Legal

WHAT IS THE GENERAL DATA PROTECTION REGULATION

Undisputed Legal | Court Service

The General Data Protection Regulation (GDPR) is the world’s most stringent privacy and security legislation. Although it was drafted and adopted by the European Union (EU), it imposes requirements on organizations worldwide that target or gather data from EU citizens. On May 25, 2018, the regulation became effective. The GDPR will impose severe sanctions on anyone that disregards its privacy and protection requirements, with fines potentially exceeding millions of euros.

The GDPR was created to ostensibly reflect Europe’s commitment to data protection and privacy at a period when more individuals willingly give their personal details to cloud providers. With this willingness to provide their personal data, it is simultaneously observed that data breaches occur on a regular basis. GDPR enforcement is an intimidating prospect, especially for small and medium-sized businesses, due to the regulation’s scale, breadth, and relative vagueness, since the GDPR was intended to be more of a framework policy rather than an administrative guide.

The provisions are consistent in all twenty-seven EU member states, which ensures that businesses in the EU must adhere to single legislation. It must be noted herein that  EU GDPR is an EU Regulation and it no longer applies to the UK which would mean entities functioning inside the UK need to comply with UK data protection law.

HISTORY OF THE GDPR

The right to privacy is enshrined in the 1950 European Convention on Human Rights, which specifies that ‘everyone has the right to protection for his or her private and personal life, his or her residence, and his or her correspondence.’ The European Union has tried to preserve this freedom by regulation on this principle.

The EU acknowledged the need for new security as technologies advanced and the Internet expanded in its breadth. Thus, in 1995, it enacted the European Data Protection Directive, which established minimum data privacy and security requirements on which member states focused their own implementation legislation. The turning point wherein the EU recognized a need for an extensive regulation for internet privacy came in 2011 after a Google client filed a lawsuit against the corporation over collecting information on her emails. Two months later, Europe’s data protection authority announced that the EU needed a ‘comprehensive approach to personal data protection,’ and progress on updating the 1995 directive started.

The GDPR became effective in 2016 after being approved by the European Parliament, and all organizations were obliged to comply by May 25, 2018. The GDPR mandates that EU visitors must be provided with the requisite disclosures, with the website itself requiring to take steps to ensure consumer rights are protected in the event of personal data being breached. These requirements are far-ranging in scope, though they might be initiated as a notification done within the requisite timeline of the breach. 

HOW DOES THE GDPR ENFORCE SECURITY REGULATIONS

A foremost requirement to remember for entities that are processing the personal data of EU citizens or residents, or that sell products or services to those individuals is that the GDPR is applicable regardless of location. Additionally, the GDPR’s penalties are very heavy. There are two levels of fines, the maximum of which is EUR twenty million or 4% of global sales, whichever is greater, plus data subjects have the ability to claim damages.

Personal data is at the core of GDPR. In broad terms, this is data that enables the actual or indirect identification of a living individual through publicly accessible data. This may be something instantly noticeable, such as a person’s identity, position info, or a readily identifiable online username, or it could be something less immediate like IP addresses and cookie identifiers. Personal data is any material that corresponds to an identifiable person, either explicitly or indirectly. Naturally, names and email addresses are considered to be personal records. Personal data can also include location details, racial origin, gender, biometric data, religious views, web cookies, and political opinions. Pseudonymous data can also be used as it is fairly simple to identify a person from said data as well.

How this defines personal data is via the accessibility to name an individual – pseudonymized data may also be considered personal data. Personal data is critical under GDPR since it covers people, organizations, and businesses who are either ‘controllers’ or ‘processors’ of it. The person whose data is processed is called the subject, who would be the customers or site visitors.

DATA PROTECTION PRINCIPLES

At the heart of GDPR are seven fundamental principles outlined in Article 5 of the law that serve as a template for how individuals’ data may be treated. They are not rigid guidelines, but rather an overarching structure for laying out the GDPR’s broad objectives. The standards are virtually identical to those used in previous data security legislation.

The GDPR enumerates seven protection and accountability principles being [A.]  lawfulness, fairness and transparency, [B.] purpose limitation in order to ensure data is processed for legitimate purposes that have been explicitly outlined to the data subject [C.] data minimization ensuring that data is collected and processed only if absolutely necessary for the specified purposes, [D.] accuracy of personal data kept up to date, [E.] storage limitation in order to store personally identifying data for as long as necessary for the specified purpose [F.] integrity and confidentiality and security and [G.] accountability of the data controller in order to be able to demonstrate  GDPR compliance with all of these principles.

Data storage limitation has fast grown to be an important aspect of data protection. Organizations should not collect more personal information than they need from their users and thus need to be kept in check in order to maintain security with the type of data that may be obtained from people. 

It is necessary to ensure that personal data is protected from ‘unauthorized or unlawful processing,’ as well as accidental loss, destruction, or damage. Essentially, it is exceedingly important for the organization to set adequate security protections. This means that appropriate information security protections must be put in place to make sure information isn’t accessed by hackers or accidentally leaked as part of a data breach.

The GDPR does not say what good security practices look like since they would be different for every organization. Although GDPR imposes the most severe penalties on data controllers and processors, the law is intended to better preserve individuals’ rights. As such, GDPR guarantees its protections. This means that it is imperative to grant individuals easier access to the data that businesses keep regarding them and also require that this data be erased under some circumstances.

Individuals have the following GDPR rights in full: the right to be informed, the right to access, the right to rectification, the right to erasure, the right to restrict processing, the right to data portability, and the right to object, and also rights around automated decision making and profiling.

ACCOUNTABILITY IN THE GDPR

Per the GDPR, data controllers must be willing to show compliance with the regulation. This is not something an entity should do retrospectively: if the entities believe that they are GDPR compliant but cannot demonstrate it, they cannot be considered to be GDPR compliant. Consequently, firms have come up with many ways to demonstrate compliance, including [A.]  signing responsibility for data protection to members of the staff [B.] keeping accurate records of the data they receive, how it is utilized, where it is kept, and which individual is accountable for it, [C.] securing the company by training employees and implementing strategic and internal protection steps.

This protection may also manifest by having Data Processing Agreements in effect for third parties associated with the entity who work to handle data on the corporation’s behalf or even to designate a Data Protection Officer.

DATA SECURITY

The organization is expected to protect data by enforcing adequate technological and organizational safeguards. Technical safeguards will range from encouraging staff to implement two-factor authentication on accounts that hold personal data to partnering with cloud service companies that use end-to-end encryption.

Organizational steps include conducting employee training, including a data protection policy in the employee handbook, and restricting access to sensitive data to only those workers who need it. If a data leak occurs, companies have seventy-two hours to notify affected individuals or risk fines. Some entities may be exempt from this notice provision if they use technical protections, such as encryption, to make data worthless to an attacker.

WHEN CAN DATA BE PROCESSED

Article 6 details the circumstances in which it is permissible to process personal data. A major circumstance would be when the data recipient expressly and unambiguously consented to the processing of their data or when processing is required for the performance of a contract to which the data subject is a party or for the preparation of a contract to which the data subject is a party. Data may also be processed if the processing is required in order to comply with a legal duty placed on the entity or to preserve an individual’s safety. Essentially,  acceptable data processing is used to carry out a mission that is in the public interest or to conduct an official role with a fair reason for processing another person’s personal details.

CONSENT

Consent should be expressed in a direct affirmative act establishing a freely granted, precise, aware, and unambiguous indication of the data subject’s consent to the processing of their personal data. This indication can come from a written document, including electronic means, or an oral statement. This could involve checking a box while using an internet database, selecting technical settings for information society facilities, or engaging in any statement or act that demonstrates the data subject’s explicit approval of the proposed processing of his or her personal data in this sense. Therefore, silence, pre-ticked boxes, or inactivity cannot be interpreted as consent

Consent should apply to any processing activities undertaken for the same or similar reasons. When processing is carried out for various uses, approval should be obtained for each of them. If permission is to be granted electronically in response to a submission, the request must be simple, succinct, and not overly intrusive to the data subject’s usage of the service. Consent must be ‘freely given, specific, informed and unambiguous.’ Data subjects can withdraw previously given consent whenever they want.

DATA PROTECTION OFFICERS

It must be known that not every data controller or processor needs to appoint a Data Protection Officer (DPO.)  The appointment of a DPO would be pursuant to three conditions wherein the entity needs to be either [A.] a public authority other than a court acting in a judicial capacity, [B.]  the core activities require them to monitor people systematically and regularly on a large scale or [C.] their core activities are large-scale processing of special categories of data listed under Article 9 of the GDPR or data relating to criminal convictions and offenses mentioned in Article 10. However, an entity could voluntarily choose to designate a DPO when they are not obliged to. 

WHO IS RESPONSIBLE FOR COMPLIANCE

The GDPR establishes three positions accountable for compliance: data controller, data processor, and data protection officer (DPO). The data controller determines the manner in which personal data is collected and for what reasons it is processed. Additionally, the controller is liable for ensuring that outside vendors adhere to the rules.

Data processors may be organizational groups responsible for maintaining and processing personal data information, or they could be some third-party firm that executes all or part of such functions. Processors are held responsible for data breaches or non-compliance under the GDPR. Thus, it is likely that both the business and a processing party, such as a cloud service, would be responsible for damages, even though the processing partner is solely at fault.

The GDPR needs both the controller and processor to appoint a data protection officer (DPO) to monitor their data management strategies and GDPR enforcement. A DPO is expected whether a business processes or stores a significant volume of EU citizen data, processes or stores particular categories of personal data, monitors data subjects on a regular basis, or is a public authority. Certain government agencies like law enforcement could be excluded from the DPO provision.

THE GDPR AND THIRD-PARTY AND CUSTOMER CONTRACTS

The GDPR holds data controllers (the company that controls the data) and data processors equally liable (outside organizations that help manage that data). A non-compliant third-party processor implies that the company itself is noncompliant. Additionally, the current law has stringent monitoring requirements that must be adhered to by all in the chain, wherein organizations must remind consumers of their GDPR privileges.

This ensures that all current arrangements with processors like cloud suppliers or payroll service providers and consumers must clearly define roles and obligations. Additionally, the new contracts would specify transparent procedures for data management and protection, as well as how violations are reported.

There are a large number of providers that have access to this personal data which comprises the third-party suppliers and purchasing partnerships that handle data on the entity’s behalf and the GDPR makes it very plain that they must guarantee that all of those external parties comply with GDPR and process the data appropriately.

Client contracts must also incorporate legislative adjustments specific to the contract since they may take a variety of types, from internet click-throughs to structured arrangements in which they consent to certain ways of viewing, accessing, and processing data.

Prior to revising such contracts, the organization must consider how data is handled and handled and settle to a compliant monitoring mechanism. The technology keepers undertake a significant exercise to determine what data belongs within the organization, where it is retained or processed, and where it is exported beyond the organization. If they grasp the data flows and their effect on the enterprise, the entity will begin identifying the suppliers on which they can place the greatest emphasis, both from an information management standpoint and in terms of how they handle such partnerships as well as how they memorialize it in the contract itself.

The GDPR has altered the way the company and protection teams view information. Given the GDPR’s formal approval requirement and companies’ increased granularity in their interpretation of data and data flows, there is also a whole new class of liabilities associated with data accumulation. Consent should be legitimate, freely provided, precise, aware, and involved, as described by the GDPR. However, securing legal consent has proven difficult due to a lack of enforceability. Facebook and its branches WhatsApp and Instagram, as well as Google LLC (targeting Android), were sued instantly for their usage of ‘forced approval.’ It is a somewhat different mindset for legal enforcement, but especially for the way the company views the accumulation and use of the data, as well as for computer technology groups and their approach to data management.

For more information on serving legal papers, contact Undisputed Legal our Professional Process Service (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

 Sources

1. ‘What Is Personal Data?’. Ico.Org.Uk, 2021, https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/key-definitions/what-is-personal-data/.

2.Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, ETS 5   Article 8 – Right to respect for private and family life

1. Everyone has the right to respect his private and family life, his home, and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary for a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

3. Directive 95/46/EC L281, 23 November 1995, p. 31–50

4. ‘The Principles’. Ico.Org.Uk, 2021, https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/principles/.

5. ‘Privacy notices under the EU General Data Protection Regulation’. ico.org.uk. 20th May 2021

6. Art. 6 GDPR Lawfulness of processing

Processing shall be lawful only if and to the extent that at least one of the following applies:

      1. the data subject has given consent to the processing of his or her personal data for one or more specific purposes;
      2. processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract;
      3. processing is necessary for compliance with a legal obligation to which the controller is subject;
      4. processing is necessary in order to protect the vital interests of the data subject or of another natural person;
      5. processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;
      6. processing is necessary for the purposes of the legitimate interests pursued by the controller or by a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data, in particular where the data subject is a child.

2Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.

7. ‘Exemptions’. Ico.Org.Uk, 2021, https://ico.org.uk/for-organisations/guide-to-data-protection/guide-to-the-general-data-protection-regulation-gdpr/exemptions/.

8. Art. 10 GDPR Processing of personal data relating to criminal convictions and offenses

Processing of personal data relating to criminal convictions and offenses or related security measures based on Article 6(1) shall be carried out only under the control of official authority or when the processing is authorized by Union or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects. 2Any comprehensive register of criminal convictions shall be kept only under the control of official authority

9. Hours after midnight on 25 May 2018 by Max Schrems’s non-profit NOYB

CRIME VICTIMS RIGHTS IN NEW YORK

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Was your money or property stolen? Were you hurt or stalked? Maybe your identity was taken? If so, you are a crime victim. If an arrest was made and the police told you that the case is going to court, you may have questions about the criminal case. A criminal case is not the same as a civil case. In a civil case, you start a court case for money or damages against the person who injured you. But, in a criminal case, you can’t bring criminal charges against the person that injured you. You go to the police and the police bring the criminal charges. Criminal cases are handled by a lawyer from the District Attorney’s Office on behalf of the People of the State of New York. The lawyer is called a prosecutor. As a crime victim, you are not a party and you do not need to hire an attorney. What you have to say about what happened is part of the prosecutor’s case against the defendant. But, you do have certain rights in the case. If you are a crime victim, an immediate family member of a person who was killed, or an immediate family member or guardian of a child crime victim, this section is for you.

Crime Victim Rights During the Criminal Case

In general, court personnel must treat crime victims with dignity, courtesy, and respect. Court personnel has a duty to explain your rights to you as a crime victim in the criminal case. See Fair Treatment Standards for Crime Victims. Below is a list of some of your rights. But many of these rights are not automatic. If you want to stay informed about what is going on in the criminal case you should keep in contact with the prosecutor. If you want to have a say about the defendant’s release from prison, you must contact the Parole Board.

Right to Know What Happening– If you want to be notified of what is happening during the criminal case, give the prosecutor your address and phone number. You have the right to be notified of:

  • defendant’s first appearance before a judge
  • defendant’s release from jail while the criminal case is pending
  • entry of a guilty plea
  • trial
  • sentencing
  • maximum and minimum terms of any prison sentence
  • reversal or modification of the judgment after an appeal
  • defendant’s release – speak to the prosecutor if you want to be notified or register with VINE (Victim Information & Notification Everyday System)

Right to Protection– You have the right to be protected from threats, physical injury, or any intimidation. The court must help you with the steps to take to be protected, including getting an order of protection if you need one.  When you are waiting to appear in court, you are entitled to wait in a secure area away from all other witnesses in your case.

Right to Have a Say in Sentencing and Parole– A pre-sentence report is prepared by the Department of Probation whenever the defendant has been convicted of a felony, or a misdemeanor when the sentence includes probation or more than 180 days in prison. The Pre-Sentence Report can contain a Victim Impact Statement from you. It is important that the prosecutor knows your views about sentencing.

You have a right to share your views with the court concerning the release of the defendant while the case is pending. You also have a right to share your views about sentencing or alternatives like community supervision and Restitution.

If the defendant is being sentenced to a felony, you have a right to make a statement. If you want to speak in court you have to ask the Judge at least 10 days before the court date. Ask the prosecutor to help you.

If the defendant goes to prison, you have a right to submit a written or recorded Victim Impact Statement or appear in person before the Parole Board when the Board is deciding whether to release the defendant. Learn more from the Department of Corrections and Community Supervision.

Restitution is when the court orders the person who committed the crime to pay the victim back for a loss that happened because of the crime. It must be ordered by the court at the Sentencing. Restitution is NOT payment for future losses, mental anguish, or “pain, and suffering.” If you are a victim of a crime, ask the prosecutor in the criminal case to ask the Judge to order the defendant to pay restitution for your expenses. Keep records of your losses and expenses that were a direct result of the crime, like original receipts, and give copies to the police, prosecutor, and Department of Probation. Your claim for restitution will be included in any probation investigation report (pre-sentence, pre-plea, or pre-disposition report).

The Judge may order restitution in a lump sum or by a payment schedule. If the Judge orders restitution you do not have to deal directly with the defendant. Payments will come to you from the local probation department or the Department of Correctional Services. 

Examples of Restitution Expenses– You can ask for restitution to pay for any expense that you had to pay because of the crime. Common examples:

  • Medical bills, like any out of pocket costs for doctors, physical therapy, ambulance, transportation, and emergency services
  • Counseling bills
  • Loss of salary or earnings
  • Property expenses, like to replace, repair, and/or clean damaged or stolen property
  • Funeral expenses
  • Insurance deductibles
  • Incidental expenses, like changing locks, towing fees, and the cost of changing your phone number

 

Restitution Hearing– The defendant can object to the amount of restitution ordered by the judge. The court may hold a restitution hearing. The defendant may question the number of your losses. The court may consider the defendant’s ability to pay. The prosecutor may contact you and ask you to testify at the restitution hearing. Tell the prosecutor if you are uncomfortable about appearing in court.

Restitution From A Child– Children can be ordered to pay restitution by the Family Court. But, restitution from juvenile delinquents may be limited to $1,500 and restitution from persons in need of supervision(PINS) may be limited to $1,000. In some cases, you can get money from the child’s parents or guardians by starting a civil case.

Crime Victim Compensation– There are ways to recover your losses or expenses that happened because of the crime:

  • You can recover money from the defendant in the criminal case. The prosecutor will ask the Judge for this for you. 
  • You can file a civil case against the defendant or a liable third party. Visit When Someone Owes You Money to learn more. You have to hire a lawyer or do this yourself, the prosecutor does not file a civil case
  • If the crime happened while you were at work or happened because of work, you may be able to collect workers’ compensation benefits. These benefits are limited to medical care, payment for lost wages, payment for permanent disability, rehabilitation or death benefits
  • If the crime is related to a vehicle, you may qualify for benefits under an automobile insurance policy or MVAIC (Motor Vehicle Accident Indemnification Corporation)
  • You may be able to get compensation from other sources such as mortgage insurance, homeowner’s/renter’s insurance, liability insurance, disability (private or state), veteran’s benefits, social security benefits, or a funeral/burial policy
  • You can file a claim with another victim assistance program, like a rape crisis center, or domestic violence program. Ask the prosecutor’s office about these programs or search here
  • You can file a claim with the New York State Office of Victim Services for losses that you cannot recover elsewhere. File the claim within one year of the crime or within one year of the victim’s death

You can seek assistance from more than one source, but you can’t be paid twice for the same loss or expense.

Victim Impact Statement– A Victim Impact Statement is written or verbal information from the crime victims about how the crime has affected them. Victim Impact Statements are used at Sentencing and Parole.

The Victim Impact Statement is the crime victim’s story of how the crime affected his or her life, how life was before the crime compared to after the crime, and how the crime has impacted other people. The Victim Impact Statement may include:

  • Details of physical impacts, like injuries, disfigurement, disability, ongoing medical treatment, and rehab
  • Details of emotional and psychological impact, like feelings of guilt, anger, fear, anxiety, depression, loss of trust, safety or security concerns, insomnia, nightmares, counseling, substance abuse
  • Details of financial impact, like medical bills, counseling expenses, transportation costs to medical and court appointments, loss of income
  • Details of lifestyle, family, or social impact, like changes in routine, childcare, divorce, no longer participating in events or activities, no longer driving, no longer working, forced relocation
  • A statement about what outcome the crime victim would like and why
  • Photographs (these are not returned)

A Victim Impact Statement should not include profanity or threats to the defendant or court personnel.

Pre-Sentence Report– Prior to sentencing, the Department of Probation prepares a pre-sentence report for the judge. The Judge takes the Victim Impact Statement into account when deciding the disposition of a case. The investigation unit of the Department of Probation usually contacts the crime victims to find out how the crime impacted their lives. This written report becomes part of the Probation Department’s investigation and reports to the court. A crime victim can write his or her own statement or the Department of Probation can write the information into the report. Victim Impact Statements are seen by the Judge, prosecutor, defense attorney, and probation officer. 

Parole Board– A Victim Impact Statement is also used by the Parole Board when deciding whether to release the inmate from prison. A crime victim can submit a written or recorded statement. For more information, visit the Department of Corrections and Community Supervision.

Sex Offender Registry– Since 1996, any defendant convicted of a sexual offense or an attempt to commit a sexual offense must register with the New York State Sex Offender Registry. This includes defendants convicted in other states.  Only level 2 and 3 sex offenders are listed on the public directory. Anyone can search the sex offender registry by offender name, county, or zip code. The registry provides locations and descriptions, including pictures where available, of registered sex offenders. Anyone can sign up for sex offender alerts that email you if a sex offender moves in or out of your neighborhood.

A defendant convicted of a sex offense must pay a sex offender registration fee and a supplemental sex offender victim fee (the money does not go to the victim). The defendant is also required to provide a DNA sample and pay a fee for his or her DNA to be added to the New York State DNA Databank.

Criminal Domestic Violence Cases– Most criminal domestic violence cases start with an arrest and criminal charges for Domestic Violence Acts. There is no crime called domestic violence. These are acts done by one partner to another partner in an “intimate relationship.” (Learn more at Domestic Violence Basics) A criminal court order of protection can be ordered against a person who has been charged with a crime.

A criminal domestic violence case can also start by going to the police or the district attorney to report a crime. The police can charge the other person with a crime and during any of the court appearances in Criminal Court, the court can issue an Order of Protection.

Important! It is best to get help from a domestic violence advocate who knows the process and can support you through the case and help you stay safe. The District Attorney’s Office will have people that can help. And you can visit Domestic Violence Resources to find more help.

Mandatory Arrest– New York State has “mandatory arrest” for domestic violence cases. This means that in an intimate partner relationship the police must make an arrest when:

  • A felony is committed
  • A person disobeys an order of protection by making contact when there is a stay-away order
  • A person disobeys an order of protection by committing a family offense crime (see Domestic Violence Acts)

In mandatory arrest cases, even if you ask the police not to make an arrest, they must do so. But, the police don’t have to make an arrest when you don’t want them to if:

  1. There is no order of protection, and
  2. The abuser commits a misdemeanor crime.

The police are not allowed to ask you if you want the abuser arrested or if you want to “press charges.” But, the police can make an arrest if they think that is the best course of action.

A mandatory arrest does not always happen right away. It means that the police must make an arrest even if the abuser leaves before the police arrive.

Whenever the police investigate domestic violence, they must give the victims written notice of their legal rights. See Information for Victims of Domestic Violence.

CPL 140.10(4) 

Temporary Order of Protection– There are many different courts that decide criminal cases. The court that decides the case, depends on the charges, the age of the abuser, and where you live.  After an arrest, the abuser will go in front of a judge. This is called an Arraignment. Unlike a Family Court Case, the case is not between the victim and the abuser. The government, named the “People of the State of New York” starts the case against the defendant. The lawyer for the government is called a prosecutor or assistant district attorney (ADA). The abuser is called the defendant. The victim of abuse is called the complaining witness.

At the arraignment, the judge can either:

  • Set Bail
  • Hold the abuser in jail without bail
  • Release the abuser. If the abuser is released, they must come back to court on a future date.

An arraignment usually takes place within 24 hours of the arrest. The District Attorney asks the judge for a Temporary Order of Protection (TOP) for the victim or complaining witness. The judge decides whether to issue the Order of Protection and what terms and conditions to put in the order.

The Temporary Order of Protection sets the rules the abuser must follow while the order is in effect. The order protects the person the defendant is suspected of harming, their property, and in some cases, their children, pets, or other relatives.  

Drug Case-Your case may be sent to a special Domestic Violence courtroom that deals only with these cases. If you have an Order of Protection from both Family Court and a criminal court, your case may be sent to an Integrated Domestic Violence (IDV) courtroom. These courtrooms have better resources for domestic violence cases. Read more about Domestic Violence (DV) and Integrated Domestic Violence (IDV) Courts.

The District Attorney prosecutes the defendant for the crimes. You do not participate in the case other than as a witness. You don’t need an attorney.

No criminal charges can be dropped unless the District Attorney’s office and the judge agreed to drop the charges. If the charges against the abuser are dropped, the Temporary Order of Protection is no longer in effect.

If the abuser violates the order during the case, the abuser could be charged with criminal contempt.  

Final Order of Protection– If the abuser is convicted, the judge can order a final Order of Protection, counseling, conditional discharge, a fine, probation, and or jail. The judge can also order payment of Restitution to pay you back for medical bills and other costs. The Order can last from 1 year to several years, depending on the crimes. A final Order of Protection is good wherever you go. Even if you travel or move to another state.

If the criminal case is dismissed, the Order of Protection will no longer be in effect.

For more information on serving legal papers, contact Undisputed Legal our Process Service department at (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

HOW NEW YORK STATE HANDLES SEXUAL ABUSES OF CHILDREN

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A person who sexually abuses a child under 18, can be punished in different ways in the courts. In a criminal case, the People of the State of New York charge the abuser with crimes to punish and possibly imprison them. In a civil case, the victim sues the abuser for money to make up for any harm caused by the sexual abuse.

There are laws that say how long after an event, a court case can be started based on those events. These laws are called Statutes of Limitations. Under the Child Victims Act, child sex abuse victims now have more time to seek justice against their abusers. CPLR 214-G, CPL 30.10(3)f.

Time Period for Starting Cases-There is different time periods for starting cases against the child sex abuser or the institution that covered up or was involved in the abuse. The time period depends on the type of case.

Criminal Cases– A criminal felony case can be started up until a child sex abuse victim turns 28. You can’t bring criminal charges yourself. You go to the police or the District Attorney and they bring criminal charges. You are not a party in the case and you do not need to hire a lawyer.

Note: When the child sex abuse victim is under 11, there is usually no time limit for criminal charges. CPL 30.10(2)a.

Civil cases– People who were sexually abused as children (under 18) can start a civil case against their abuser or a liable third party, like a church or school until they are 55 years old. A civil case can be started even if the abuse happened decades ago. But a civil case for damages is not brought by the prosecutor. Instead, you or your lawyer sues the sexual abuser or a third party. You do not need to file a Notice of Claim before the case is started. Start the case in the Supreme Court.

Important! For one year, between August 14, 2019 – August 13, 2020, a child sex abuse victim can start a civil case:

  • No matter how old you are
  • No matter how long ago the abuse took place
  • Even if the claim was too late under the old statute of limitations
  • Even if you sued the abuser before and the case was dismissed because you waited too long
  • Even if a Notice of Claim was never filed
  • Whether you are suing the abuser or organizations or persons that should have done something to stop or prevent the abuse from happening (like a school, an employer, or a place of worship)

These cases are called “revived CPLR 214-g” cases. Special Rules apply. When the case is ready for trial, the case can be tried before other cases that have been waiting. This is called a “preference.” Read about trial preferences in CPLR 3403.

Criminal Child Sex Abuse Crimes-Most sexual offenses as defined in Penal Law 130 that are committed against a child under 18 are covered by the Child Victims Act. Also covered:

  • Incest in the first, second, or third degree. PL 255.27, PL 255.26, PL 255.25
  • Use of a child in a sexual performance. This means sexual acts in a play, motion picture, photo, or dance. PL 263.05

For more information on serving orders of protection, contact Undisputed Legal our Process Service department at (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

Things to Think About Before You Represent Yourself in Court

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The court system can be confusing and it is a good idea to get a lawyer if you can. The law, the proofs necessary to present your case, and the procedural rules governing cases in the Law Division, Civil Part are complex. Since valuable claims or potentially heavy judgments may be at stake, most litigants appearing in the Law Division, Civil Part has a lawyer. If you are being sued, please contact your insurance company to see if they might provide a lawyer for you. Most likely your opponent will be represented by a lawyer. It is recommended that you make every effort to obtain the assistance of a lawyer. If you cannot afford a lawyer, you may contact the legal services program in your county to see if you qualify for free legal services. The telephone number can be found online or in your local yellow pages under “Legal Aid” or “Legal Services.”

If you do not qualify for free legal services and need help in locating an attorney, you can contact the bar association in your county. That number can also be found in your local yellow pages. Most county bar associations have a Lawyer Referral Service. The County Bar Lawyer Referral Service can supply you with the names of attorneys in your area willing to handle your particular type of case and will sometimes consult with you at a reduced fee. There are also organizations of minority lawyers throughout New Jersey, as well as organizations of lawyers who handle specialized types of cases. Ask your county court staff for a list of lawyer referral services that include these organizations.

If you decide to proceed without an attorney, these materials explain the procedures that must be followed to have your papers properly filed and considered by the court. These materials do not provide information on the law governing your claims or defenses; information on how to conduct pretrial discovery; information on alternative dispute resolution procedures, such as arbitration or mediation, that may be available or required in your case; information on the kinds of evidence you need to prove your claims or defense at trial; or information on other procedural and evidentiary rules governing civil lawsuits.

What You Should Expect If You Represent Yourself

While you have the right to represent yourself in court, you should not expect special treatment, help, or attention from the court. The following is a list of some things court staff can and cannot do for you. Please read it carefully before asking the court staff for help.

• They can explain and answer questions about how the court works.

• They can tell you what the requirements are to have your case considered by the court.

• They can give you some information from your case file.

• They can provide you with samples of court forms that are available.

• They can provide you with guidance on how to fill out forms.

• They can usually answer questions about court deadlines.

• They cannot give you legal advice. Only your lawyer can give you legal advice.

• They cannot tell you whether or not you should bring your case to court.

• They cannot give you an opinion about what will happen if you bring your case to court.

• They cannot recommend a lawyer, but we can provide you with the telephone number of a local lawyer referral service.

• They cannot talk to the judge for you about what will happen in your case.

  • They cannot let you talk to the judge outside of court. • 
  • They cannot change an order issued by a judge.

Keep Copies of All Papers

Make and keep copies of all completed forms and documents related to your case.

For more information on serving legal papers, contact Undisputed Legal our Process Service department at (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

DID YOU KNOW SOME CRIMINAL CONVICTIONS CAN BE REMOVED?

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Do you have a criminal conviction in your history you would like to have sealed from public record?  Is it preventing you from specific jobs? One mistake shouldn’t follow you for life!  If you are ready to remove this criminal conviction from your record, we can assist.   For more information, contact Undisputed Legal Inc @ (212) 203-8001 or visit undisputedlegal.com; representatives are ready to help you.

For more information on serving legal papers, contact Undisputed Legal our Process Service department at (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST.  If you found this article helpful, please consider donating.  Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us!  We also invite you to check out our Frequently Asked Questions About Process Servers.

Landmark Case – Hazelwood v. Kuhlmeier (1988)

Censorship, Student Press Rights

” . . . educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” —Justice White, speaking for the majority

Hazelwood East High School Principal Robert Reynolds procedurally reviewed the Spectrum, the school’s student-written newspaper, before publication. In May 1983, he decided to have certain pages pulled because of the sensitive content in two of the articles, and acted quickly to remove them in order to meet the paper’s publication deadline. The journalism students felt that this censorship was a direct violation of their First Amendment rights. The Supreme Court decided that Principal Reynolds had the right to such editorial decisions, as he had “legitimate pedagogical concerns.”

Landmark Case – Gibbons v. Ogden (1824)

State Rights, Commerce Clause

“… Few things were better known, than the immediate causes which led to the adoption of the present constitution … that the prevailing motive was to regulate commerce; to rescue it from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law.” —Chief Justice John Marshall

In 1808, the government of New York granted a steamboat company a monopoly to operate its boats on the state’s waters, which included bodies of water that stretched between states. Aaron Ogden held a license under this monopoly to operate steamboats between New Jersey and New York. Thomas Gibbons, another steamboat operator, competed with Aaron Ogden on this same route but held a federal coasting license issued by an act of Congress. Ogden filed a complaint in New York court to stop Gibbons from operating his boats, claiming that the monopoly granted by New York was legal even though he operated on shared, interstate waters. Gibbons disagreed arguing that the U.S. Constitution gave Congress the sole power over interstate commerce. After losing twice in New York courts, Gibbons appealed the case to the Supreme Court. The Supreme Court determined that the commerce clause of the Constitution grants the federal government the power to determine how interstate commerce is conducted.