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Zoey, JD
Zoey, JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 15099
Experience:  18 yrs of NYS criminal defense. Extensive arraignment, hearing, trial experience.
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MY SON GOES TO TRIAL ON JUNE 11TH I WAS TOLD HE COULD BE TRIED

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MY SON GOES TO TRIAL ON JUNE 11TH I WAS TOLD HE COULD BE TRIED BY A JURY OR THE JUDGE WHY BY A JUDGE AND NOT THE JURY. HE IS BEING CHARGED WITH CRIMINAL THREAT .ROBBERY ,COMMERICAL BURGLARY AND PETTY THEIF. THE JUDGE LOOKED AT THE TRANSCRIPTS AND SAID TO THE DA FROM WHAT SHE WAS READING ALL HE MAY GET IS PETTY THEFT. HE HAS BEEN IN JAIL SINCE MARCH 23,2010 AND THE VICTIM SAID ON THE STAND THAT HE AND MY SON HAD A MISUNDERSTANDING AND HE NEVER MADE A THREAT TO HIM AND HIS DID NOT FEAR MY SON. THE POLICE ARE SAYING ALL OF THE ABOVE AND THE WERENT EVEN THERE. THE POLICE JUST HAVE A BEEF WITH MY SON BECAUSE HE LIVES IN A NOT SO GOOD NEIGHBORHOOD BUT BELEIVE ME HE WONT BE RETUNING I HAVE BEEN TRYING TO GET HIM OUT FOR 3 YEARS. CHEAP RENT(lol)FOR WHATEVER REASON THE DA HASNT OFFERED HIM A DEAL WHY IS THAT. THIS IS THE 2ND DA AND THIS IS HIS 2ND TIME APPEARING FOR THE CASE SO WHAT IS YOUE OPPINION. THANKS
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Zoey, JD replied 3 years ago.
Chat Conversation Started
FranL :

Hello,

My first opinion is that I'll be very surprised if your son's case actually gets tried on June 11. If he's only been to court twice already, and the first appearance was his arraignment, there's a long way to go until trial. And as you rightly note, there hasn't even been an offer yet.

PC 459, which is the commercial burglary, can be prosecuted as a felony or a misdemeanor. If it's going to proceed as a felony, it must first be indicted. Lawyers also need time to file motions requesting hearings, conduct investigations, complete all discovery matters and prepare their files.

You ask about why a judge trial. Defendants who are entitled to a jury trial are allowed to waive that right and try the case directly to a judge. There are many reasons that a lawyer might recommend the client do that. Generally, a jury would be more sympathetic to a defendant than a judge would be, since a judge is trained not to let sympathy interfere with the application of the law to the facts of the case. Jurors are told not to be sympathetic, but they don't have the training to help them remain fair and impartial. So if a defendant has a case where the law may well go against him, he would want the opportunity for sympathy that a jury could give. If the crime is a terrible one, however, with ugly facts, or it's not so terrible but the defendant has a lengthy criminal history which could prejudice him in the eyes of a jury, then he might do much better with a judge trial.

Sometimes too, a judge gives a hit about how he sees the case. Based on what you've said, this judge appears to be letting the DA know that he thinks all this is would be a petty larceny. Although he's not promising to convict only of a petty larceny after trial and would not have to do that (since hearing all of the evidence could make him feel very differently from what he said on the record), if your son were afraid to try the case to a jury and risk a felony conviction, he might like the idea of trying the case to a judge who seems to believe that the DA overcharged the defendant.

FranL :

I'm not in any position to tell him or you which way to go with that. I leave that to his lawyer. But I hope this clarifies what occrred in court.

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Customer:

no this is not my sons 2nd time it is the DA 2nd time he had another da when we first started. this has been going on since march 23,2010 my son has been in jail since then.he does not have a criminal record like i said the victim said that my son never threaten him they just had a misunderstanding he never called the police until the second day when my son came in the victims store to get some things on credit as he always does but the victim wasnt there he stated on the phone that he was on the way but never showed after 30min so my son took what he want and told the clerk to put it on his tab . so when the victim saw the tape where my son took the items thats when he called the police and when the police came they viewed the tape and went to my sons house and arested him. the victim never called about the the misunderstanding the day before he just called about the next day the police said the other crimimal threat. then when we went to arraignment and that when robbery ,commerical burgulary and petty theft was add by the first da. so do you think some of the charges my be dropped if he goes to trial because all the da has offered was 2 years in state pen and accept 3 stikes and three felonies. and i think the da must be in sane what do you think can happen please ans so i can accept

FranL :

Sorry about the delay in responding to your message. It's been one of those nights where I have had the computer up but haven't had much of a chance to sit in front of it.

FranL :

So you're saying that there was a first DA assigned to this who took a very hard-line approach to the case, but that now there's a new DA. And the judge is telling the new DA that he doesn't see much more than petty theft, which is a misdemeanor.

That would certainly support your take on this case, which is that the DA may want to prosecute it, they don't seem to have the evidence they need to make the serious charges stick. This doesn't look like a strong case for the state on the basis of what you're telling me. Is the victim prepared to say at trial that this was all a misunderstanding?

Customer:

he was brought to the witness stand back in april where he and the cop testified and he said 6 times that he wasnt afraid of my son and that he didnt threaten him . the cops and the da approched the victim outside the courtroom before he testified and tried to get him to say my son threaten him but i heard him say thats not true he didnt threaten me. also i hired a private investigater to go and interview the victim and the clerk and they both said on tape that my son never threaten then but he did take something and that they were afraid of the police because they were threathing them so what the victim said in april is in the transcript and at the start of this the victim said he didnt want to proscute and he would not come to court so they had to issue a supeoina and told him if he didnt take it they were going to put him on some type of hold. each day he ask about mythings son and he sends my sons kids cookies and other . and yes the first da was hard and so is this one . my son bail started at 50, 000 and by the time they add the other charges it was raised to 145,000 then at the end of april we went to a bail hearing and the judge dropped it to 100,000 and the da got really upset. i didnt get him out so when and if is found guilty on any of the charges he will get some time for what he has already served. thanks

Customer:

one more thing the da and the judge are both new . we are in superior court.

FranL :

Thanks for clarifying.

FranL :

If the state took off an experienced DA an put in a relative new one, in my experience that means that usually means the DA's office is aware that they have a bad case. So that's also a piece of good news. And the judge may be new, but his understanding of the case is favorable to the defense.

FranL :

No case, however good it looks for the defense, is a sure thing. If the prosecutor didn't think it could convict of at least something, they wouldn't want to go to the time and expense of a trial. But if you want the opinion of a seasoned criminal trial lawyer (me) I've won a lot of cases that didn't have as many good facts going for them, as you've got going for you. Jury trial or judge trial, based on all you've said, this is a very messy case for the state, and as good a defense case as any is likely to be.

FranL :

I wish you and your son good luck!

FranL :

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

Live Chat will close but you can continue to post follow-ups on this thread if you need clarification.




Zoey, JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 15099
Experience: 18 yrs of NYS criminal defense. Extensive arraignment, hearing, trial experience.
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