Criminal Defense2019-06-26T15:12:59+00:00

Criminal Defense

I have been practicing Criminal Law since the day I was admitted to the New York State Bar Association. I have been fortunate to have practiced Criminal Law with some very talented Criminal Defense Lawyers and I have been on the Criminal Assigned Council Panels in both Rockland and Westchester. The hardest thing to do, is to defend a truly innocent person. When I say that, I mean when someone incorrectly identifies your client and another person committed the crime. That aside, as your criminal attorney I view things in the following order.

Most crimes are not planned out. Some are but many are spontaneous acts when people lose their composure or act carelessly. One bad moment can cause years of grief and sorrow. So, the first thing I look at is the age of the defendant. A young defendant can lose out on certain opportunities that he/she doesn’t know even exist. As such, I would be more worried about a person in their late teens or 20’s taking a record than a person whose 50 year old. This isn’t to say that I would be ok with an older person taking a record, only that I would prioritize the record of a younger person so that they do not lose out on opportunities a record would stop them from having.

I then move on to the possible punishment my client would take if they lost at trial and what that punishment would be if they accepted a plea offer. Part of this process involves trying to determine what my clients’ possibility of losing at trial are. This is something that usually requires a little time, first to make the appropriate demandsand then reviewing the evidence I’ve received from the People and then discussing it with my client.

Every crime is different and I can’t explain what I would do in each and every instance. I can say the crimes I see the most are Driving While Intoxicated, Possession of Controlled Substances and Domestic Violence.

I usually try to get my client into an appropriate program once they retain my services if its needed. I usually have my client evaluated to help assist me in determining whether my client needs a program.

My philosophy is usually to try the criminal cases you have to. Those are the cases when the District Attorneys Office doesn’t make a plea offer based on either the crime or the Defendant’s prior record. The same can be said about small infractions like Disorderly Conduct. Even if the Defendant has an extensive record, the most jail time the defendant could possibly see on a disorderly conduct is 15 days. I will try that in the event the defendant doesn’t want to take a plea. I will never force a defendant to take a plea. I will make sure my client understands the consequences of losing at trial. There is not supposed to be what is known as “Trial Tax” where the Judge gives the defendant a stiffer sentence for exercising his/her rights to have a trial. This does happen though occasionally.

I am very hesitant to try a case that could involve State Prison time if the People are offering a plea that involves either probation or some time in County Jail and probation. This is a somewhat common occurrence. Many Defendants will say, “No way, I’m not spending a day in jail on this garbage.” It’s my job to explain to the Defendant how much worse State Prison would be from County Jail and how different that Defendant may be after coming out of State Prison.

I try to get my Clients into programs like Drug Court or DTAP which stands for Drug Treatment Alternative to Prison. I think its best if the person completes the program and has the criminal charge reduced upon completion from the program. I like programs like Drug Court because they divert the court’s attention from the actual alleged crime to the Defendant’s performance in the program. Programs also slow down the case which usually works in the Defendant’s favor.

It is in the Defendants best interest to slow down the process in a criminal case and have the proceedings formalized. People move around, they’re stories change and they forget things. It is in the Prosecutors interest to speed the matter up and to make the matter as informal as possible. That is how Prosecutors get inexperienced defense lawyers to sell bad plea deals to their clients.

Criminal Defendants have the right to a speedy trial. It is part of the Defense Attorneys’ job to keep track of time.  The Prosecutor has 90 days to state “Ready for Trial” in a Class A Misdemeanor and 180 days in a felony. The People (Prosecutor) must either indict the Defendant or hold a Felony Hearing in a felony within 6 days if the Defendant does not make bail. If the Defendant makes bail, the People have 180 days. Defendant’s that make bail usually end up with a better deal because they aren’t getting credited for time served while they are waiting for trial and have less of a motivation to accept a bad offer and because that defendant is out, its easier for that defendant to help his lawyer defend him.

The Prosecutor almost always states “Ready” at every appearance. This doesn’t mean that they are actually ready. The Prosecutor must serve upon the Defendant a non-hearsay Complaint or Supporting Deposition in a misdemeanor. In a felony, the non-hearsay evidence will be presented to the Grand Jury or at a Felony Hearing. This isn’t always such an easy thing to do in a Domestic Violence matter. The Prosecutor must also present proof from the laboratory in Possession of Controlled Substances matters.

This tension between trying to slow the case down to get a better disposition and trying to get the matter dismissed due to Speedy Trial time can be conflicting. That is how criminal matters are handled by criminal defense attorneys who know what they are doing and get the best results for their clients. I’m the one that stops time by either agreeing to an adjournment (because I need it) on consent. Whenever the People ask for an adjournment of time, the time is held against them unless if I agree to the adjournment on consent. Usually I will though because the adjournment is for something that benefits my client, like an evaluation or a program. It is all about how the attorney evaluates the case.Many times, District Attorney’s Offices shuffle the Assistant District Attorneys around. Assistant DA’s get promoted and leave the office. Formalizing the process as much as possible and slowing the matter down increases the chances of something like this happening. The newly assigned ADA may not be as vested in your matter as the last ADA. Also, I’ve seen Police move from one Department to another. ADA’s can have heavy caseloads and forget to make arrangements to have the Officer on your clients’ matter appear for a hearing or trial.

One of the inherent problems with the Criminal Defense practice is that many defendants do not have very much money. Money is vital to effectively fight criminal cases. Money pays for Investigators and Psychiatrists, A good Investigator can really help you by going to the crime scene, talking to witnesses and alleged victims and getting affidavits, photographs and witness statements. The People only tell you what they are required to tell you. Your investigator will tell you how much the person who made the 911 call saw or remembers. What the alleged victim is planning on saying. Your investigator may not tell you what you want to hear, but its still vital for a defense attorney to have as much of a picture of the People’s case as possible even if it’s so you know that the people have a strong case. At least this will allow you to attempt to settle the matter on more favorable grounds.

Psychiatrists can sometimes be very helpful. Even though New York has a very high standard for finding a defendant not guilty due to mental defect, a psychiatrist may be able to help explain diminished capacity which tends to humanize the defendant to the jury and the People as well. Psychiatrists usually testify as experts so they may testify to hypothetical situations instead of fact like typical lay witnesses. They can go a long way in explaining a defendant’s state of mind during the commission of an alleged crime and if there is any allegations of the Defendant being under the influence of drugs or addicted to certain drugs, a psychiatrist can help explain what could help that Defendants behavior and what steps could be taken to alleviate any addiction. Most psychiatrists will not testify to something that is a bald face lie. As such, many cases do not have a psychiatrist as a Witness. The ones that do, are usually helped by the psychiatrist’s testimony.

Every case is different. I may not see the need for a psychiatrist or an investigator on a first time DWI for a 50 year old defendant. Were that client to have multiple DWI’s and the instant one, I would seriously consider having a psychiatrist testify to the defendant’s inability to control their addiction.

Crimes are broken up into two categories, Felonies and Misdemeanors.Most crimes can be charged at either the misdemeanor or felony level. The major differences are that Misdemeanors are punishable by up to a year in Jail and Felonies are punishable by over a year in Prison. Felonies are more severe crimes and are punishable in State Prison instead of County Jail.Felonies are usually indicted in the Grand Jury and then the Defendant is arraigned on the Indictment in County Court. All people who testify in the Grand Jury are granted immunity from prosecution. A Defendant may testify before the Grand Jury only if he/she waives their immunity. I would not normally allow a defendant I represent to testify in the Grand Jury because I normally don’t believe it helps and only hurts later if the matter goes to trial and the Defendants trial testimony doesn’t exactly match his/her testimony in the grand jury. The one exception to this rule is self-defense. A defendant with a compelling self-defense argument could sway the Grand Jury not to indict that Defendant. That is a relatively rare circumstance though.

When a person is charged with a felony and makes bail, I usually try to have that client enroll in a program so that I can make an argument for a diversion program like Drug Court. My hope is that as the 180-day deadline approaches, the People consider reducing the felony to a misdemeanor. Participation in an impatient program can go quite far in convincing the People that this defendant is a good prospect to be in an out patient program. I normally get reports from the in-patient facility and send them to the ADA and the Court so they can see my Defendant’s progress.

No two cases are the same and a good attorney doesn’t do unnecessary work. Only an experienced attorney knows when it’s appropriate to hire a psychiatrist or when diversion to a program is the right move. To get the best result in a criminal matter, it’s important not only to have an experienced lawyer, but for that lawyer to communicate effectively with the Defendant. It’s crucially important for the Defendant to listen to their lawyer. I have had experiences where the Defendant completed a 21 day dry out program and then tells me they are fine and would just do an out patient program only to have the Judge tell several defendants that actually that wasn’t ok and remanded those defendants to County Jail in lieu of an in-patient program. This caused a lot of heartache and those defendants had to wait a week or two in County Jail until a bed opened up in an appropriate facility. Beyond the obvious inconvenience, it made the defendants seem less sincere and credible to the Court.

I have been practicing Criminal Law for 22 years and I am very prudent. I do not like risking my clients’ liberty in unnecessary trials. When there is no option but a trial because the People will not offer an acceptable plea, I believe in going into the trial as fully prepared as possible. Sometimes a good lawyer can really make a huge difference. Call me if you should find yourself in need of a good criminal lawyer and I will not disappoint you. My name is Paul Silk Cooper and I will protect your rights!