Interviewer: As an attorney, what do you typically do that helps people in a criminal case? I know it depends on the case, but what are some of the things that you’ve done for people that improved their situation?
Motions to Dismiss: Your Attorney First Examines Whether the Charge against You Has Any Legal Merit
Stuart Austin: Well, it could be anything where from filing a motion to dismiss and as a result, the whole case is dismissed. We just had a case, in essence, where a client was charged criminally and probably should’ve been charged civilly. He wrote a check to his landlord for rent and the check bounced. They said that he knew that there was no money in his account and therefore by writing those checks he was filing a false instrument or a fraud on them and therefore they charged him criminally.
My client said, “That’s not true” meaning, at some point he had the money in his account. Money would be deposited from my job, they asked me for post-dated checks and that’s why sometimes I didn’t even know and I didn’t write the check right then and there. There was an argument back and forth because they were saying that his statements were not true.
But after a long time, with arguments lasting almost a year, the judge finally granted a motion to dismiss and the case was dismissed criminally. Now, if they want they can sue him in civil court, but the criminal case has been disposed of.
Your Attorney Can Work to Mitigate the Level of the Offense
Interviewer: What else can you do? Have you been able to mitigate charges at the felony level down to the misdemeanor level?
Stuart Austin: Yes, that happens all the time. Quite often that happens, but more so in Nassau and Suffolk County then in the city. Frequently, the District Attorneys overcharge out here. Meaning they start with a felony when it really should be a misdemeanor, and by the time they look into it, see what’s going on, they realize that they have overcharged and they reduce the offense down to a misdemeanor. Sometimes if they do it on their own but many times we have to force them or push them to do it.
We just had a case where somebody was charged with slashing a tire on somebody else’s car. They charged him with two felonies, one based on the value and the criminal mischief of the tire. The tire had been purchased six months ago, and the police didn’t do any investigation on how much those tires cost, or researched the fact that those tires were not new, that they were abused by the car’s owner. When we provided them with the valuation report, they realized that they couldn’t prove a felony and had to reduce that down to a misdemeanor.
Your Attorney Will Work to Point out Discrepancies with the Criminal Investigation
The second charge that was possessing a knife unlawfully, against another, and we explained that he wasn’t possessing it against another, which is how the statute is written, he was possessing it, in essence, against property of another, and that’s not the same thing. That difference alters that charge down from a felony to a misdemeanor.
That client went from two felonies, to two misdemeanors, just because the police officers who charged him didn’t really investigate the case as well as they should and didn’t know the law as well as they should have.
Your Attorney Can Petition the Judge to Set a Lower Bail
After the hearing or the evidence suppress or trial, hopefully that the case is found to be dismissed and our client is found to be not guilty and the whole case ends that way. There’s a lot of that going on. We also work for our clients doing bail applications. With a bail application, we try to come up with a bail package that the judge would grant. If the judge has said, “I’m really worried about this person. I want to set a million dollars bail on him” and the client doesn’t have a million dollars bail, sometimes we will say, “Judge, how about $100,000 but we’ll make him wear an anklet so you know where he is, and he’ll only stay in his apartment. He’ll be on house arrest.”
There are different ways to set up a “package” to try to influence a judge who might be thinking of setting bail but is also thinking of a high bail amount. We try to gauge what the judge is thinking, for example, if the judge has fears about the safety of the community or whether this person’s going to run away. In our application, we present information to the judge so those fears can be allayed in a sense of other than just a monetary value. In other words, so he or she won’t ask for an exorbitant bail.