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Stephen A Somerstein

Stephen Somerstein’s Answers

16 total

  • If I accept a plea of E Felony with 5 years probation, is it even worth it continuing my education in Accounting & Corp finance?

    It was a situation of wrong place at the wrong time. My lawyer states that they do not have sufficient evidence against me, but wants me to take the plea of E Felony with 5 years probation.

    Stephen’s Answer

    You have really not given enough facts for me to give you a complete answer you can rely on.

    But, based on what you have said so far I can give you some general advice. First, as a general matter a person should never enter a guilty plea if they are in fact innocent. That said, there are frequently good reasons to break that rule. Sometimes the risk of going to trial is simply too high and not worth it when measured against the consequences of the plea bargain being offered. Sad to say, but for that reason many innocent people accept plea bargains as a practical matter rather than go to trial. The weighing of the risk/benefit is a delicate matter that requires detailed discussion with your attorney. Each case is different and the decision is entirely dependent upon the unique facts of each case and the particular circumstances of each defendant. In the end, the decision to take the plea or not is entirely up to the defendant. While every good attorney will advise their client, and even strongly urge which course to choose, it is your decision to make. You should always bear in mind that most lawyers by nature and training are usually quite conservative, opting for the most obviously safe course most of the time. While you should consider well the advice of your attorney, do not let him/her pressure you into making a decision that you are not comfortable with.

    As to the consequences of a felony conviction on your ability to be licensed as an accountant you must consult with the licensing authorities. In most professional fields, but not all, if the court will grant you a certificate of relief from civil disabilities you can be licensed. That is not to say it will be easy or even if you will ever be able to get a job as an accountant if the case in which you are involved involves some sort of fraud.

    A conviction by plea bargain is a conviction. It is the same as if you were convicted by a jury at trial. As a result, you will never be able to explain it away by saying, "I was in the wrong place at the wrong time."

    If you wish me to give you more complete advice as to whether or not you should accept a plea bargain, we would have to speak in much more detail and I would have to examine the evidence the prosecution has against you.

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  • Will it affect my clearance? Will the command catch wind of the charges? Is there a Way I can get the possession charge dropped?

    I am a prior service active duty marine. A few months ago I got a possession of marijuana and controlled substance. I ended up being convicted for an infraction of marijuana possession and disorderly conduct. I recently extended my inactive ready ...

    Stephen’s Answer

    I do not practice in Buffalo, NY, where I am assuming this occurred. I practice in NYC. Here, a first offender on a simple marijuana possession charge commonly gets an ACD (Adjournment in Contemplation of Dismissal) which results in ultimate dismissal at the end of one year. Sometimes it is coupled with a community service requirement or an obligation to watch some stupid anti mj film. In any event, it is a dismissal with a sealed record--as if it never happened under NYS law. This ability to get an ACD disposition is always enhanced in cases with special circumstances like yours, i.e. ex-marine, reserve duty, security clearance in jeopardy. Talk to a lawyer about getting the case re-opened so you can apply for an ACD. It may be too late now. It is difficult to reopen disposed cases. But it is worth exploring the possibility. Also, you should know that if all you pleaded to was a discon and simple possession, these offenses are not considered crimes in NYS. They are violations, as petty as a traffic ticket, a jay walking or littering ticket. They leave you no criminal record. Also, records of such offenses are also sealed on the NYS central criminal justice system. However, the file remains open at the court house. So, if the question asked is have you ever been convicted of a crime, you can truthfully answer, no. If the question is have you ever been convicted of anything at all, the truthful answer must be yes, but you can explain it is not a crime. Also, if the question is have you ever been arrested, the truthful answer must be yes, with the same explanation. Talk to a military lawyer about the consequences of these events to your security clearance and other service connected issues.

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  • My daughter is 17 year.She wants to move out of my house to 16 years boyfriend house. Who should support her if she moves?

    My daughter is 17 year.She wants to move out of my house to 16 years boyfriend house. Who should support her if she moves? She did not have a job and a boyfriend that does not work

    Stephen’s Answer

    There are many circumstances that can render your daughter an emancipated child. If she enters such status by her behavior, a parent can be relieved of the ordinary obligation to support a child until he/she reaches the age of 21.

    I would require more details via a formal consultation before I could advise you whether your 17 year old is now emancipated.

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  • How many times can prelim be rescheduled because only witness never shows up?

    the victim of a dv case missed 2 prelims. how many times can they keep postponing it and will defendent be released because witness never testifies. its a felony criminal contempt case

    Stephen’s Answer

    Preliminary hearing? What's that? Although the Criminal Procedure Law still provides for preliminary hearings, in practice, they just do not exist in NYC. The prosecutors avoid prelims by going straight to the grand jury within the statutory time allowed. The defendant about whom you inquire must be in custody in a county outside NYC.

    To answer your question, the CPL requires a preliminary hearing or grand jury presentation within 144 hours of arraignment. Absent good cause for delay the defendant must be released without bail (on his own recognizance or, in some counties, paroled) if the prosecution fails to meet that deadline.

    Make sure this defendant's attorney does not waive his rights by unduly consenting to adjournments or otherwise unnecessarily extending the CPL 180.00 deadlines. You should be aware, however, that there are sometimes good and sound tactical reasons to do so.

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  • Will I go to jail or get an ACD?

    Yesterday, I was caught at Macy's in New York. They took me to a separate room. They made me sign something and called the police. I was waiting at the station for about two hours or so. They gave me a DAT stating as 165.40 with a court date. The ...

    Stephen’s Answer

    • Selected as best answer

    The question "Would a Legal Aid Society be enough for this case?" is not a fair one.

    Legal Aid Society criminal defense lawyers are mostly as dedicated, experienced and effective as private lawyers. Like the private bar, some are better than others. That said, the case load of a Legal Aid, or other Court assigned attorney is frequently very heavy and can hamper their ability to give personal attention or provide the hand holding you can sometimes get from private counsel. Many private counsel are also over burdened and not inclined to hand holding either.

    Bottom line--if you cannot afford private counsel and qualify for Legal Aid/Court appointed counsel, you are likely to find yourself in good hands. If you do not qualify, do not misrepresent yourself just so you can take advantage of limited resources for your own use that are intended for the truly impoverished. Just hire private counsel. There are many referral services and computer based lists (AVVO.COM, for instance) that will help you locate a private defense attorney.

    From the information you have provided, I would predict that either with private counsel or with Legal Aid you are likely to get an ACD, some community service and perhaps a small fine. At worst, you may be offered a plea to disorderly conduct, which in New York is a non-criminal offense.Discons are customarily coupled with a small fine and/or community service. A jail term of any length in your case is highly unlikely.

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  • Lawyer not refunding money back.

    A lawyer in Brooklyn asked me for a large sum of money (10K) upfront on August 28th. I paid her in good faith. I have receipt. Now she dropped the 3 cases that she agreed to take: criminal, civil an employment discrimination. She did not do anyth...

    Stephen’s Answer

    As other attorneys who answered have said, you are entitled to a full accounting of the time this attorney has devoted to your cases. This is so even if you agreed to a flat fee. You have a right to fire your attorney at any time and demand an accounting and a refund for any amount left beyond a reasonable hourly fee for time actually spent. New York State disciplinary rules prohibit an attorney from imposing a non-refundable fee.

    According to the Rules of Court all clients have the right to have a fee dispute with their attorney resolved by arbitration. Either call your local bar association--each county has one--or go to the Web Site of the New York Office of Court Administration for instructions on how to begin an arbitration case against your lawyer. You could also bring suit in a court of law--it is your choice--but arbitration is cheaper and quicker. Many people think that because it is administered by local bar associations it is unfair. That is not true. It is a fair process. Most members of the profession are anxious that it have a good reputation with the public. You will not need to hire another lawyer in the fee arbitration process. It is designed to avoid that necessity. You can represent yourself. Just be sure to produce all the records you have. It then becomes a matter of just telling your side of the story to the arbitrator in a setting that is much less formal than a court proceeding.

    As for going to the D.A.-you cannot expect any result. This is not the sort of matter that will usually be prosecuted absent special circumstances, such as the lawyer having cheated many other people out of fees in a similar manner.

    Also, action against a lawyer by the Appellate Division Disciplinary Committee is unlikely in fee dispute cases.

    If you would like to call me about substituting for your discharged attorney in any of your cases, please call me to discuss. (718)788-4700

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  • I'm being charged with robbery in the 1st degree.

    robbery in the 1st degree is what my ex-friend claims i did, i loaned him money we went back and forth via text for about a month, i finally got tired of him telling he will pay me next week, excuse after excuse, i found myself trying to approach ...

    Stephen’s Answer

    You are in a very dicey situation. All will depend on what your accuser says, his/her credibility and any other evidence the prosecutor may have. Critical, of course, will be the content of any statements you may have made to the police or the prosecutor. BE WARNED NOW---you have the absolute right to remain silent and you should do so, if you have not already, beginning now.

    The fact that your accuser owed you money is no defense to a charge of Robbery if the prosecutor can prove beyond a reasonable doubt at trial that you took or attempted to take money from his person, especially with the use of any amount of force.

    The most important factor will be proof of your intent when you confronted your accuser.

    If what really happened is that you just confronted him and demanded re-payment in the future, not at the moment of confrontation, and did not make a grab for his wallet or go through his pockets, you may well have a defense.

    It is also possible that even if the prosecutor cannot prove you demanded or tried to take money you may also be charged with a different crime, such as assault, if you used physical force and caused an injury, or if there was no injury, attempted assault or aggravated harassment.

    Understand please that what I have just said is for your information only You cannot fully rely on it to make any decisions now, because I would need many more factual details from you and would need to review the Court documents before I could render an opinion you can trust.

    Bottom line--talk to a lawyer, and do it soon.

    Just a caution--because I find this practice by some attorneys to be objectionable--be extremely wary of lawyers who tout their "special connections" to the prosecutor's office or the judiciary. It cannot help, and they say it just to mislead and get your business. While it is true that you do need an attorney who does know his/her way around, the fact is is, all experienced defense attorneys know their way around the courthouse as well as the ones who brag about their "special"connections. None of us can or should use any "special influence" to get you special treatment. It would be entirely improper to try to do so, and ethical practitioners know to not even try.

    For the sake of full disclosure, I have been a defense attorney my entire career. Never worked for the prosecutor, and never wanted to.

    Good luck.

    Stephen Somerstein

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  • Should my brother get a new attorney? Charged with attempted rape

    My brother who has been charged with attempted rape among other things has a lawyer assigned to him by the court. This lawyer never goes to speak to him about the case, does not return our phone calls asking about the next trial, and did not speak...

    Stephen’s Answer

    Court appointed lawyers can be very good or very bad--just like the rest of the criminal defense bar. You must base your evaluation on a court appointed lawyer based on your experience with them, just as you would with any other professional. There are many excellent court appointed attorneys, but they can frequently be so overloaded with assigned cases that they cannot give a client the personal attention and responsiveness you can usually expect from a privately retained attorney. Although, I must say, there are also privately retained lawyers who are also not responsive to their clients or their families. Which brings me back to my original point.

    My practice consists in the most part of privately retained criminal cases. I also accept court assignments because I believe in the idea that people who cannot afford counsel should be represented in criminal cases by experienced defense counsel. I strive to give the same level of personal service, expertise and attention to my court appointed clients as I give to my private ones. Many, but not all, other criminal defense attorneys feel the same. It is up to you to find the one that is right for you.

    Unhappily, the Courts do not make it easy to fire a court appointed lawyer with whom you are not happy and assign a new one. That said, your brother could ask, and such a request is sometimes granted--usually only once. Even if the Court will appoint a new one, your brother will have no say in who the new lawyer will be. It is a random choice he will be stuck with.

    If the Court will not allow your brother to "fire" his current court appointed lawyer and appoint a new one or if your brother does not like the new one also, he is left with only one option--to hire private counsel

    Good luck to him.

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  • Trespass Summons for being in the store while it's regular operation hours.

    I received Summons 140.05 for being in the store. I went shopping, bought two pair of shoes and then went to the second store. I knew the owner and had one friend working there. So when I came in, I even gave him a hug, he told to "get out", I tol...

    Stephen’s Answer

    • Selected as best answer

    This is the law in New York: Once an owner of a store or other business establishment tells you you are not wanted on the premises, you commit trespass if you remain--even if you have done nothing wrong.

    In actual practice, this is the probable outcome in a case such as the one you describe: You will make one appearance in court, and depending on who is the judge and the prosecutor, the case will either be dismissed outright and the record sealed, or you will be offered an ACD (Adjournment in Contemplation of Dismissal.) An ACD means that the case is taken off the court's calendar and, if after six months, there is no more problem it will be dismissed and the record sealed. Once the record is sealed you are restored to a pre-arrest status and can answer all questions, with a few exceptions, as if it never happened.

    In either case, it is possible, although in my opinion in this case, not likely, you may be required to perform a couple of days of community service.

    The most important thing for you to keep in mind is that as minor as this case appears to be, do not ignore it---go to court and respond--and do not attempt to defend yourself without a lawyer. There are many many traps for the unwary in the criminal justice system.

    The worst penaly you a likely to suffer here is the legal fee you will have to pay. That said, if you are financially unable to afford counsel, you are entitled to have the court appoint one for you free of charge. You can make that request to the judge on your first appearance. Do not enter into any plea deal, even an ACD, except an outright dismissal, until you actually have spoken to an attorney.

    I hope you have fount this helpful

    Stephen Somerstein

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  • Ho do I seal a 1990 5th degree "E" felony in NYC.

    I have a certificate of relief from disabilities in the state of New York for an attempted criminal possession controlled substance 5 degree "E" felony from 1990 when I was 22 years old however since I am a professional, I am finding it impossible...

    Stephen’s Answer

    Unhappily, if you were convicted as an adult and not a Youthful Offender (If the offense was committed when you were 22 you were not eligible for Youthful Offender treatment) there is no way in New York to get your record sealed or expunged.

    Your only hope is to try to get the conviction vacated. Such applications are rarely granted, and without knowing more, I cannot possibly assess your chances of accomplishing this goal.

    You must consult with an attorney to discuss your matter in detail in order to receive the accurate and complete legal advice you need.

    All this said, you should know that their is a law on the books in New York that prohibits employment discrimination of the basis of a criminal conviction, except if the basis of the conviction is directly relevant to the job at hand. For instance, a potential employer seeking to hire a bank teller can refuse an applicant who has been convicted in the past of larceny. However, a drug crime may not be found to be job relevant.

    Again, consult with an attorney who specializes in this area.

    Best of luck to you.

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