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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 17343
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My partner was charged for embezzlement about 8 years ago.

Customer Question

My partner was charged for embezzlement about 8 years ago. He served 120 days and had three years probation. Half way through he reported address change by mail. They didnt' get it an issued a warrent. He has waiting 7 yers to turn himself in, he is now doing 30 days waiting for vickers trial. What are we looking at. I have been told that he could get as little as the 30 days to prison. No restitution was ordered to be paid back, and he has had a flawless record for the past 7 years. No new violations.
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 4 years ago.
Jacustomer,

Before I try to answer this can you clarify the following:

Are you saying that he was violated on technicals solely because he failed to report an address change? Or did he fail to report to probation after having done half of his probation time? Was his probation supervised or unsupervised?
Customer: replied 4 years ago.
Here is the link to his case.<br /><br />xxxxxxxxxxxxxxxxxxxxxxxxxxxxxViolation:<br />REPORT TO THE PROB OFFICER IN PERSON IMMEDIATELY 2-UPON RELEASE FROM CUSTODY ND THEREAFTER ONCE EVERY FOURTEEN (14) DAYS OR AS DIRECTED. <br /><br />Formal Probation.<br /><br />What happened really is he was going to school in one city, and living on campus during the week and returned home on the weekends. His mother takes care of hadicap adults and when probation came they said he didn't live there. He called probation that same day and they said they had already requested a warrent he was scared and never went back. :o(
Expert:  Zoey_ JD replied 4 years ago.
Hi,

I have had the website redacted because this is a public website. I did, however, see the information.

One last question that I forgot to ask. Did he return voluntarily on the warrant, or was he stopped for some other reason, like a traffic matter, and it turned up?
Customer: replied 4 years ago.
We decided it was time to take care of this matter and he went in on his own. He was not picked up. Thanks for your help.
Expert:  Zoey_ JD replied 4 years ago.
Thanks! That, at least, is good news.

Give me a bit to type up a reply. Back within the half hour.

Customer: replied 4 years ago.
Thank You so much, we have spent $2000 on a Attourney and are just not getting any answers. I will await your reply.
Customer: replied 4 years ago.
HI,
Are you still working on my answer?
Thanks
Expert:  Zoey_ JD replied 4 years ago.
Hi,

The reason you can't get any answers is that probation is very tough to second guess. And while in some ways it appears as if your partner has turned his life around, he was also deeply in the wrong. I assume that you both know that he can't come out of this with a free pass. ''

He was -- still is -- a sentenced prisoner and his sentence was suspended only because he was to have complied with the dictates of his probation. Because he didn't, he could be resentenced to the maximum time the law allows for the charge to which he pled. I have looked up the embezzlement statute, and as this was a felony charge, assuming there was only one count, it would appear that his maximum risk would be 3 years, minus the time he initially spent on the case before he began his term of probation. The possibility that the state might want some additional time on top of that for bail jumping can't be ruled out.

What he's got in his favor is his voluntary return. That was a gutsy thing to do after a 7 year absence and one that should indicate that he's accepted responsibiity for the mistake he made 7 years ago, has undergone some changes and is seeking to make this right. From what you have also said, if his past 7 years involved no contact with the criminal justice system, that would be another plus. Finally, if he's done other admirable things -- you mentioned that he had been in school -- if he earned a degree, began a career, was earning good living, that too is commendable.

What he's got going against him is that even if he never really moved he ran scared for 7 years. That's a very long time, and it will have an effect on his credibility as a trustworthy person. He took a little problem and turned it into a big one. He was younger then and probably little more than a scared kid, but it's not wholly excusable either.

Probation has a whole arsenal of sanctions they can use when a probationer violates the conditions of his release that range from an increased reporting schedule on the one extreme to revoking probation outright on the other. What probation will do in your partner's case will depend mostly on whether they will still be willing to work with him at all. If they want to wash their hands of him completely, the only alternative would be jail.

If probation decides to revoke probation altogether, they usually will make a recommendation to the judge about how much time they want him to do. Although the judge generally gives probation's opinion a great deal of deference, the judge is not bound by probation's recommendation. If probation is revoked, the judge has the power to resentence the defendant to an appropriate jail alternative defined by the state's sentencing law for the crime he originally pled to. The judge can also order probation to take him back, though again, I don't think it's likely to be his first inclination.

I'm guessing that the best he'd be likely to get here would be electronic monitoring, if his lawyer pushes real hard for it, and I don't think it's unreasonable for him to get that under the circumstances that you've described. But if he has to do jail, it will be well in excess of 30 days.

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Zoey_ JD
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Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.