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LawTalk, Lawyer
Category: Criminal Law
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Experience:  30 years legal experience
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I was told that because I did not want to plea guilty to the

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I was told that because I did not want to plea guilty to the misdemeanor the DA has now raised the penalty to a Felony when I was originally arraigned as a misdemeanor. He is not raising it based on the crime but to scare me into pleading guilty to the misdemeanor. how is that legal

Good afternoon again Maryann,

I'm sorry to hear that you are now being threatened based on your refusing to agree to a lesser charge.

As truly unfair as it does seem, it is quite common for a prosecutor to offer a plea deal of a misdemeanor---of a lesser included offense--in exchange for resolving the case and not having to go to trial---and if the plea agreement is not accepted, then to charge the alleged crime as a felony, as opposed to just a misdemeanor. The intent is to get the person to accept a plea deal, and unfair as it seems, it is perfectly legal.

The fact that you may be arraigned for a misdemeanor does not prevent the DA from adding a felony count to the complaint if it later appears that they can prove the felony, and this is apparently what they have done.

If you feel that you are not guilty of any of the charges filed, and your defense attorney agrees with you then you may well want your day in court. However, the prospect of a felony conviction, with all the limitations that it may impose on you throughout your life in terms of getting rental housing, and jobs---many people do opt to accept a misdemeanor rather than test their luck in a trial when it is also a possibility that you could be found guilty of a felony.

You may reply back to me again if you have additional questions, and I will continue to assist you.

I wish you the best in your future,


Customer: replied 3 years ago.

I was charged with the same exact crime 2 years ago. I violated the order of protection. in that case I had an excellent private attorney. the case never got elevated to a felony and he got it reduced to a disorderly conduct ticket although I did violate the order of protection in that case as well. in my new case I have a court appointed attorney. is the difference in the attorneys. is it worth it to hire the private attorney since he did so well with my previous case

Hi Maryann,

Honestly, I don't think the difference is in the attorneys, as much as it is the fact that this is not your first such violation, and it is highly unlikely that the DA is going to let you off on something like a simple disorderly charge this time. Deals like that are generally reserved for first offenders.

You can certainly hire a private attorney, but I would be surprised if they could do any better than the misdemeanor offer you were given. I'm sorry.

You may reply back to me again if you have additional questions, and I will continue to assist you.

I wish you the best in your future,

Customer: replied 3 years ago.

that makes sense alhough it wasn't my first offense in that case either. ive been told that the DA in Westchester in tougher than the DA in Nassau County long island although I find that hard to believe because the crime rate it higher in Nassau. Also I made the phone calls to my ex-husbands answering machine while in a psych ward. im bipolar and was off my meds. I didn't know I was committing a crime. I was also told if I move to Westchester so im eligible for mental health court the DA will charge me with a Felony and a misdemeanor. why would I be penalized by being admitted into mental health court by being charged twice

Hi Maryann,

Of course DA's in different counties, just like courts in different states, handle things differently. Some DA's are laid back, and other's trying to make a name for themselves, are real hard-cases. Again, it is the luck of the draw.

I seem to recall that some time ago I discussed with you the defense possibility you have based on the fact that you were in a hospital when you made those calls---and the defense possibilities still exist. But if you are looking at a possible felony conviction, versus a misdemeanor plea, in mind the direction to take is pretty clear. You admit to having made the call(s)---the only thing between you and the conviction is the hospital defense---and that defense is not a sure thing. If it were, the DA probably would have made the offer they did, Maryann.


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Thank you once again for your positive rating of my service, Maryann . It is always my pleasure to assist you and I hope than you will continue to ask for me on JustAnswer as future needs arise.

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Thanks again.


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