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My son was convicted by jury trial of two counts of burglary…

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My son was convicted by...
My son was convicted by jury trial of two counts of burglary in the second degree and one count of criminal mischief in the fourth degree in December 2010. He is currently serving a 3 1/2 year sentence at Ogdensburg Correctional Facility. My wife and I appealed his case and the Appellate Division heard an argument for my son's case on september 13, 2012. We are expecting a decision (hopefully favorable) within the next two weeks. We have the following question: If the Appellate court modifies my son's original sentence so that the two counts of burglary two are dismissed, how soon would my son be released from Ogdenburg correctional facility since he would have already have served the maximun time associated with the crime of criminal mischief in the fourth degree?
Thank you
Submitted: 5 years ago.Category: Criminal Law
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Answered in 9 minutes by:
11/7/2012
Criminal Lawyer: Lucy, Esq., Lawyer replied 5 years ago
Lucy, Esq.
Lucy, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 32,264
Experience: Criminal Justice Degree, JD with Criminal Law Concentration. Worked for the DA and U.S. Attorney.
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Hi,

My name is Lucy and I'd be happy to answer your questions today. I'm sorry to hear that your son was convicted.

If he is successful on appeal, and the convictions are dismissed, he should be released immediately if he has served more than the maximum time for that offense. It really depends on what the Appellate Court does. If they vacate the conviction, but leave the charges pending, then he'd have to go back to court, which means filing a motion and asking for release pending the final hearing. If the court vacates the conviction entirely, he should be released right away (or as soon as he gets processed, which could take a couple of days). If they dismiss the burglary charges, but leave the criminal mischief charges, he may have to file a motion to get before the judge and request immediate release. That depends on how busy the court system is, but it shouldn't be too long.

Please rate my service positively before signing out, as this is the only way that I get credit for the time I spend helping you. I hope that you are 100% satisfied - otherwise, please reply so we can continue the conversation. Good luck.
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Customer reply replied 5 years ago


Hi Lucy,


Thanks for your response. I have a follow-up question. If the Appellate Court determines that all convictions are vacated and a new trial is mandated, will my son be released immediately from the upstate facility or what would be the next steps in this process?


Thanks

Criminal Lawyer: Lucy, Esq., Lawyer replied 5 years ago
If all of the convictions are vacated and he's going to get a new trial, then he would have to file a Motion requesting pre-trial release. It's the same thing that happens in the very beginning. If he's only being re-tried on criminal mischief, it would almost certainly be allowed. Otherwise, it would depend on the basis for vacating the convictions, and the facts of the case, so I don't have enough information to know if the judge would let him out pending retrial.
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