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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
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Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hi Fran, I hope you had a great Turkey Day. Whats the legal

Resolved Question:

Hi Fran,

I hope you had a great Turkey Day. What's the legal definition of a false arrest and under which circumstances is one classified as such? I believe that's what happened in my case where I am the Defendant. Also, I'm yet to hear from the D.A.s office regarding the possibility of having to give a court testimony in the case where I'm the Complainant. What's the ballpark time frame for them to contact me? - I don't know what date the responding party's trial|hearing is scheduled for. Also, given the nature of the crime and threats with Italian Mafia on the Defendant's part, is it possible that the Prosecutor would be cautious to put me on the stand to testify against the assailant?

- A
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 4 years ago.
Hi Alex,

I'm about to sit down to dinner, so I'll tackle this a bit later. Hope your holiday was good as well. Mine was low-key, and I ate too much!
Customer: replied 4 years ago.
Sowwy, lol. It seems that I always pick the "right" time to contact you... Mine's was low-key too - solo turkey dinner, talking to my Mom overseas and watching football. NO visits to any local Staten Island "gourmet" establishments...
Expert:  Zoey_ JD replied 4 years ago.
No apology necessary. Just didn't want you to think I was ignoring your post, as I always show as being on line when my computer's on, which it is whether I am sitting at it or not.

In any case, to get to your questions. Civil law isn't my area, but I don't see a good case for false arrest here. False arrest in New York would be a suit against the police department for having arrested you. A better case might be going against the bartender for Malicious Prosecution. You would have to establish establish the four necessary elements of this offense:

(1) that a criminal proceeding was commenced;
(2) that it was terminated in favor of the accused;
(3) that it lacked probable cause; and
(4) that the proceeding was brought out of actual malice.

In either instance you will need the case against you to be dismissed before you can proceed.

As you can see from your own experience, criminal matters take time to resolve. There is no real fixed frame. Your case against the bar owner will drag on until he either gets tired enough of coming back to take a plea, or it gets ripe enough for the judge to insist that it be tried. If the former, you will not be needed to testify at all, though the DA will keep in touch with you now and again to make sure that they know where you are in case they do have to bring you in. If the latter, you'll have to testify at trial.

The case against the bar owner cannot be made out unless you testify, so the DA will need you to take the stand. Period. Any active attempt at intimidation to try to prevent a witness from testifying is a felony in New York. You can express your concern to the DA if you do have to testify. Every witness in a criminal case has some fear of reprisal by or on behalf of a criminal defendant. I'm sure that the DA will be able to offer you some reassurance that if real protection is necessary they can and will provide it.

_____

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.


Edited by FranL on 12/1/2009 at 1:50 AM EST
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16241
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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