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P. Simmons
P. Simmons, Lawyer
Category: Criminal Law
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Experience:  16 yrs. of experience including criminal law.
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I was charged with Felony grand larceny in a small town in

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I was charged with Felony grand larceny in a small town in New York 20ish years ago. The case was due to a check for $2,700.00 I wrote to a vendor and asked them to hold for a period of time which they agreed to do. Upon the date to deposit I called them and asked them to hold it for longer. They did not hold and deposited the check then it was returned unpaid. I made payments for a year but when the holidays came things got real tight and I missed the payments. They then went to the small town court and charged me with grand larceny and writing a bad check because it was over 1k. I showed my public defender my bank statement on the day the check was written there were sufficient funds to cover it. In addition there was a civil agreement to satisfy. In addition this was clearly a civil matter but the court decided to use criminal court to collect. They offered me a deal and said no jail, no probation if I would make a payment arrangement. I told them no problem because I planned to pay it anyway. At court I pled to petty larceny (surprised me) and then they sentenced me to 3 years probation. They also told me in court that I did not have the right to appeal. Naturally, looking back I would have done well to go to trial and clearly would have won. The facts of the case did not meet the test for conviction. But I was young, inexperienced, and taken by surprise in court by a conspiracy of small town judge, prosecutor and public defender. I served my 80 hours of community service and then I moved my family out of New York State. I was arrested on a warrant many years ago and NY did not extradite. I am in Washington State. We left NY 17 years ago ish. I still likely owe some of the money but the community service was completed. When I was arrested they said it was a felony warrant from NY. This was at least 10 years ago. I was released no complaint. Am I to understand correctly that because I absconded that the original charge is reinstated? Am I a felony fugitive? Whenever I do an online warrant search nothing comes up. When I call the city of buffalo they say they can't tell me by phone. My questions are

1.Will this keep me from getting a passport?
2. Is there a way to deal with this from Washington with a NY lawyer?
3. Is it possible to make a deal to pay the balance of the restitution and close it?
4. Is it possible to get this expunged? I have been in zero trouble, I am a family man with 4 kids and a business owner. The charge was bogus in the first place and an irresponsible prosecution.. (in my opinion)
5. Is absconding a second charge? misdemeanor? felony?

As a practical matter, life is ok but I would like to be able to live knowing that I am not a fugitive from justice. The problem is I don't trust justice will be done if I go face it because it was such a railroad in the first place. I also have a family to care for.

Have you had any success with these types of situations and what is the likely outcome if we face it head on?
Thanks for the chance to assist on this matter. I am an attorney with over 12 years experience in criminal law.

Good questions.

If you entered into a plea agreement and did not comply with the terms of the agreement, then the court can impose the original possible sentence, or any lesser sentence.

So to answer your question

"are you a felony fugitive"

The answer is likely yes. What you describe, if you pled to a felony charge but did not complete the sentence agreements, the court can void the plea agreement and can sentence based on the original conviction.

This assumes that you pled guilty to the felony charge, and that you did not comply with the requirements of your plea deal.

Now...practically speaking, it is unlikely you would do significant jail time at this point...not after all these years, assuming that was your first conviction and you do not have any subsequent felony convictions. But technically, since you did not comply with the plea agreement, you can be sentenced to the maximum punishment authorized for the charge. In reality what would likely happen if you turned yourself in would be they would force you to complete the sentence terms required in the original agreement and perhaps levy an additional fine. They may also impose a period of probation on you going forward



To answer your questions


1.Will this keep me from getting a passport?

It could. IF you have an active felony warrant, that would be grounds for the US Passport agency to refuse to issue a passport. They theory is that they do not want to issue a passport to a know fugitive.


2. Is there a way to deal with this from Washington with a NY lawyer?

Perhaps. Though at some point you will likely need to travel to NY to resolve this. It may be the court will negotiate with the lawyer in your absence. But in my experience they want you present. I have not seen a court lift a warrant until the accused is present...so you may be better served to travel there yourself and turn yourself in..it may be you can save the lawyers fees.

So long as you are absent the warrant will remain active. The court will want you present before they lift the warrant.

3. Is it possible to make a deal to pay the balance of the restitution and close it?

Likely, yes...if you turn yourself in. Understand that until the warrant is lifted the court will not negotiate with you. But once you address the warrant, the court will be happy to work with you to resolve the remaining requirements from your plea agreement.

4. Is it possible to get this expunged? I have been in zero trouble, I am a family man with 4 kids and a business owner. The charge was bogus in the first place and an irresponsible prosecution.. (in my opinion)

You are a ways away from that. You have an active felony warrant...you have to resolve that first. The other issue you have is that under NY law they will not expunge a conviction. SO you would need to apply for and be granted a pardon from the Governor before you can qualify to have the charges expunged.


5. Is absconding a second charge? misdemeanor? felony?

NYPC (penal code) has several Absconding charges. They range from misdemeanor to felony depending on the circumstances. They apply when a person is released from confinement and after release does not comply with the terms of their release. This may apply to you...it really depends on the nature of your plea agreement. To charge you with Absconding they have to prove you were released and required to return but did not. That does not really fit what you describe...that is if you never were confined, they would have a tough time proving Absconding. But they can go back and sentence you for the charge to which you pled to but did not fulfill the requirements of the plea agreement.



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