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My attorney filed a motion to dismiss a criminal complaint

against me for being facially...
My attorney filed a motion to dismiss a criminal complaint against me for being facially insufficient. Even a layman without a law degree would agree - it was poorly drafted and barely touched on elements to make a prima facie case. In NYC a one count B misdemeanor doesn't get a trial jury - it is bench (I am sure you know this, but I was horrified to learn) --the prosecutor responded to this motion NOT by redrafting complaint, but rather denying it and including for reason of denial email correspondence and other exhibits which made apparent my previous arrest in a case I received COMPLETE DISMISSAL for bc the prosecutor made egregious errors. It is my personal opinion this is a revenge thing, but that's just my opinion. As such, the judge denied the motion bc the prosecutor only submitted exhibits convenient for them, while my attorney was attempting to be ethical and stick to the four corners of the complaint.
My question is this: are a defendant's rights violated if, in a response for a motion to dismiss for lack of making a prima facie case, the prosecutor's response to judge, who is the fact decider in bench trial, was a series of exhibits of a previous case that had been dismissed in my favor and sealed? I feel like this was extremely unfair.
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2/17/2017
Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 28,125
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hi,

I'm Zoey and I'll be assisting you. I'm reviewing your question now. Please be patient while I research and compose a reply for you.

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Customer reply replied 9 months ago
Thank you very much, Zoey. I appreciate the added diligence bc the circumstances are rather odd and even my ex-attorney said he didn't know what to make of it. He brought it up at the court date and told the Judge "Your Honor this is highly unusual the prosecutor has submitted all kinds of exhibits you should dismiss this here and now for that reason alone." Judge said no, then denied the motion and set a trial date. If her ruling is so skewed and obviously in favor with what prosecutors want, I do not think I will get a fair trial. I got a new attorney bc this attorney (not incorrectly) said if I was found guilty he could guarantee a reversal on appeal and he added lawyers never guarantee anything but this is that over the top. But that's fine for him to say -for ME that's potentially being found guilty, then the long road toward appeal. I feel violated. Maybe I wasn't. But it felt very wrong.

Judges are trained to be fair and impartial. The fact that yours became privy to information which he would not have seen but/for the prosecutor's exhibits does not mean that he would by definition be biased against you. I cannot tell if the prosecutor acted in bad faith by presenting evidence of past bad acts. It sounds like he did, but without actually seeing the complaint, your attorney's motion and the DA's response I cannot be sure. Your lawyer feels he did, however, and if I accept that at face value for the purpose of answering this question, then the judge's failure to agree with him would be an indication of likely bias.

You could, of course, have your new lawyer file a motion to get the judge to recuse himself if you feel by his ruling that he cannot give you a fair trial. Unfortunately, however, the judge who gets to rule on that motion, is the judge you'd be asking to step down, so you may only further alienate the judge, which again may be more helpful on appeal than on the trial level, unfortunately.

You don't have much you can do here except to preserve the record for appeal by making sure all of these objections are on the record.

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Customer reply replied 9 months ago

I agree with what you are saying...it makes sense. At this juncture, the can the prosecutor decide not to pursue the case? My issue with my previous attorney, and why I moved to find new representation, is that he stubbornly refused to speak to the prosecutor and kept chanting "four corners of the complaint for prima facie" like a legal broken-record. Now that we have gotten to this point, is it fair for me to request that my current attorneys reach out to prosecutor and flat out present the issues that will be brought out at trial that will make this a disaster and potentially embarrassing for DA's Office and he may decide not to pursue charges? I appreciate what you are saying about how judges are trained to be impartial, but prosecutors are also trained to seek to do justice and not seek conviction rates. The reality doesn't appear to match expectations as often as one would like and given that my life and my liberty and my reputation is on the line, I have zero faith that the prosecution will not simply have an ex parte convo with judge and even if I have the reincarnated spirit of ***** as my attorney the judge will simply rule guilty bc hey! It's a bench trial! So that's the long-winded first part of my question - can it still be dropped by a prosecutor or must we proceed toward trial now? Second question - what can attorneys do to secure a just ruling at a bench trial. Can attorneys pre-prepare the appeal they would make should the judge rule unfavorably but also unjustly / I have heard there are ways attorneys can make certain points to judge?

Customer reply replied 9 months ago
The charge is a one count stalking charge for five emails sent over a single day period consisting of zero violence. Zero physical following. Zero phone calls. Five emails. The contents of the emails attack a cease and desist letter sent to me from victim's attorney which made false statements which I believe was my right to defend. The judge rules 5 emails show a course of conduct, and the material harm component is met bc victim was scared enough to have their attorney pen a cease & desist letter. This victim is a liar - first, they could have blocked the email address. Simple. I was not attempting to reach out in any other way. Once I had completed my points - 5 short emails bc I was so incensed by false statements new points kept occurring to me. Ideally one email would have been better, but five is worth a criminal trial?! Violation of a cease & desist letter is one thing, but does that give the person who initiated the cease & desist to launch whatever accusations they wanted? That is not right. It is shocking.

I don't know anything about your case, including the charge. A prosecutor has the discretion to handle his or her case pretty much as he or she sees fit. He can choose to dismiss the case. He can further reduce the charges. He can hold fast. My own experience with B misdemeanors is that if the case goes on long enough, the ADA will ultimately offer you a violation, just to finally get the case off of his desk.

You can certainly ask your lawyer to speak to the prosecutor and redouble his efforts to dismiss or reduce charges. However, given the nature of the charges, of which you have just informed me, the complainant likely wants a protective order, and if he dismisses the case, the judge would have no authority to grant one.

I'm sorry but I can't take on the rest of this right now as I'm fast approaching bedtime. I'm turning in for the evening and will respond to your other issues when I wake up in the morning.

Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 28,125
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Customer reply replied 9 months ago
No that is okay, thank you so much. If I have more questions I will request you and pay again as you have given me a lot of time and consideration. Thank you so much, I really appreciate it!

Thank you! If you do still want to follow up on this issue, you can still post to this thread. Follow ups are free so long as they relate to the origiinal problem. If you have a brand new situation and you wish to request me, post a brand new question and begin it with "For Zoey." In that way the other legal experts and I can all see that it's for me, and I will reply.

For what it's worth, my very first criminal trial as a rookie lawyer was an assault in violation of an order of protection reduced to a B misdemeanor on the eve of trial just so that I would not be able to put the case to a jury. So, it was a bench trial. The ADA, also a rookie, did some slimy things too. But the judge was fair-minded and in the end, the state didn't meet its burden.

Over the span of a long career, I've tried numerous cases directly to a judge in both Criminal and state Supreme courts. In some instances, my clients had records that were so bad that, however the judge appeared to feel about my client, he was still likely going to get a more fair shake from a judge than a jury. What I've seen is that even judges who could best be described as hanging judges bent over backwards to be scrupulously careful during the actual trial. More than anything else, judge's hate reversals and if they get too many of them, they get in trouble with their boss.

So although your lawyer has has made his objections known, hopefully, your judge will be no exception to the general rule and give you the fair and impartial hearing you're entitled to at trial.

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Category: Criminal Law
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Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.

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