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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27076
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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I was charged with a felony and then it was dropped to a

Customer Question

I was charged with a felony and then it was dropped to a misdemeanor then upon a conditional discharge I was given a disposition. Can I still be indicted on this case?
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Legal-Kal replied 1 year ago.

Hello.

Unfortunately I am not over familiar with New York law, so I will defer toother experts to better assist you.

Expert:  Zoey_ JD replied 1 year ago.

Hello,

My name is ***** ***** I am a New York criminal defense lawyer. If your case was reduced to a misdemeanor for purposes of a dispositon you could not be indicted thereafter for the same charges and facts. When you pled guilty and received the conditional discharge your lawyer likely put on the record that you pled guilty in full satisfaction of the docket before the court.

You could be indicted under Federal law for the same charges, or be indicted in a different jurisdiction for the same charges, assuming that this were possible under the fact pattern of your case, but not in the jurisdiction where the DA reduced the felony to a misdemeanor and disposed of it.

Customer: replied 1 year ago.
Basically my ex says that she has to sign and send in the indictment papers but I agreed to a confession of judgement so I'm confused as to how I can still be charged if I already entered an agreement.
Customer: replied 1 year ago.
Along with completing the conditions under which I was given to obtain a disposition.
Expert:  Zoey_ JD replied 1 year ago.

Did you already plead guilty to the misdemeanor and were you sentenced already, which is what I thought the fact pattern was?

Customer: replied 1 year ago.
I did and I was already sentenced.
Customer: replied 1 year ago.
I completed all the terms and payed the fine.
Expert:  Zoey_ JD replied 1 year ago.

Now you've got me confused, because I don't understand what papers she has to sign. She doesn't indict. A Grand Jury would be the one to do that.

Customer: replied 1 year ago.
She called me and told me that I'm presuming to have me worried. So that's why I sought professional advice. I was charged with identity theft, but I agreed to the charges and that we had made a previous agreement about and the confession of judgement in which I would pay her back. Now she is saying their is another set of papers to indict me and she has to press charges now
Expert:  Zoey_ JD replied 1 year ago.

So if I've got this right, you have two things going on. She had you arrested for identity theft, you were charged with a felony. The DA reduced the charges and you pled out to a misdemeanor and a conditional discharge.

Was the DA's office privy to the confession of judgment, or was this just a deal worked out on the side between you and your ex?

Regardless of the answer, I would argue that a second prosecution on the same charge and facts would be barred by double jeopardy.

Customer: replied 1 year ago.
No I agreed to a confession of judgement with the DA
Customer: replied 1 year ago.
The confession of judgement was the reason behind me getting the charges dropped to a misdemeanor then upon completing the terms it was reduced to a violation
Expert:  Zoey_ JD replied 1 year ago.

I think you would have a double jeopardy argument and that a subsequent prosecution should be dismissed. However, if you knowingly and voluntarily waived your right to appeal as part of the plea to the reduced charges, there is case law in New York saying that you can be thereafter charged with the more serious offense. See here. Your facts are distinguishable from the ones in the case.

Your argument, however, is a double jeopardy argument. And you need to contact your lawyer if the DA is going to try to indict so that he can do some deeper research to try to get this matter tossed.

Customer: replied 1 year ago.
Okay. She said that the first set was the bank acting in her name
Expert:  Zoey_ JD replied 1 year ago.

This doesn't change my answer. It's still a double-jeopardy situation. As I have said, there's case law against you, but the confession of judgment to which the DA was a party indicates that the same principles of fairness required by the rules against double jeopardy should apply here. Or so I'd argue.

Customer: replied 1 year ago.
I can still be charged correct?
Expert:  Zoey_ JD replied 1 year ago.

It looks like you can be charged if you waived your right to appeal as part of the plea agreement. Otherwise, double jeopardy would prevent the prosecution. Still, principles of fundamental fairness suggest strongly that under a situation like this your case ought to be dismissed, and there are facts that distinguish it from the Muniz case I linked you to. Looks to me as if your lawyer will have a research assignment on his hands.

Customer: replied 1 year ago.
Okay. So my lawyer should be able to argue double jeopardy?
Expert:  Zoey_ JD replied 1 year ago.

That's the issue -- whether it would violate double jeopardy since you've already been convicted punished for this crime. Would you have taken that plea if you knew you could be recharged and indicted for the same offense by the same DA's office and punished again? This is the kind of situation that the double jeopardy bar was made to prevent.

Customer: replied 1 year ago.
Also don't they have a year from the date I was first arrested to do this
Expert:  Zoey_ JD replied 1 year ago.

Are you talking about the statute of limitations? No. They would have one year to file a misdmeanor. But they'd have 3 years to file a felony.

Customer: replied 1 year ago.
Ok.
Customer: replied 1 year ago.
what was the point of a guilty plea if I can be recharged
Expert:  Zoey_ JD replied 1 year ago.

That's my precise point! That's what double jeopardy is all about. The DA seems to feel it doesn't apply. Your lawyer will have to argue otherwise and try to show that they are wrong.

Customer: replied 1 year ago.
My question is does she have to sign any documentation to indict me? That is what sounds fishy
Expert:  Zoey_ JD replied 1 year ago.

She would have to sign a corroborating affidavit if the police filed the charges. But that has nothing to do with indictment. It's just a piece of paper attesting to the fact that she told the police the truth. But that just converts the criminal court complaint into an information.

Customer: replied 1 year ago.
Her precise words was that it was an indictment and it stated what I did and she has to mail it back in, in order to press charges against me
Expert:  Zoey_ JD replied 1 year ago.

She may be talking about a waiver of immunity. The District Attorney's Office makes grand jury witnesses sign paperwork showing that they understand that when they testify before the grand jury they are required to answer all questions directed to them and that that they have no immunity, meaning, of course, that what they say could be used against them.

I know when my clients or their witnesses wish to testify before the grand jury, they are made to sign one. But that does not sound like what you're describing.

Expert:  Zoey_ JD replied 1 year ago.

It sounds more like what I was talking about before. She has to sign a first party complaint or a corroborating affidavit in order for the case to first proceed. See link below.

http://codes.lp.findlaw.com/nycode/CPL/TWO/H/100/100.15

Customer: replied 1 year ago.
Okay. I'm just trying to figure out if she is running games on me because before I left the court they told me after everything was completed I was done with the case and had nothing to worry about.
Expert:  Zoey_ JD replied 1 year ago.

She could be playing mind games.

She'd sign a felony complaint or a corroborating affidavit to initiate the court action. Later on, she might also have to sign a waiver of immunity right before she testified before a grand jury. But complainants do not sign the indictment.

Customer: replied 1 year ago.
I was charged with penal law 155.25 and 240.20 and had 5 days community service and pay a fine of 260 after completing it and hen the charges was dropped to a misdemeanor
Customer: replied 1 year ago.
Well dropped to a violation
Expert:  Zoey_ JD replied 1 year ago.

No. 155.25 is petit larceny, which is the misdemeanor. You were probably charged with 155.30 or 155.35, depending upon the amount in question that was stolen, either of which is Grand Larceny. It was reduced then to the misdemeanor and disposed with a dis con, which is a violation.

Customer: replied 1 year ago.
The question is would she still be able to charge me or should the case be over with
Customer: replied 1 year ago.
That's what the paper told me
Expert:  Zoey_ JD replied 1 year ago.

If you were arraigned on a 155.25, that's only a misdemeanor. And your charge was reduced to a disorderly conduct, to which you pled guilty. Disorderly conduct, 240.20, is only a violation and not a crime.

If they are now looking to arraign you on a felony for the first time, then it would depend on whether the facts and the evidence is different. Because petty larceny is theft of money or property worth less than $1,000. So they've come up with more money somewhere.

Customer: replied 1 year ago.
It started as a felony
Customer: replied 1 year ago.
I was originally arraigned on felony charges and then it was dropped
Expert:  Zoey_ JD replied 1 year ago.

If it started as a felony, I have already answered this question. There's a double jeopardy issue.

Customer: replied 1 year ago.
Ok
Expert:  Zoey_ JD replied 1 year ago.

Does that mean the DA can't try to prove double jeopardy doesn't apply? They most certainly can try.

Customer: replied 1 year ago.
I'm just confused as to why they would when I already entered an agreement
Expert:  Zoey_ JD replied 1 year ago.

I don't know. I'd have to see the old criminal complaint and then the new one when it was filed to get a sense of what's going on in their mind.

Customer: replied 1 year ago.
She never said she filed a new complaint she said their was 2 separate charges but then I called my public defender and he stated that he knew nothing about it
Expert:  Zoey_ JD replied 1 year ago.

I guess he'll have to see the complaint too. I can't tell for sure whether double jeopardy applies now or not because I don't know why there would be two separate charges and you led me to believe that the same matter was going to be prosecuted twice. Now I'm not sure that it is the same. If it is, you have a double jeopardy argument to get the case dismissed. If these are different facts you don't.

Best I can do with what you presently know.

Customer: replied 1 year ago.
Okay
Expert:  Zoey_ JD replied 1 year ago.

It all sounds very irregular unless there are new facts. I wish you luck with it.

Customer: replied 1 year ago.
Thank you but she never said anything about new facts she said the papers came back and she just wanted me to know.
Customer: replied 1 year ago.
I feel like she is really playing mind games but I'm not to sure
Expert:  Zoey_ JD replied 1 year ago.

I have literally handled thousands of criminal cases over the years and never seen this done, except when, for example, another theft offense came to light. So she may just be yanking your chain. You will know soon enough. YOur lawyer should be able to find out.

Customer: replied 1 year ago.
She said the only way it would be able to come off her credit report is if she was to sign the paperwork and send it in. The first case was the bank acting in her name.
Expert:  Zoey_ JD replied 1 year ago.

So when you cut your deal, you didn't have to pay back the bank?

Customer: replied 1 year ago.
Not to my knowledge. They should it would come over to my credit report
Customer: replied 1 year ago.
They said
Expert:  Zoey_ JD replied 1 year ago.

That's a civil issue and she should be able to remove that from her credit report without having to prosecute you. But that's really not my area of expertise. That's a consumer protection law issue.

Customer: replied 1 year ago.
Is she the one that pressed charges?
Expert:  Zoey_ JD replied 1 year ago.

Sorry for the delay. I have been traveling since last I replied and am now in London on vacation.

I would assume she's pressing charges this time, but I'd have to see the specific papers she signed to know for sure.

Customer: replied 1 year ago.
But didn't me initially getting arrested mean she was pressing charges?
Expert:  Zoey_ JD replied 1 year ago.

You were the one that said the bank pressed the charges, so no, it didn't mean that she did.

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