Legal

CRIME VICTIMS RIGHTS IN NEW YORK

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 have 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 for 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 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 amount 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 guardian 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 impact, 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 report 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:

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 agree 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 information on serving orders of protection, contact undisputedlegal.com or (212) 203-8001. Representative are ready to assist you, we serve all legal papers, call now!

HOW NEW YORK STATE HANDLES SEXUAL ABUSES OF CHILDREN

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 are 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 information on serving legal papers, contact undisputedlegal.com or (212) 203-8001. Representative are ready to assist you, we serve all legal papers, call now!

Things to Think About Before You Represent Yourself in Court

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.

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DID YOU KNOW SOME CRIMINAL CONVICTIONS CAN BE REMOVED?

By: Undisputed Legal Inc/Court Service Department

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 information on serving legal papers, click here or call (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 by clicking here.

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.