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Legal-Kal, Criminal Defense Lawyer
Category: Criminal Law
Satisfied Customers: 584
Experience:  Attorney at Law Offices of Khaled Issa
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I was arrested in NYC 165.15.03. I felt it was overdone to

Customer Question

I was arrested in NYC for PL 165.15.03. I felt it was overdone to give me an arrest record and possible criminal charge when I didn't intend to use my mother's discounted metro card but accidentally did in a crowded station because I refilled the card for her and it was in my wallet over my own card. Instead of giving me a summon, the office insisted to arrest me saying he can't be sure i didn't still the card. I would like to know if there is any chance to 1)dismiss the case 2)erase the arrest record? What should I expect at my DAT court appearance? Thanks.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Legal-Kal replied 1 year ago.


It appears there are two issues you are concerned about First, is the actual case. Second, whether you can erase (otherwise know as expunge or seal) your arrest.

As to the first issue, you were charged with theft of services. This is a common charge in large urban areas with public transportation. I do have a question. If your mother's card was filled with adequate funds, theft of services would be the wrong charge. My assumption is that you used a filled card to actually enter past the last point of purchase area. Generally, when there is a theft of services charge in a situation like this, it is the usual "jumped over the turnstyles" kind of situation.

Perhaps you can give me a little more information about what occurred and I can better assist you on that end.

Customer: replied 1 year ago.
you are right about my confusion. Everything aside, I entered the subway paying a fare. NYPD officer who stopped me first told me he was going to give me a summon. But after talking to his colleague he told me it is a mandatory 12 or the code they used for arrest. I know was not supposed to use a discounted card, but I didn't steal service. I paid.
Expert:  Legal-Kal replied 1 year ago.

I understand. They are claiming that you used an improper card to enter the subway. This actually does qualify as Theft of Services. However, they have to prove an essential element of the offense. They have to show that you attempted to deceive your way into the subway. The important thing here is that the State has the burden of proof to show that you knew of the deception. Unless you gave statements to police to the effect of "Yes, I knew it was my mother's, I just wanted to save money" then it would be difficult for the State to bear the burden here. If this was an accident, the law will not hold you criminally responsible for this offense at least.

However, regardless of the first issue, you may qualify for an expungment or sealing. With minor, non-violent "offenses" like these, and a clean criminal background such as you have described, an attorney may be able to negotiate any one of many outcomes wherein you can qualify to remove the arrest and ticket from your background.

Because expungment and sealing laws are so state intensive (i.e., every state can be drastically different when it comes to qualifying for an expungment or sealing) it would be very prudent to discuss this portion of your questions with a local attorney who is very familiar with the requirements in place in New York. This is so because, although some outcomes in the criminal case may seem favorable initially (for instance, no fine), the actual outcome may affect your ability down the road to remove the arrest and charge from your history.

I hope that I have been able to assist you. If you have any follow-up questions, feel free to ask. Otherwise, please leave positive feedback. Thank you!

Customer: replied 1 year ago.
Thank you for taking your time to answer. I was hoping to have a NY lawyer answer the question in detail extend on the matter. I feel confident to receive ACD on the case but I need to know what does sealing the case means after the probation period? Even if the criminal case gets sealed, will I still have an arrest record? If anyone ever asks me of criminal history and arrest record in the future after case is sealed, can I reply no or will they be able to see it on background check? Thanks.
Expert:  Legal-Kal replied 1 year ago.

Sure. For this portion, please understand that I am relying on Illinois law. However, the end result of an expungment/sealing is generally the same. Expungments are orders that all documents regarding your arrest and prosecution be destroyed. That includes by law enforcement as well. This will mean that both the public (for job application purposes) and law enforcement will not be able to see the offense and arrest. Sealing on the other hand means that the documents are not accessible to the public, but still can be seen by law enforcement or prosecuting entities.

So if you were able to expunge and/or seal the matter, and you applied to a job with a public employer or someone asks you if you have been arrested or charged, you do not have to disclose the arrest or charge. A state run background search will also not reveal any arrest. Unless you outright beat the case, or it is outright dismissed, you can apply to expunge/seal immediately. However, sometimes there will be a waiting period. This waiting period depends mainly on the outcome of the case and state law. If the outcome is an ACD, you will be allowed/eligible to seal or expunge the matter after, and only after, the period of ACD.

However, you must be aware that there is no federal expugement or sealing law. If New York allows you to expunge or seal this arrest, the federal government does not, and will not, destroy the records, as they are under no requirement to do so.

Customer: replied 1 year ago.
Thank you. When you said federal level which is something I haven't thought of, what dos it mean and when and where will this show up?
Expert:  Legal-Kal replied 1 year ago.

Arrests and convictions are stored by state law enforcement and federal law enforcement. So, for instance, if law enforcement in the State of New York run a background check on you after the ACD and expugnement/sealing, the arrest will not show up. But if federal agents (FBI, ATF, etc) run a background check on you, it will show up. Also, if, hypothetically, you were arrested and charged on the federal level, and the judge asks about your background, the prosecutors for the federal government can tell the judge about it.

Customer: replied 1 year ago.
Do you know if it will come up on FINRA or SEC background check?
Expert:  Legal-Kal replied 1 year ago.

While I am not 100% certain (depends on which criminal history search they do, state or federal), the application will usually ask you to disclose convictions. ACDs will not lead to conviction. So if they do a search and it has not been expunged, whether it is state or federal, the arrest will show up.

However, in this situation, I would be more concerned with "crimes of moral turpitude." These are offenses usually relating to an individual's character. These include: theft, forgery or any crime involving dishonesty. Theft of Services does fall within the penumbra of a crime of moral turpitude. Again, however, if there is no conviction, you will not have to worry about this. If you are concerned with even an arrest (which usually won't disqualify you from certain things), I would obtain an attorney to negotiate an amendment to the offense to something not relating to moral turpitude, then obtain an ACD and eventual expungment.

It is always best to be honest on these types of applications, especially with federal applications as you cannot be certain which database they will tap into. Again, the best outcome in your case will be: an ACD of the initial charge (preferabbly an amended charge) and expungment. In that case, on your application, you can indicate that you have not been convicted of a crime and it would not be a lie.

Expert:  Legal-Kal replied 1 year ago.

Furthermore, as I understand it, FINRA applications regarding criminal matters only request investment or investment related offenses. Your charge here would not fall under these areas.

Customer: replied 1 year ago.
That would be great. I am already registered with them but asking for future references. I take it as once my case is sealed(cross fingers), I do not need to disclose ever being arrested if anyone asks?
Expert:  Legal-Kal replied 1 year ago.

For the most part, that would be correct. It would be important to listen to (or read) the question carefully. By law, only certain employers are entitled to ask about sealed offenses (prosecutor's office, law enforcement, applying for a weapons license, federal government security clearance, etc.). Since it doesn't seem that you are attempting to obtain employment at one of these locations, you will not be asked about sealed or expunged offenses/charges. You'll only be asked about convictions.

Also, keep in mind some jurisdictions require you to file a separate Petition or Motion to expunge or seal, as it is not automatically done. As for this, it would be wise to speak to a New York attorney after your ACD is completed. Most attorneys do not charge for a telephone consultation. They can let you know if it is sealed immediately and automatically, or if you have to complete additional steps after the ACD term to seal/expunge.

But, to again answer your question, you would not normally have to disclose an ACD arrest unless specifically asked by an authorized agency as I described above.

Hope that helps!

Customer: replied 1 year ago.
It certainly helps. Thank you. Do you think I need to obtain a local lawyer for court appearance or can I request for a public one? For public, when do I make that request? For ACD,do I need to plea guilty first or what's the correct step
Expert:  Legal-Kal replied 1 year ago.

As I understand the nature of the offense, it is a misdemeanor, which means, because it is an offense punishibale by jail, the law allows you to obtain a public defender if you qualify. You may ask for a public defender on your court date. If your request is refused due to you not qualifying for one, you have the right to request a continence to hire your own attorney. I WOULD HIGHLY ADVISE YOU TO HAVE AN ATTORNEY. This is to make sure that you obtain the correct disposition so your offense would be sealed, which would hide the matter from the public view. You can also speak with this attorney regarding if the arrest can also be sealed/expunged.

You don't want to find yourself in a situation where you thought you were getting something in Court, only to find out that you received something different. This is where an attorney can help you while you are in Court, because you only have one chance to obtain a certain disposition from the Court.

As for the correct steps, I must admit I am not that familiar with it as I am not a New York attorney. However, I do know that the case is pretty much "put on hold" for usually six months and, if you do not get arrested and comply with all other requirements that may be imposed, the case will be dismissed. Whether or not there is a plea, I cannot be sure.

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