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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16494
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My motion hearing is tomorrow. I have left my public defender

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My motion hearing is tomorrow. I have left my public defender 2 voice mails and 4 emails in the last 30 days. What happens if she didn't file any motions mentioned above or any at all? Can I ask the Judge for an extension and ask for another attorney from legal aide society? This doesn't make any sense to me. I know the public defenders have a tremendous case load...but would have expected at least a short response?
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 3 years ago.
Hi,

If your lawyer has failed to file motions she could technically be precluded from filing them late, but in general, at least in Criminal court rather than Supreme, she would almost certainly be granted an extension.

The motion hearing is usually not a real hearing. It's simply the judge informing the lawyers that he's read the motions and letting them know what hearings he's granting. Usually, he will grant all hearings the defense asks for. Criminal judges are mindful of a defendant's Constitutional rights and will allow them to challenge the evidence against them. Doesn't mean they will win the hearings, but it does mean they'll get a shot at it.

Some public defenders are better than others about returning calls. One problem is that they are usually not at their desks during regular business hours. IWhen you meet with your lawyer try to find out from her what a good time to contact her would be when she might be found at her desk. If she ducks you and simply won't conference her case with you, you can let the judge know that your attorney will not communicate with you and does not appear to be working in your interest. Generally, the judge will appoint you another one -- but he will do that once only.

So before you involve the judge, if your lawyer is from the Legal Aid Society, call Legal Aid and ask to speak to your lawyer's supervisor. Explain that you are concerned about your case but your lawyer is not returning your calls and you're not convinced that she's doing anything for you because she won't communicate with you at all.

That should help.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16494
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and other Criminal Law Specialists are ready to help you
Customer: replied 3 years ago.
My case is in the Supreme Court tomorrow so it's too late to complain to her supervisor. I hope she did file motions on my behalf...but if she didn't are you saying that the judge might not give her an extention since it's the Supreme court. And if that's the case, should I speak up at the hearing and shoe the judge the four emails I sent my public defender in the last 30 days asking her to file mtions?
Expert:  Zoey_ JD replied 3 years ago.
Hi,

Sorry. I should have reviewed the previous questions. Your matter has been indicted and I forgot that.

If a Supreme Court judge has set a motion schedule, your lawyer has almost certainly filed them. Supreme Court judges adhere more closely to timelines than do Criminal Court judges. Some judges will allow a lawyer an extension for motions while others will not. And it also may depend on the reason for the delay.

The judge will likely not let you speak to him at all, except through your lawyer. If you want to remove your lawyer from the case, you can ask your lawyer to make that application for you to the judge. She will do so, and you won't be hurting her feelings. Once she does that, the judge may ask you why you want her off the case. You can then tell him that you have sent her emails and left messages and can't ever get her to communicate with you.



Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16494
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and other Criminal Law Specialists are ready to help you
Customer: replied 3 years ago.
Hello Fran,

I attended my first motion hearing last week and for the first time found out some details of what my former partners are are claiming that I stole that was purportedly on the laptop. As I suspected, the "scientific material" they claim is a software/trading model they licensed from a 3rd party which is only accessible via the 3rd party's private/secure server. You need a user id and a password XXXXX access it and you can't download the algorithm. I never received a user id or password! My former research assistant was the only one that ever got a user id and password XXXXX it and he ran the model daily out of his own laptop.

Are the above facts exculpatory that could be submitted to the judge and the ADA rather than wait for an actual trial? Also, doesn't the above and the fact that they've continued running the model daily after my partner pushed me out make obvious that their extortion claims were false since my threats (if I ever made them to begin with) had no meat since I didn't take the only copy?
Expert:  Zoey_ JD replied 3 years ago.
Hi,

While your lawyer could potentially bring this up with the DA and the court now, I don't have enough information to say that it's worth doing. While I understand your point completely, and I certainly can't blame you for wanting this matter behind you sooner rather than later, the issue of whether you had an ID and password XXXXX be a disputed fact. If so, the DA and the judge would not take your word that you had no access. The DA will have the right to try to prove beyond a reasonable doubt that you did. So while your facts are very good for the defense, as far as the over all case is concerned, they are not likely to lead to a dismissal at this time.
Customer: replied 3 years ago.
I didn't expect them to take my word for it. Would an affidavit from my former assistant or the 3rd party to the fact that I never got a user id or password XXXXX irrefutable?
Expert:  Zoey_ JD replied 3 years ago.
Hi,

You need to talk to your lawyer about this. I cannot speculate beyond a certain point when I am not privy to the entire record. It's not fair to either of us if I do.

If your former assistant is the person -- and the only person -- who could have assigned you a password XXXXX a user ID, then it could be nearly impossible to refute. Otherwise, he's just another potential defense witness.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16494
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and other Criminal Law Specialists are ready to help you
Customer: replied 3 years ago.
Sorry I should have been more clear. The 3rd party vendor is the only person/source that creates user id and passwords to access their system. They created one for my assistant but never one for me. Again, I have asked my public defender this but as usual no response.
Expert:  Zoey_ JD replied 3 years ago.
Hello,

Thanks for the clarification. An affidavit from your former assistant would not be particularly useful. If the 3rd party vendor is the only source of the ID and password XXXXX if that person were willing to testify under oath that you were never given a password XXXXX an ID to the software, then that would seem to be very helpful information.

Again, I'm operating in a vacuum, and I cannot tell you how helpful it might be. You ought to give your lawyer the name and phone number of the 3rd party vendor and let him verify your information. Strategy calls -- when and how helpful evidence is presented -- is in the province of the attorney and not the client. If your lawyer does find it completely exculpatory, he can certainly raise it to the DA and the court and move for a dismissal. On the other hand, if he feels it's less than that, he will save it for when it will do the most good. That is, rather than revealing a powerful piece of evidence early and give the DA time to consult with his witnesses and find a way to account for it, he will likely hold back and spring it on the state at trial.
Customer: replied 2 years ago.
Good morning Fran, I'm not sure if you remember but you have helped me before.
It's relating to my former business partner having me falsely arrested by fabricating theft and extortion charges against me.

I'm hopeful that my case above will be dismissed shortly and I plan on filing civil (malicious prosecution, false arrest, libel/slander, intentional infliction of emotional distress, etc.) and maybe criminal (false arrest, perjury or giving false statements authorities since I can prove that their allegations or statements were fabricated). My questions are:

1) What documents (complaint, indictment, dismissal, etc.) do I need to show/prove to civil lawyer or AG/DA (for criminal complaint) so they will look at my case?
2) Am I entitled to all documents that the DA has on my original criminal case against me?
3) When and how do I obtain the DA records
4)Lastly, Can I file RICO charges since there were 2 partners involved trying to intimidate/coerce/discredit me if I go to the AG to have them investigated for fraud? They fabricated my their case against me premptively and to discredit me. What are the requirement for RICO relating to business (non-drug/mafia)
Thank you in advance!
Expert:  Zoey_ JD replied 2 years ago.
Hello,

I am glad to hear that your case is likely to be dismissed as you'd always believed it should have been.

1) What documents (complaint, indictment, dismissal, etc.) do I need to show/prove to civil lawyer or AG/DA (for criminal complaint) so they will look at my case?

I could not tell you what a civil lawyer will need, never having been one. Certainly, however, any documents you have will be helpful.

2) Am I entitled to all documents that the DA has on my original criminal case against me?

Your lawyer should have substantial discovery material by now. You are entitled to copies of all of the paperwork he has, and if you ask him for it, he should give it to you.

3) When and how do I obtain the DA records

The DA has an obligation to turn over discovery material to the defense. This case has been indicted and has been pending long enough so that he should already have most of what would be provided. As indicated earlier, the easiest way to get them is to get your lawyer to give you copies. If your lawyer doesn't have them, he can ask for them on your behalf.

Other than that, your civil lawyer can subpoena them. Don't think for a minute that the DA is going to turn over their file to a defendant, even one who has been completely exonorated. As you will probably be including the police, etc., in any action for wrongful arrest and malicious prosecution, your position is adversarial. But even if that weren't so, you don't get to see your whole file. Much of what's in there is privileged and work product.

4)Lastly, Can I file RICO charges since there were 2 partners involved trying to intimidate/coerce/discredit me if I go to the AG to have them investigated for fraud? They fabricated my their case against me premptively and to discredit me. What are the requirement for RICO relating to business (non-drug/mafia)

You can certainly go to the AG to have these people investigated for Fraud, or file an online complaint. You can't press RICO charges. A prosecutor can. All you can do is to speak to one on the state and/or Federal level and report the criminal activity. From there, it is up to them to see whether they wish to take this on.

RICO is an area with which I've had nothing to do during the course of my practice, as I did not handle much white collar crime. I'm not recommending this law firm, about which I also know absolutely nothing, but it does provide a nice overview of the Federal Rico statute. You can get the idea of what would have to be alleged and proved in either venue.

Good luck!

Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16494
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.
Is it a criminal offense if someone lies to the Grand jury or knowingly file a false criminal complaint in NY State?
Expert:  Zoey_ JD replied 2 years ago.
Hello,

Yes, it is, but the key word is "knowingly." If a DA believes they have probable cause to arrest someone, and if a grand jury finds probable cause to indict, the DA believes his case has merit. Whether that turns out to be true is a question of fact for the jury or judge after all of the evidence comes before them at trial.

Just because a jury acquits does not necessarily mean that the defendant has a suit for malicious prosecution. In general, DA's don't like going after their own witnesses for perjury, as they don't want to chill the rights of others who might come forward to report a crime and cooperate with the prosecution, which would happen if they get the reputation for turning on its witnesses. However, that does not mean that perjury isn't a crime or that they won't support you if you wish to have them prosecuted. You'll have to wait until your matter is dismissed and then try. And, of course, you should scope out a possible civil suit once all the smoke clears. If you are going to add the county to the list of defendants you will also have to file a notice of claim within 90 days of the dismissal to put them on notice that you intend to sue. You have until the statute of limitations expires to file the actual motion, but the notice of claim has to be done fairly quickly or you can be denied the ability to file such a suit later.
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16494
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.
Thanks Fran, I probably won't go after the county since I don't know what they know or didn't. I'll have to give them the benefit of doubt. On the other hand, I can proof that my former partner lied and made up false statements to have me charged with the felonies. Last question:

Does it make sense to file criminal charges before a civil? or do it simultaneously or see if they'll come to a quick settlement before I pursue both?
Expert:  Zoey_ JD replied 2 years ago.
Hi,

Pursuing both simultaneously experts the most pressure, if you are looking to force a settlement. But if you wanted to pursue just one first, the answer is more practical than legal: go with the criminal because the DA does not have to prosecute anything unless he wants to. He has complete discretion in that area and there are crimes he will pass up, particularly if there are also civil remedies. Also, prosecuting is free. :)

Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16494
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and other Criminal Law Specialists are ready to help you
Customer: replied 2 years ago.
Hello Fran,

Is it legal for me to hint at the possibility of me filing for criminal complaint as part of forcing an early settlement? e.g. If I believe that they fraudulently induced me to join their firm by lying about how much they were managing/their Asset under management then can I say that I might have the AG investgate whether they lied to investors as well? This was part of myoriginal contract dispute.

Similarly, if I was acquitted on their false criminal charges and can satify all four criterias for malicious prosecution, can I legally ask for a settlement for malicious prosecution, IIED, Libel,etc or file criminal complaint on malicious prosecution?

How does ABA 92-363 apply to me as an individual?
Expert:  Zoey_ JD replied 2 years ago.
Hi,

Once this case resolves entirely in your favor there would be nothing wrong with your letting the complainants here know that you will be seeking civil counsel to consider remedies on all fronts for the time, expense, and aggravation that they unnecessarily put you through. While this present matter is still pending, any statement even that vague could be regarded as witness tampering (a veiled threat to coerce them into dropping charges).

ABA 92-363 has to do with the ethical obligations of a lawyer. As you are not a lawyer the opinion does not apply to you. Beyond that, however, we've started to move now out of the criminal and into the civil arena. As I don't practice civil law it would be advisable for you to scope out all of the ramifications of that as a new question posted into the Legal category and get your question addressed by an expert who has negotiated civil settlements and whose insights would be more valuable.

Good luck!
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16494
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Zoey_ JD and other Criminal Law Specialists are ready to help you

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