Criminal Law

Criminal Law Questions? Ask a Criminal Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Criminal Law
This answer was rated:

A while ago I took a plea deal to one count of aggravated harassment,

a misdemeanor in NY state...
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!
Show More
Show Less
Ask Your Own Criminal Law Question
Answered in 24 minutes by:
9/6/2013
Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,046
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Verified

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.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,046
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
Verified
Dwayne B. and 87 other Criminal Law Specialists are ready to help you
Ask your own question now
Ask Dwayne B. Your Own Question
Dwayne B.
Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 34,046
34,046 Satisfied Customers
Experience: Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.

Dwayne B. is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Your Expert advise has provided insight on a difficult situation. Thank you so much for the prompt response. I will definitely recommend your website to my friends.

NormaPensacola, FL

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

< Previous | Next >

Meet the Experts:

Ely

Ely

Counselor at Law

3,175 satisfied customers

Private practice with focus on family, criminal, PI, consumer protection, and business consultation.

P. Simmons

P. Simmons

Lawyer

2,014 satisfied customers

16 yrs. of experience including criminal law.

LawTalk

LawTalk

Lawyer

1,815 satisfied customers

30 years legal experience

RobertJDFL

RobertJDFL

Lawyer

1,812 satisfied customers

Experienced in multiple areas of the law.

Nate

Nate

Lawyer

1,736 satisfied customers

Over 10 years of criminal defense practice.

Marsha411JD

Marsha411JD

Lawyer

1,623 satisfied customers

Licensed attorney with 29 yrs. exp. in criminal law

AttorneyTom

AttorneyTom

Lawyer

1,242 satisfied customers

Attorney

< Previous | Next >

Related Criminal Law Questions
It began with a misdemeanor d.u.i. in Nevada 2011, no
Hello it began with a misdemeanor d.u.i. in Nevada 2011, no accident,non violent, non drug. Because of policy change in 2010 my charge was changed to a felony in 2012.I am dual citizen with now a curr… read more
Nisha Jones, Esq.
Nisha Jones, Esq.
Juris Doctorate
1,251 satisfied customers
I have a misdemeanor warrant in minnesota will i be able to
i have a misdemeanor warrant in minnesota will i be able to purchase a handgun where i live in arizona … read more
Nisha Jones, Esq.
Nisha Jones, Esq.
Juris Doctorate
1,251 satisfied customers
I received an infraction (not misdemeanor) for literring on
I received an infraction (not misdemeanor) for literring on the beach, and a fire on the beach (in Malibu). My court date was set for thursday (this week). I just learned of a serious test and I canno… read more
JB-Umphrey
JB-Umphrey
Attorney & Counselor
Juris Doctor
606 satisfied customers
I am in court for criminal mistief in the state of indiana
i am in court for criminal mistief in the state of indiana marion county. I am illeged to break a windo . I am being charged with a felony because the total cost is said to be over 2500 dollars. I wan… read more
MShore Law
MShore Law
Doctoral Degree
1,233 satisfied customers
Minor misdemeanor citation 4.1. knowingly possess marijuana.
minor misdemeanor citation 4.1. knowingly possess marijuana. what is mininum punishment? is it possible to just pay a fine without losing my license or undergoing counsling? please help, Norwalk OH… read more
N Cal Atty
N Cal Atty
Doctoral Degree
59 satisfied customers
I was charged with a misdemeanor regarding an assault I just
I was charged with a misdemeanor regarding an assault I just had back surgery with metal implants in the person would not let me go I ended up having to defend myself so he would not only down a set o… read more
Michael J, Esq.
Michael J, Esq.
Solo Practicioner
Doctoral Degree
3 satisfied customers
Would a misdemeanor from 1991 in California show in my
Hi! Would a misdemeanor from 1991 in California show in my livescan report? … read more
Zoey, JD
Zoey, JD
Doctoral Degree
175 satisfied customers
Can I be cited for criminal Trespass from the tennis courts
Can I be cited for criminal Trespass from the tennis courts on a school grounds entirely at the discretion of the school officials… read more
MShore Law
MShore Law
Doctoral Degree
1,233 satisfied customers
I have a question about procedure in criminal court in
I have a question about procedure in criminal court in Texas; specifically if there is any way to request a pretrial hearing prior to indicment of a felony … read more
Ray
Ray
Lawyer
Doctoral Degree
30,179 satisfied customers
Is it not uncommon for criminal court judges or their
Is it not uncommon for criminal court judges or their court's administration (e.g. bailiffs) to manipulate the only clock on the wall in the courtroom (e.g. set it purposely ahead of or behind the act… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
I had a criminal court hearing and was sentenced, but was
I had a criminal court hearing and was sentenced, but was never sworn in can this be thrown out… read more
Nisha Jones, Esq.
Nisha Jones, Esq.
Juris Doctorate
1,251 satisfied customers
Recently charged with multiple misdemeanor charges in a
recently charged with multiple misdemeanor charges in a different state then i live. what can i do to avoid appearing in court and can i set up payment plans for the fines … read more
Roger
Roger
Litigation Attorney
Doctoral Degree
26,806 satisfied customers
I have a court da on October 30 for a misdemeanor without a
I have a court da on October 30 for a misdemeanor without a bail and they didn't took my passport, can I leave the country? … read more
Nisha Jones, Esq.
Nisha Jones, Esq.
Juris Doctorate
1,251 satisfied customers
My son has to appear in court on a misdemeanor. doesn't have
hi, my son has to appear in court on a misdemeanor. doesn't have any record and I guess did not move when the police asked him to. we bailed him and he has to appear in court 9/26. Should he have a la… read more
Zoey, JD
Zoey, JD
Doctoral Degree
175 satisfied customers
During my Bench Trial in Federal Court on a misdemeanor
During my Bench Trial in Federal Court on a misdemeanor charge of Simple Assault, I testified in my own defense. I would have made a more aggressive defense, but I thought certain points were best lef… read more
Zoey, JD
Zoey, JD
Doctoral Degree
175 satisfied customers
I'm in court today at 1330 for four counts of misdemeanor
I'm in court today at 1330 for four counts of misdemeanor credit card fraud They want me to plea guilty to 2 of them and do 3 yrs formal probation I'm an RN for 15 yr first time offense … read more
LawTalk
LawTalk
Lawyer
Juris Doctor
1,815 satisfied customers
In Texas, in a Class Misdemeanor criminal case where the
In Texas , in a Class B Misdemeanor criminal case where the defendant is representing themselves.Is it correct that the defendant can request from the DA any offense reports, any designated documents,… read more
lucy7368
lucy7368
Juris Doctor
763 satisfied customers
Originally a Phoenix Municipal Criminal misdemeanor, I was
Originally a Phoenix Municipal Criminal misdemeanor, I was convicted at trial. Sent case to Superior Court of Arizona. Appeal was affirmed. Now I would like to raise an Ineffective Assistance of Couns… read more
Zoey, JD
Zoey, JD
Doctoral Degree
175 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x