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Richard Ware Levitt
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Richard Levitt’s Answers

7 total

  • I want to know how can I re-open a criminal case which led to my deportation (of which I am innocent)?

    victims lied about being assaulted by my brother and I, spoke to one of them on the phone and he expressed his regret for the outcome and his part in lying in the case

    Richard’s Answer

    It's not clear from your question whether/why you were convicted as you say the victims lied about being assaulted "by my brother" -- why then were you convicted?
    In any event, if you were convicted after trial you can file a CPL 440 motion based on newly discovered evidence. If you pleaded guilty then you likely were required to admit your guilt in your plea allocution and this "victim's" statement won't get you a new trial. Undoing a plea is difficult, particularly years later. The first step is to review the court file and obtain a copy of the plea proceedings. In a meaningful number of cases the court fails to adequately advise the defendant regarding the rights he is waiving and obtain a sufficient admission of guilt. Some courts say these deficiencies are waived if they are not objected to immediately and/or raised on direct appeal, but there are exceptions. In any event there are a number of possible attacks on a conviction, which can only be assessed by reviewing the entire case with care.

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  • Federal criminal tax matter question, but for purposes of helping others feel free to opine on whether it applies in other cases

    Is there a way for defense counsel to attempt to gain a tactical advantage after an indictment is filed against a defendant in federal court by attempting to do the following; asking via legal and court procedures to have certain charges from the ...

    Richard’s Answer

    Yes, an attorney can move to dismiss particular charges prior to a plea or other disposition of the case, on any of a number of grounds. Examples: violation of double jeopardy; the statute of limitations; failure to allege an element of the offense; failure to allege venue; unconstitutionality of the statute, etc. As the other posters state, however, successful motions are fairly rare and any "victory" may be pyrrhic.

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  • What if someone does not get a speedy trial ?

    my friend never got a speedy trial on a stalking charge and was shoved from court to court for 2 year with an order of protection and then found out the person that had the stalking charge and order of protection on her lied and the charges were d...

    Richard’s Answer

    If the original charge was dismissed, it's over and recharging her with the same conduct would violate double jeopardy. If the new charges are based on new conduct, however, then your friend has a new case that must be addressed and she needs a lawyer.

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  • Can i fix my past time serve conviction after 17 years?

    i was innocent of the charges,i took a lower charge plead cause i was young and ignorant to the law,there was no evidence at all,it was just my word for freedom after 5 month of incarceration...now its affecting me with having a real job...

    Richard’s Answer

    This is a problem we have dealt with many times when consulted by immigration lawyers whose clients are trying to un-do an old conviction to avoid deportation. The responses you have been given thus far are generally correct, but, as one poster states there are some narrow exceptions. The first thing we do is obtain and review the court file and also obtain a copy of the transcript of the guilty plea proceedings (although if not already transcribed these are sometimes difficult to track down after many years). Many judges are sloppy in the manner in which they take guilty pleas and fail to ask all the questions that are required to demonstrate that the plea was entered knowingly and intelligently and was supported by an adequate factual statement by the defendant. If the plea was constitutionally inadequate you may have a basis -- even after 17 years -- to vacate the plea.

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  • Whats time frame to be pick up for burglary

    not yet arrested

    Richard’s Answer

    Under section 30.10 of the Criminal Procedure Law the statute of limitations on a burglary is five years. This period can be extended by up to five years under certain circumstances, such as if you are continuously outside the state or your location is continuously unknown and not ascertainable by the exercise of due diligence.

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  • So once someone gets sentenced and is sitting in jail their time is counting right?

    i've been doing research on "time served". after doing so i was lead to believe that once you've been sentenced and taking into custody, your time is being counted. but for some reason other individuals including probation officers have been sayin...

    Richard’s Answer

    I can't speak for Georgia law but, as far as I know, every jurisdiction provides credit for time served, whether in "jail" or "prison." The only common exception is where the person has two or more sentences to serve from the same or different cases and the sentences are not being served concurrently (but rather are being served consecutively), in which case the person will be receiving credit for one sentence but not the other.

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  • Can Brady be asserted in N.Y. State C.P.L. Sec.440.10 motion as the same or Brady is a different type of motion?

    N.Y. State Criminal Procedure Law Section 440.10. is a motion to vacate judgment.1.At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that:A)The cour...

    Richard’s Answer

    Brady issues are routinely brought under CPL 440.10(h), which empowers a court to vacate judgment where "obtained in violation of a right of the defendant under the constitution of this state or of the United States." See People v. Baxley, 84 N.Y.2d 208, 212-13 [1994]; see also People v. Wright, 86 N.Y.2d 591 [1995] ).

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