Frequently Asked Questions

fingerprintsThe Attorneys at Gribetz & Loewenberg know you have questions.  When you or a loved one have been arrested or have concerns about a criminal procedure, call us immediately to ensure that your rights are protected.

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation; see the complete Legal Disclaimer. Call us at 845-634-9500 any time — we stand ready to serve you.

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Will I have a criminal record if I am convicted of Drunk Driving (DWI) or Shoplifting or any other misdemeanor?

Yes. Both Driving While Intoxicated (Drunk Driving) and Shoplifting (Larceny) are crimes. Drunk Driving and Petit Larceny (theft of property that is worth less than $1,000.00), are misdemeanors. Grand Larceny (theft of property worth more than $1,000) is a felony. If you are found guilty of a misdemeanor or a felony, you will have a criminal record.

Why should it matter to me if I have a criminal record?

There are important reasons why you should avoid having a criminal record, and that’s why it’s very important to have zealous representation in court. Among other issues that arise if you have a criminal record, you might lose your license to be employed as a real estate broker, a nurse, a therapist, a hair dresser or any other professions for which New York State issues a license. And in some circumstances, a second offense and conviction can result in more severe penalties including a longer prison sentence and greater fines.

Can I get my criminal record expunged?

No. New York State does not permit criminal records to be expunged. However, under certain circumstances, we can apply to the Court for a Certificate of Relief from Disability which may help you if your criminal conviction is presenting a bar to employment or licensing by New York State or any of government agency.

What is an ACD?

An ACD is an “Adjournment in Contemplation of Dismissal”. If your case is “ACD’d”, it means that the charge against you will be dismissed automatically (typically in six months) provided you are not arrested and charged with another offense during that time period. If your case is ACD’d, the fingerprints and photograph that the police took upon your arrest will be destroyed by operation of law when your case is finally dismissed.

If I am found guilty of a sex offense, will I have to register as a sex offender?

Yes. Under SORA (Sex Offender Registration Act), there will be a determination made as to what level offender you are. This determination is made by using a formula and point system that takes into consideration many factors including the crime you have been convicted of, your criminal history and your relationship with the complainant. Depending on the level designation you receive (1,2 or 3), you might be required to register for your lifetime.

If I agree to plead guilty, what rights will I be giving up?

A guilty plea is exactly the same as if you went to trial and a jury voted to convict you. If you plead guilty, you are giving up many rights, including your right to a jury trial, the right to cross-examine your accuser, the right to present evidence to the jury, the right to testify in your behalf, the right to hold the government to its burden of proving you guilty beyond a reasonable doubt and the right to present any legal defenses you may have like self-defense, alibi or misidentification.

If I am stopped for drunk driving, should I agree to take the breathalyzer test?

The decision is entirely up to you but you must know that if you refuse to take the breathalyzer test, even if you have had absolutely no alcohol to drink, your driving license will be revoked by the Department of Motor Vehicles. The revocation is not by court order and the court cannot issue any order to override the Department of Motor Vehicle’s automatic revocation of your driver’s license if you refuse to submit to the breathalyzer test. (For more information about Drunk Driving, see our DWI Intro Package).

I found out that the detectives who arrested me looked at my profile on Facebook. Can they do that?

Yes. Anything you post about yourself on social media is not private. You should know that detectives typically will check your social media posts if they suspect you of criminal activity.

I have been notified to appear in criminal court. What happens if I don’t show up?

If you have not yet been arraigned (read the charges and entered a “not guilty” plea), the Court will issue a warrant for your arrest (an Arrest Warrant). If you have already been arraigned but did not return to Court when required, the Court will issue a Bench Warrant. Either warrant authorizes the police to arrest you and bring you to Court to answer the charges. However, if you’ve failed to appear in Court after your arraignment, you might be charged with another crime— bail jumping.

What is a misdemeanor?

A misdemeanor is a crime for which you can be sentenced to a term of imprisonment for more than 15 days but less than one year in the local jail.

What is a felony?

A felony is a crime for which you can be sentenced to a term of imprisonment in excess of one year in a state correctional facility.

What is bail?

Bail is money that the Court will require some defendants to post in order to ensure that they will return to Court on every scheduled date until their case is concluded.

What factors does the Court consider in making its determination about the amount of bail that should be posted?

The Court will look at the nature of the crime, your ties to the community in which the crime was committed, your ties to your own community, your reputation, family ties and responsibilities, employment, where you reside and for how long, with whom you reside as well as your criminal history.

What does it mean to be “ROR’d”?

If you are “ROR’d”, you have been released on your own recognizance without having to post any money with the Court to ensure your return for the criminal proceedings.

What is a grand jury?

A grand jury is a group of not less than 16 people but no more than 23 people who are required to hear evidence and examine physical evidence of criminal offenses, and vote on whether to hand up an indictment formally charging the defendant with any such criminal offense. The evidence is presented by the prosecutor, the witnesses are not cross-examined by the defendant’s attorney and the proceedings are secret.

If I am the defendant, can I testify in the grand jury?

Yes, unless you are charged in a sealed indictment, you are given the opportunity to testify in the grand jury. You can have your attorney present with you when you testify, but your attorney is not permitted to ask any questions or to be present when any other witness testifies in the grand jury.

Do all the grand jurors have to agree in order for someone to be indicted by the grand jury?

Unlike a trial or petit jury, a grand jury can vote to indict someone for a crime if twelve of the sitting grand jurors vote to indict.

What is a petit jury?

A petit jury is a trial jury. If you are on trial for a misdemeanor, the petit jury will consist of six jurors. If you are charged with a felony, the petit jury will consist of twelve jurors. Unlike In the grand jury, the jury trial is public, and you have many constitutional rights at a jury trial, such as the constitutional right to representation and to cross-examine all the witnesses against you.

Do all the jurors have to agree on a verdict of guilty or not guilty?

At a jury trial, the verdict of guilty or not guilty must be unanimous. If all the jurors cannot agree, the jury will be considered to be a “hung jury”. It is up to the prosecution to decide whether or not to proceed with a new trial in front of a new jury.

What is a Youthful Offender?

If you are eligible for Youthful Offender treatment (that is, you are not charged with a very serious felony like murder, an armed felony crime or rape in the first degree), and you are “convicted” of the charge, a finding of “Youthful Offender” will be substituted and you will not be deemed to have a criminal record and the file will be sealed.

I am charged with the crime of Drunk Driving (Driving While Intoxicated). Do I need an attorney or can I go to court by myself?

Driving While Intoxicated (Drunk Driving) is a misdemeanor. You must have an attorney represent you if you are charged with a misdemeanor or a felony.

What is a bench trial?

A bench trial is a trial before a judge without a jury. If you waive the right to be tried in front of a jury of your peers, you will be tried before a judge who will decide the facts as well as the law in your case.

What happens to my fingerprints and photographs (mug shots) if I am found not guilty of the charges?

If you are found not guilty or acquitted or the charges filed against you, or if those charges are otherwise dismissed, your fingerprints and photos will be returned to you or destroyed.

When can I get the bail that I posted in my case returned to me?

Generally, the Court will issue a bail exoneration order refunding the bail to the person who posted it, less administrative fees, at the conclusion of the case. The conclusion of the case means when sentence is imposed or when a condition of your sentence, such as the completion of a set amount of hours of community service, has been satisfied.

What is NYS’s Rape Shield Law?

NYS’s Rape Shield Law prohibits the introduction of evidence at a sexual offense trial of the complainant’s prior sexual conduct or history. The Courts have held that such testimony is irrelevant to the charges the defendant is facing.

Are there exceptions to NYS’s Rape Shield Law?

Yes. For example, a complainant in a sexual offense case may be cross-examined about her/his prior false accusations of sexual assault. He/She may also be questioned about his/her prior sexual relationship with the defendant (the accused); previous conviction for prostitution if the conviction was in less than three years prior; in rebuttal to scientific evidence that the defendant caused the complainant to become pregnant or be infected with a sexually transmitted disease, or if the Court determines that the evidence should be admitted “in the interests of justice”.

What is embezzlement?

Embezzlement is a form of larceny, the severity of which is dependent upon the amount of money that is stolen. It could either be misdemeanor or a felony and it could either be prosecuted by state law enforcement or by federal authorities.

Is it a crime if I use someone else’s credit card?

Yes, if you do not have the authority from the rightful owner of the card. Larceny through the use of a credit card or a debit card is automatically a felony even if you steal one dollar ($1.00) . However, the penalty increases depending upon the amount of money that is stolen.

I was caught shoplifting and was charged with criminal possession of stolen property, but the store security officer took the items from me. I did not keep any of the items I tried to shoplift. How is that possible?

Because you did possess the stolen items you attempted to shoplift, even for a brief period of time, the law permits the officer to charge you with criminal possession of stolen property. There is no legal requirement that you keep possession for any length of time.

I wasn’t read my Miranda rights when I was arrested. Will the charge against me be dropped?

If the court finds that your Miranda rights were violated, the court will suppress any statements you made to the police. However, you can still be prosecuted if the government feels that they have a case against you without the introduction of your statements at the trial.

I was driving with my friends when the police pulled us over and searched the car. They found cocaine in the back seat area and we were all charged with drug possession. The drugs were not mine but I was still charged. Is that a legal charge?

Yes. In New York State, there is a presumption that if drugs are found in a moving vehicle, all the occupants of the vehicle had knowledge of the drugs and were all are presumed to have possessed it. Of course, under most circumstances, if one of the occupants admits that the drugs were his or hers, the other occupants will have the charges dismissed against them.

More questions?  Call us for a free consultation at 845-634-9500 or use the contact form.