PLEA NEGOTIATIONS by Sherry Levin Wallach, Esq. Wallach & Rendo LLP Mount Kisco, NY 327
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9/8/2014 Sherry Levin Wallach Wallach & Rendo, LLP wallach@wallachrendo.com P: 914-242-9494 Managing Expectations Explain Ranges of Possible Sentence Manage Expectations Discuss Goals 329 1
9/8/2014 Find out which ADA is assigned Know polices of particular DA Office What to tell them Going to Supervisor Cannot make False Representations N.Y. Rules of Professional Conduct R. 1.2, 8.4 (2009) Penal Law Article 60 Authorized Sentences Penal Law Article 70 Terms of Imprisonment Sentencing Chart DWI Sentencing Chart 330 2
9/8/2014 Penal Law 70.15 A Misdemeanor Maximum 1 year B Misdemeanor Maximum 3 months Violation Maximum 15 days Sealable Offenses CPL 160.50, 160.55 Criminal Procedure Law 170.55 6 Month Adjournment Family/Domestic Offense 1 year Adjournment After Adjournment case dismissed Criminal Procedure Law 170.56(1) Marijuana ACD 331 3
9/8/2014 Penal Law 240.20 Non-Criminal disposition Sealable under CPL 160.55 Know your sentence range for top charge and possible reduction for a plea Local Court v. County Court SCI Pre-Indictment Sentencing Chart 332 4
9/8/2014 Have a Realistic Goal Offer sentencing alternatives Know your judge Know your DA Shock Probation Probations Conditions (see hand outs) Negotiate Modifications at Time of Plea Review Conditions with Client Before Plea 333 5
9/8/2014 Criminal Procedure Law 720 At least 16 and less then 19 years of age Every Youth is eligible unless person is charged with an enumerated offense, has been previously convicted and sentences for a felony, previously been adjudicated a YO for a felony, or been adjudicated delinquent base on a designated felony act. See CPL 720.10 Penal Law 60.50(3) 3 years for a felony 1 year for a misdemeanor If violate any conditions, subject to resentence. 334 6
9/8/2014 Penal Law 80.05 Often used as a condition of a Conditional Discharge Usually Must be paid at time of Sentence Surcharges DNA - $50 taken at time of sentence or through probation VTL Offenses license consequences No Admission to Canada Loss Of Employment or Professional Licenses Orders of Protection CPL 530.12, 530.13 Felony 8 years Misdemeanor 5 years Other Offense 2 years Restitutions CPL 60.27 ie: Medical Bills, Property Damage Community Service PL 65.05 335 7
9/8/2014 Easier in Misdemeanor Cases & E Felonies Weekends Substance Abuse Treatment Treatment Courts Drug Court Deferred Sentence CPL 216.05 Find out clients exact status Pedilla v. Kenucky Must advise client of consequences of plea on record and/or in a letter Refer to immigration attorney, indicate referral in letter 336 8
9/8/2014 Know consequences on license before taking plea Get driving abstract/record Driver Responsibility Fee VTL 1199(1),(2) Driver Assessment upon conviction - $250/year for 3 years Substance Abuse Evaluation Ignition Interlock SCRAM Transdermal Monitoring Device Corrections Law 168-a will be required to register Must know factors used to classify Board of Examiners will make recommendation to sentencing court SORA hearing dispute proper classification 337 9
9/8/2014 Have restitution in money order form Client must be prepared to pay fine at time of sentence Advise Client of Rights they are giving up Misdemeanor Conviction Waiver of Right Form Westchester County Plea must be voluntary, knowingly and intelligently made People v. Fiumefreddo, 82 N.Y.2d 536, 544, 605 N.Y.S.2 671, 675 (1993) Waiver of Right to Appeal: usually required CPL 450.10 338 10
December 14, 2012 Mr. Re: People v. Dear Mr. : Please allow this letter to inform you of your next Court date which is in Lewisboro Town Court. YOUR FAILURE TO APPEAR MAY RESULT IN A WARRANT FOR YOUR ARREST. The plea offer by the District Attorney s Office is for you to plead guilty to Driving While Ability Impaired, a violation of Vehicle & Traffic Law 1192(1). Please note that this is a violation and not a crime; therefore, you will not have a criminal record as a result of your pleading guilty. If you accept the plea offer, it is the Court s intention to sentence you to a one (1) year Conditional Discharge; a ninety (90) day suspension of your driver s license; the requirement to attend the Drinking Driving Program ( DDP ) through the Department of Motor Vehicles ( DMV ); the requirement to comply with the requirements of TASC and requirement to attend one session of a Victim Impact Panel ( MADD ). A Conditional Discharge means that you must not get arrested for one (1) year. If you do, you will violate the Conditional Discharge which could result in the resentencing in the instant matter. This includes your failure to complete the DDP program; comply with TASC and/or attend the MADD session. The Court would also impose a $560.00 fine and surcharge which must be paid by you to the Court at the time of sentencing. In the meantime, if you have any questions, please contact me. Very truly yours, Sherry Levin Wallach SLW:tcb 339
November 1, 2012 Mr. Re: People v. Dear Mr. : Please allow this letter to inform you of your next Court date which is in Bedford Town Court. Your failure to appear may result in a warrant for your arrest. The plea offer by the District Attorney s Office is for you to plead guilty to Driving While Intoxicated, a violation of Vehicle & Traffic Law 1192(3). Please note that this is a crime; therefore, you will have a criminal record as a result of your pleading guilty. It is the Court s intention to sentence you to a one (1) year Conditional Discharge; a six (6) month revocation of your driver s license; the requirement to attend the Drinking Driving Program ( DDP ) through the Department of Motor Vehicles and attend one session of a Victim Impact Panel ( MADD ). A Conditional Discharge means that you must not get arrested for one (1) year. If you do, you will violate the Conditional Discharge which could result in the resentencing in the instant matter. This includes your failure to complete the DDP program and/or attend the MADD session. You are also being required to install, at your expense, an ignition interlock device in any vehicle you drive for one (1) year. The ignition interlock device requires you to blow into the device and the vehicle will not start should it detect alcohol on your breath. It also requires you to intermittently blow into the device as you are driving the vehicle. It should be noted that this device requires you to have it calibrated monthly at a monthly fee also at your expense. Please note that any failure of tests to the device could result in a violation of your Conditional Discharge. The Court would also impose a $ fine and $ surcharge which you must be prepared to pay to the Court at the time of sentencing. 340
Please also be advised shortly after your sentencing you will receive a Driver Responsibility Assessment from the Department of Motor Vehicles ( DMV ). You should expect to pay to the DMV $250.00 per year for the next three (3) years. Your failure to pay these assessment fees may result in future suspensions of your driver s license. It should also be noted that Canada will deny entry into their country for people convicted of crimes, including drinking driving offenses. However, I have been informed that it is at the discretion of the Border Patrol Officer whether or not to allow you access into their country. In the meantime, if you have any questions please contact me. Very truly yours, Sherry Levin Wallach SLW:tcb 341
February 15, 2012 Ms. Re: People v. Dear Ms. Please allow this letter to inform you of your next Court date which is in Town of Cortlandt Justice Court. YOUR FAILURE TO APPEAR MAY RESULT IN A WARRANT FOR YOUR ARREST. The plea offer by the District Attorney s Office is for you to plead guilty to a Class A Misdemeanor of Driving While Intoxicated, a violation of Vehicle & Traffic Law 1192(3). Please note that this is a crime; therefore, you would have a criminal record as a result of your pleading guilty. If you decide to accept the plea offer it is the Court intention to sentence you to three (3) years Probation with DWI conditions; a six month revocation of your driver s license; the requirement to attend the Drinking Driving Program ( DDP ) through the Department of Motor Vehicles and the requirement to attend one session of a Victim Impact Panel ( MADD ). If you are granted a Conditional License and/or when you get your license back, you will be required to install, at your expense, an ignition interlock device in any vehicle you drive. The ignition interlock device requires you to blow into the device and the vehicle will not start should it detect alcohol on your breath. It also requires you to intermittently blow into the device as you are driving the vehicle. It should be noted that this device requires you to have it calibrated monthly at a monthly fee also at your expense. Please note that any failure of tests to the device could result in a violation of your Probation. Please also be advised that shortly after your sentencing, you will receive a Driver Responsibility Assessment from the Department of Motor Vehicles ( DMV ). You should expect to pay to the DMV $250.00 per year for the next three (3) years. Your failure to pay these assessment fees may result in future suspensions of your driver s license. 342
The Court would also impose a fine and surcharge which you should be prepared to pay to the Court at the time of sentencing. It should also be noted that Canada will deny entry into their country for people convicted of crimes, including drinking driving offenses. However, I have been informed that it is at the discretion of the Border Patrol Officer whether or not to allow you access into their country. In the meantime, if you have any questions please contact me. Very truly yours, Sherry Levin Wallach SLW:tcb 343
April 5, 2012 Ms. Re: People v. Dear Ms. On you pled guilty in Town of Cortlandt Justice Court to Driving While Intoxicated, a violation of Vehicle & Traffic Law 1192(3) and the Court has scheduled your sentencing for. Please note that this is a crime; therefore, you will have a criminal record as a result of your pleading guilty. YOUR FAILURE TO APPEAR MAY RESULT IN A WARRANT FOR YOUR ARREST. It is the Court s intention to sentence you to three (3) years Probation with DWI conditions, which includes that you have no vehicle registered in your name and you will not have a license until Probation gives you permission to apply for one. When you get the license you will be required to install, at your expense, an ignition interlock device in any vehicle you drive. The ignition interlock device requires you to blow into the device and the vehicle will not start should it detect alcohol on your breath. It also requires you to intermittently blow into the device as you are driving the vehicle. It should be noted that this device requires you to have it calibrated monthly at a monthly fee also at your expense. Please note that any failure of tests to the device could result in a violation of your Probation. Please note that you must go to the Westchester County Department of Probation for a Pre- Sentence Interview between now and. Please note that if you fail to appear for the appointment and meet with the Probation Department, the Court could withdraw its commitment of sentencing you to Probation and instead sentence you to a term of up to one (1) year in the Westchester County Jail. You should be receiving a letter shortly from the Department of Probation notifying you of your interview date in the near future. If you do not, please let me know. The Court would also revoke your driver s license for six (6) months; require you to complete the Drinking Driving Program ( DDP ) through the Department of Motor Vehicles and the requirement to attend one session of a Victim Impact Panel ( MADD ). 344
The Court would also impose a fine of $500.00 and a surcharge of $400.00, totaling $900.00 which you should be prepared to pay to the Court at the time of sentencing. Please also be advised that shortly after your sentencing, you will receive a Driver Responsibility Assessment from the Department of Motor Vehicles ( DMV ). You should expect to pay to the DMV $250.00 per year for the next three (3) years. Your failure to pay these assessment fees may result in future suspensions of your driver s license. It should also be noted that Canada will deny entry into their country for people convicted of crimes, including drinking driving offenses. However, I have been informed that it is at the discretion of the Border Patrol Officer whether or not to allow you access into their country. In the meantime, if you have any questions please contact me. Very truly yours, Sherry Levin Wallach SLW:tcb 345
May 17, 2012 Mr. Re: People v. Dear : On you pled guilty in Westchester County Supreme Court to Attempted Criminal Possession of a Controlled substance in the Third Degree, a violation of Penal Law 110/220.16 and the Court has scheduled your sentencing for. Please note that this is a Felony; therefore, it will appear on your criminal record as a result of your pleading guilty. YOUR FAILURE TO APPEAR MAY RESULT IN A WARRANT FOR YOUR ARREST. It is the Court s intention to sentence you to eight (8) months in the Westchester County Jail and order you to pay restitution in the amount of $200.00. Please note that the Westchester County Department of Probation will go to the jail to meet with you for a Pre-Sentence Interview between now and July 2, 2012 If you have any questions, please contact me. Very truly yours, Sherry Levin Wallach SLW:tcb 346
December 14, 2012 Ms. Re: People v. Dear Ms. : On you pled guilty in Town of Cortlandt Justice Court to Driving While Ability Impaired, a violation of Vehicle & Traffic Law 1192(1). Please note that this is a violation and not a crime; therefore, you will not have a criminal record as a result of your pleading guilty. The Court sentenced you to a one (1) year Conditional Discharge; suspended your driver s license for 90 days; is requiring you to attend the Drinking Driving Program ( DDP ) through the Department of Motor Vehicles ( DMV ) and requiring you to attend one session of a Victim Impact Panel ( MADD ). A Conditional Discharge means that you must not get arrested for one (1) year. If you do, you will violate the Conditional Discharge which could result in the resentencing in the instant matter. This includes your failure to complete the DDP program and/or the MADD session. The next MADD session is at the Westchester County Center, 198 Central Avenue, White Plains, New York. Please note that there is a fee of $75.00 to attend. You can pre-register on line at www.govpaynow.com. Please note that the Court granted you a 20 day stay in order to give you time to go to the Department of Motor Vehicles and apply for a Conditional License. The Court imposed a $300.00 fine and a $260.00 surcharge, totaling $560.00 which was paid by you to the Court on. Please also be advised that shortly after your sentencing you will receive a Driver Responsibility Assessment Statement from the Department of Motor Vehicles ( DMV ). You should expect to pay to the DMV $250.00 per year for the next three (3) years. Your failure to pay these 347
assessment fees will result in future suspensions of your driver s license. I have enclosed an explanation with regard to this program. Lastly, enclosed is your Notice of Your Right to Appeal. Any appeal must be filed within thirty (30) days of. If you have any questions, please contact me. Very truly yours, Sherry Levin Wallach SLW:tcb enclosures 348
November 19, 2012 Mr. Re: People v. Dear Mr. : On you pled guilty in Bedford Town Court to Driving While Intoxicated, a violation of Vehicle & Traffic Law 1192(3). Please note that this is a crime; therefore, you will have a criminal record as a result of your pleading guilty. The Court sentenced you to a one (1) year Conditional Discharge; a six (6) month revocation of your driver s license; the requirement to attend the Drinking Driving Program ( DDP ) through the Department of Motor Vehicles and attend one session of a Victim Impact Panel ( MADD ). A Conditional Discharge means that you must not get arrested for one (1) year. If you do, you will violate the Conditional Discharge which could result in the resentencing in the instant matter. This includes your failure to complete the DDP program and/or attend the MADD session. The next MADD session is at the Westchester County Center, 198 Central Avenue, White Plains, New York. Please note that there is a fee of $75.00 to attend. You can pre-register on line at www.govpaynow.com. You are also being required to install, at your expense, an ignition interlock device in any vehicle you drive for one (1) year which you have already installed. The ignition interlock device requires you to blow into the device and the vehicle will not start should it detect alcohol on your breath. It also requires you to intermittently blow into the device as you are driving the vehicle. It should be noted that this device requires you to have it calibrated monthly at a monthly fee also at your expense. Please note that any failure of tests to the device could result in a violation of your Conditional Discharge. The Court imposed a $500.00 fine and $400.00 surcharge which you paid to the Court on. 349
Please also be advised you have already received and paid a Driver Responsibility Assessment from the Department of Motor Vehicles ( DMV ). You should follow up with DMV confirming you have paid this assessment. Please also be advised that shortly you will receive a Driver Responsibility Assessment Statement from the Department of Motor Vehicles ( DMV ). You should expect to pay to the DMV $250.00 per year for the next three (3) years. Your failure to pay these assessment fees will result in future suspensions of your driver s license. I have enclosed an explanation with regard to this program. It should also be noted that Canada will deny entry into their country for people convicted of crimes, including drinking driving offenses. However, I have been informed that it is at the discretion of the Border Patrol Officer whether or not to allow you access into their country. Lastly, enclosed is your Notice of Your Right to Appeal. Any appeal must be filed within thirty (30) days of. If you have any questions, please contact me. Very truly yours, Sherry Levin Wallach SLW:tcb enclosure 350
September 25, 2012 Ms. Re: People v. Dear Ms. : On you pled guilty in Town of Cortlandt Justice Court to Driving While Intoxicated, a violation of Vehicle & Traffic Law 1192(3). Please note that this is a crime, therefore, you will have a criminal record as a result of your pleading guilty. On the Court sentenced you to three (3) years Probation with DWI conditions, which includes that you have no vehicle registered in your name and you will not have a license until Probation gives you permission to apply for one. When you get the license you will be required to have an ignition interlock device in any vehicle you drive. The ignition interlock device requires you to blow into the device and the vehicle will not start should it detect alcohol on your breath. It also requires you to intermittently blow into the device as you are driving the vehicle. It should be noted that this device requires you to have it calibrated monthly at a monthly fee also at your expense. Please note that any failure of tests to the device could result in a violation of your Probation. The Court also revoked your driver s license for six (6) months; is requiring you to complete the Drinking Driving Program ( DDP ) through the Department of Motor Vehicles; the requirement to comply with TASC and the requirement to attend one session of a Victim Impact Panel ( MADD ). The next MADD session is at 6:00 p.m. at the Westchester County Center, 198 Central Avenue, White Plains, New York. Please note that there is a fee of $75.00 to attend. You can pre-register on line at www.govpaynow.com. The Court imposed a fine of $500.00 and a surcharge of $400.00, totaling $900.00 which was paid by you to the Court on. Please also be advised that shortly you will receive a Driver Responsibility Assessment from the Department of Motor Vehicles ( DMV ). You should expect to pay to the DMV $250.00 per year for the next three (3) years. Your failure to pay these assessment fees may result in future 351
suspensions of your driver s license. Enclosed is a copy of an explanation of this program from the DMV. It should also be noted that Canada will deny entry into their country for people convicted of crimes, including drinking driving offenses. However, I have been informed that it is at the discretion of the Border Patrol Officer whether or not to allow you access into their country. Lastly, enclosed is your Notice of Your Right to Appeal. Any appeal must be filed within thirty (30) days of. If you have any questions, please contact me. Very truly yours, Sherry Levin Wallach SLW:tcb enclosures 352
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