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I am trying to determine if there is a chance that my son…

Customer Question
I am trying to...

I am trying to determine if there is a chance that my son may be granted vfo. 8 years ago he got sexual misconduct charge, it is noted that there was no violence or force. He recently violated probation by getting a dwi and is now in prison on original charge. We are in NYS

Lawyer's Assistant: What was the conviction for exactly? Have all appeals been exhausted?

Class d sexual misconduct. I am being told by prison counselors that vfo would not be granted because of the charge

Lawyer's Assistant: In what state did the DWI occur?

I understand he can apply but do not know the process and if it would even be gramted

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Dwi was in ny but that is not what he is in for

Submitted: 6 months ago.Category: Criminal Law
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Answered in 24 minutes by:
1/3/2018
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 6 months ago
Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 31,293
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
Verified

Hi,

I'm Zoey.

I've reviewed your post. Please be patient as I may need to research for you, and it also takes time to compose and type a reply.

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Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 6 months ago

A "violent felony override" is not a document, and it's not mentioned in any statute. It is just a provision that would allow the Department of Corrections to allow some violent felony offenders the opportunity to get out early on work release or in some other program.

Basically, as a threshold requirement, your son would have to be able to document that his particular offense was not one that involved the use or threatened use of a weapon and that nobody was injured. That could be obtained from the judge. From there, however, there are other qualifying factors. You can see them here in 7NY-CRR.1900.4(c)(iii) which discusses eligibility:

https://govt.westlaw.com/nycrr/Document/I4ef4f08bcd1711dda432a117e6e0f345?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

Unfortunately, even with such certification from the judge, according to subsection (2)(ii) of the law, this particular felony is on the list of felonies that would disqualify him from further consideration for the VFO. So he can apply, but he is ineligible for the relief he seeks.

I am very sorry to be the bearer of bad news, but you've been informed correctly about his lack of eligibility.

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Customer reply replied 6 months ago
Ok. Thank you. We had hoped that since it states no violence or force used that would be taken into consideration to grant
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 6 months ago

That's the first of several criteria. So it's good for an inmate that no violence, force, weapon or threat of force was used. That could get him an early release from a felony in subsection (c)(ii) But from there, as you can see on the link I gave you, there are other qualifiers needed for eligibilty and his felony is specified elsewhere as one that would not be eligible.

The problem started here, which Corrections is apparently taking very literally:

https://govt.westlaw.com/nycrr/Document/I4f08518acd1711dda432a117e6e0f345?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

Frankly, even when an inmate is technically eligible, it's all at the discretion of the Department of Corrections. The override need not ever be granted.

I am sorry to be the bearer of bad news.

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