had officers in my office before attempting to show me how they conducted the sobriety tests and even they couldn’t perform them without failing. In any event, you hit 2 of the 8 clues on the walk and turn test and 2 clues on the one leg stand test. Never mind that you have a bulging disk… the officer doesn’t care. So, you tell him to pound sand and refuse the breath test. Even if you were found not guilty of the DWI or it was dismissed, the DMV categorized you refusal as a third event in 25 years. So what does this mean?

3 in 25

3 or 4 alcohol events in 25 years means your license application following any revocation period will be denied for at least 5 years. No conditional license until 5 years has passed. At that point, you will be required to install an ignition interlock for likely another 5 years. At a cost of $150 for installation and about $100 per month for monitoring by the State, you just gave the State another $6000. (For a further discussion on NY’s use of the DMV to balance the State budget, see my other blog post at: http://www.albanylawgroup.com/the-upstate-new-york-empire-of-traffic-tickets/ )

So, you are in the prime of your career. You are 44 years old and have been in trouble twice in the past 2 decades. Only, you can’t drive. You can’t make it to work, because we live in upstate New York and the NYC MTA has yet to grace us with the presence of a subway or a decent bus system. Now you don’t work. So you made 2 bad decisions and fought the man once in 25 years, and you now have to be introduced to the welfare rolls.

Don’t get me wrong, I do not support drinking and driving. In fact, I support complete abstinence when operating a motor vehicle. Alcohol kills people when they drink and drive. However, I do not necessarily agree with draconian penalties that were not passed as laws, but rather were rules directed by the Department of Motor Vehicles at the behest of our governor. What is brutal is that I have clients who cannot even get to alcohol treatment because the sheer power that the DMV (read: Governor) exerts over the driving privileges in New York.

So what happens if you have 5 alcohol related events in 25 year? That’s a permanent denial of your license application in New York. Honestly, I don’t know how I feel about this one. On one end, part of me believes that if you made an alcohol related mistake on average once every five years, then you should be comfortable not driving. The other part of me says, if your government wants this rule, then let them pass it through the legislature and vote on it. This is a democracy, right? No, New York has not been a democracy in a long time.

To close, I want to share with you what I consider the worst case scenario when it comes to the 3 in 25 rule. I know a guy who took a DWAI when he was 16 years old and it was 14 years before these regulations were ever dreamed up by our State’s commander-in-chief. Had he pleaded guilty to DWI as he was charged and had the case sealed as a youthful offender adjudication, by law it would not have counted against his 3 in 25 because it would have been an adjudication and not a conviction. Instead, his attorney probably did the right thing since they didn’t know what was coming down the pike in a decade and a half and got the charge reduced to a violation. In any event, he had some issues with alcohol in his 30’s and ended up with 2 DWI convictions within 4 years. Had those 2 DWI convictions stood on their own, he would have his license right now. He’s done everything the State and his doctor has asked of him. He went to rehab, quit drinking, got healthy. He’s got a child, bills, and every other adult responsibility. What he doesn’t have is a job. Doesn’t matter that he’s been clean for 4 years, no employer will keep him on because he doesn’t have reliable transportation. In New York City, where all of these “regulations” are thought up by the governor’s dream team, you can get by without a license. Upstate, the long forgotten appendage of New York State, you may as well use your last few dollars to take a taxi to the welfare office.

As always, my blogs are for discussion purposes only and are not intended to be legal advice for any specific person. However, if you find yourself charged with a DWI, please realize that the consequences may reach much further than the edges of the courtroom. If you are charged, please feel welcome to call the Kokosa Law Firm, P.C. at (518) 907-4694. If it is after hours or the weekend, we try to answer calls24 hours a day. You are always welcome to call me or text me at (518) 466-3062 as well.