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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26177
Experience:  Began practicing law in 1992
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A while ago I took a plea deal to one count of aggravated harassment,

Customer Question

A while ago I took a plea deal to one count of aggravated harassment, a misdemeanor in NY state. Throughout the case I had 2 lawyers who represented me on and off, one would come to court when the other was unavailable. The case was in court for a total of five months but was supposedly investigated for a total of 11 months. The evidence against me was from an account I had with a private company. Two months into the court dates one of my lawyers realized that there was no search warrant or subpoena issued for my records in my case. She then informed my other lawyer about it and two weeks before I took the plea deal of one count of aggravated harassment (my lawyer told me to do so) my lawyer said to the assistant district attorney in the court room in front of the judge where everything was voice recorded, "Was there a search warrant or subpoena in this case?" The ADA flipped through his file with all of the paperwork for my case and looked at my lawyer with a smile and said, "No, would you like to make an issue of it?" So immediately my lawyer starts asking for a couple of violations instead of the misdemeanor and the ADA refuses and says, "No, we didn't need a search warrant or subpoena for his records, etc." The judge said nothing he just gave us another two weeks to work it out and come back to court. I should add that although a smart guy and I'm sure a fine attorney, my lawyer wasn't very attentive throughout my case, I normally had to fill him in about things, remind him about certain details and do a good portion of the research on the laws myself. So anyway, we go back to court and my lawyer tells me to take the deal so I take it. After I take the deal the ADA says I need to pay all of these different fines, which I did, everyone of them and then says that I need to pay a "DNA" fee. I was confused so outside I asked my lawyer what that meant and he said that they want to put my DNA in NY's criminal DNA database, I wasn't very happy about that. I looked up the law and found several news articles, and the actual law about the DNA situation in NY. It turned out that I didn't have to give my DNA after all like my lawyer said I did, there was no legal requirement for me to hand over my DNA so I told my lawyer and he sent a letter to the judge, my "DNA" fee that I paid was then mailed back to me. I was upset because I thought that a lawyer with 30+ years experience who went to a great law school would be up to date with the legal situation in regards XXXXX XXXXX if I didn't check up on the law then my DNA would be in that database right now. So a year goes by and I start researching search warrant and subpoena laws in NY state, I told the story to a few family friends who are attorneys and they all told me I got screwed because a search warrant or subpoena is indeed needed for my personal records.

I accepted that plea deal a little over one year ago. My question is since a subpoena was needed for my records and the district attorneys office went on record saying they didn't have one, was I wrongfully convicted? Should the misdemeanor on my record be quashed? Would this be an example of prosecutorial misconduct? Could I get the conviction set aside since they didn't have the evidence they needed? Please help!
Submitted: 7 months ago.
Category: Legal
Expert:  Dwayne B. replied 7 months ago.

JD 1992 :

Hello, and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today.

JD 1992 :

From where were the record obtained?

JD 1992 :

records

Customer:

The case was about prank phone calls that came from a Spoofcard account in my name

Customer:

So the records were obtained from the company that owns Spoofcard, I believe their name is TelTech.

JD 1992 :

Let me answer those questions one at a time and then you can ask any follow ups.

Customer:

Okay thank you

JD 1992 :

was I wrongfully convicted? No, not necessarily. A subpoena is not required to obtain records if the company voluntarily agrees to turn them over. In addition, issues like this have to be raised before a plea bargain is completed or they are waived.

JD 1992 :

Should the misdemeanor on my record be quashed? Same answer as above.

JD 1992 :

Would this be an example of prosecutorial misconduct? Not on its face. If they did something illegal to get the records, such as threatening to throw the owners of the company in jail if they didn't give them the records, then yes it would be misconduct. However, if they just asked for the records and the company turned them over then it wouldn't be misconduct.

JD 1992 :

Could I get the conviction set aside since they didn't have the evidence they needed?

JD 1992 :

No, not since you plead to the charge.

JD 1992 :

Okay, do you have follow up questions?

Customer:

Yes, what if I reopened the case? Would I have a better chance at challenging them on the subpoena issue?

Customer:

Meaning if I removed my plea

JD 1992 :

There is only one way to reopen your case at this point and that would be to file for a Writ of Habeas Corpus.

Customer:

What exactly does that mean?

JD 1992 :

When did this plea take place? I thought it said last year but I can't find that now in your facts.

Customer:

Yes, the plea took place July 31, 2012

JD 1992 :

You only have about thirty days to appeal or challenge a judgment. After that the court loses jurisdiction to do anything.

Customer:

So there's no way to reopen this case?

JD 1992 :

The only way to challenge it at this point is a procedure called a Writ of Habeas Corpus.

Customer:

What is that exactly?

JD 1992 :

It is very complicated, there are very few lawyers that do these, and the chances of success are pretty low.

Customer:

Is it handled at the County level or the State level?

JD 1992 :

You apply for it through the same court as originally handled the case and it then goes up through the appellate system from there.

Customer:

Okay, now when I sat down with my lawyer a few months ago he went through my file, saw there was no subpoena and said that the evidence would have to be suppressed. I then asked if it was too late to reopen the case or appeal it, etc. He laughed and said no, you can always reopen these things

Customer:

So is he clueless? Or just optimistic?

JD 1992 :

Optimistic. You can file for a Writ, but you're going to spend a lot of money and you aren't likely to win.

Customer:

Because he never mentioned the Writ of Habeas Corpus, he just said that I could withdraw my plea and try again for a better deal

Customer:

Okay

Customer:

Why is it so difficult to win a case like that?

JD 1992 :

The ONLY way it is an exception is if the prosecutor did something unethical to get the materials like threaten them then you could have a chance.

Customer:

Oh okay, I see

JD 1992 :

The trial court has lost jurisdiction at this point for anything else.

Customer:

So as far as the fourth amendment goes and unwarranted searches and seizures...If the government somehow gets records of mine from a company without producing a warrant they can use them against me in court and that's considered legal?

JD 1992 :

Yes and especially if they aren't objected to.

Customer:

What if they were objected too?

Customer:

Isn't there a statute or something that says that you can reopen your case with a new lawyer if you feel that your lawyer was negligent?

JD 1992 :

There could have been an appeal at that time

Customer:

*to

JD 1992 :

Just through a Writ of Habeas Corpus.

JD 1992 :

The issue is timing. If you thought it was an issue the law says you should have done it back then.

Customer:

Okay, thank you. One more question, when a conviction is set aside is it usually done at the County level or the State level?

JD 1992 :

It is usually done on appeal.

Customer:

Okay

JD 1992 :

I don't want to discourage you but I've seen lots of people spend lots of money with very little chance of winning.

Customer:

No, I understand and I appreciate your honesty. But is this a general national law as far as appeals go? Or is the appeals process different throughout every jurisdiction in the country

Customer:

?

JD 1992 :

It is almost identical everywhere, even Louisiana.

Customer:

Okay, thank you for your help

Customer:

I really do appreciate it

JD 1992 :

There are very few differences in the states now. I handled criminal cases as a trial specialist in many of the states and there are only minor difference.

JD 1992 :

You're very welcome.

JD 1992 :

Before we go, do you know how they got the records?

JD 1992 :

Are you still there?

Customer:

No, I have no idea how they got the records.

JD 1992 :

That is going to be the issue here. The company could release the records without a subpoena if they chose to do so (which they usually won't).

JD 1992 :

If they voluntarily released them then it is a losing point.

JD 1992 :

Best wishes to you. Please don't forget to leave a Positive Rating (of course I'd suggest Excellent) by clicking on a rating or a Smiley Face below so I get credit for my work. The experts only get credit from the website when you issue a Positive Rating.

Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26177
Experience: Began practicing law in 1992
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