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Brian J Smith

Brian Smith’s Answers

19 total


  • 7 Felonies. 1st degree burglary, 3 counts, Forgery 3 counts, theft ($350-$2500) 1 count. Help.

    OK. I won't go into detail with personal information. My question is, for a first time offense, female between (22-24) years of age. Caught by Macy's loss prevention, employed there. What can happen? Understandable that a EXCELLENT criminal defens...

    Brian’s Answer

    The fact that you have no prior criminal history is very significant. To answer your question, yes, probation with restitution is within the realm of possibility. I was able to negotiate this type of disposition for someone who had embezzled over half a million dollars.
    There are other issues in your case that any top notch defense attorney would also be concerned with. Please feel free to contact me if you'd like to schedule a consultation.

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  • Family member was wrongfully accused of sexual assult w/ child, statatory rape with a 15yr girl that lied how to overturn convic

    overturn conviction? then girl was 15 now 32 and has told everyone she was force to lie from family members, How does he get this conviction off his record, its be 1996 and living in hell, has moved and started a new life too many times, we need...

    Brian’s Answer

    You mention a "440 motion" which makes me think that the original conviction was from New York. There is a procedural device in New York which is referred to as a 440.10 motion, and is a motion to vacate a conviction on the grounds of fraud, duress or misrepresentation on the part of the court or the prosecutor. This motion is named after section 440.10 of the New York Criminal Procedure Law, and may also be brought when there is new evidence that has been discovered that could not have been produced at trial even with due diligence on the part of the defendant.
    It is a complex and labor-intensive motion, but it might be an option for your family member.
    I am licensed in New York, Nevada and Washington, and will be glad to discuss this with you if you like.

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  • I was arrested for domestic violence - strangulation and I am a permanent resident. What are my options?

    I did admit to the cops that I did it. I was not on drugs or alcohol at the time. My girlfriend (victim) is pregnant, but the baby is okay, but she did have marks on her neck. We are no longer together because of the incident and she will testi...

    Brian’s Answer

    A conviction for battery domestic violence, even as a misdemeanor, can have serious immigration consequences. There are ways to negotiate these cases that can prevent them, but it is very much on a case by case basis.

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  • My brother is facing 7 counts of production of pornography in Nevada

    The state declined now to prosecute and I'm sure it's because the photos do NOT meet the definition of pornography because the kid was goofing around and mooning the photographer and his parent was present at the shoot! The Feds have taken the cas...

    Brian’s Answer

    Cases of this type carry minimum mandatory sentences in the federal system, and it is more likely that the State did not prosecute because the US Attorney wanted the case, rather than the photos not being pornographic by definition.
    What the other lawyers said is correct. Hire the best attorney you can.

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  • I have a felony warrant in the state of California can I go to the Nevada DMV and get a state I.d. Without being arrested?

    California warrant may/may not be active

    Brian’s Answer

    My advice to you is this: get a lawyer and take care of that warrant. You might not be arrested on the spot at DMV, but this problem will plague you until you deal with it.

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  • If I entered a deferred adjudication with a 'no contest' plea and have the charge dismissed, can I get the charges sealed now?

    Pleaded 'no contest' w/ a deferred adjudication. Charges were dismissed upon completion of a course and court fines payed. Can I request for a sealing immediately or must I wait for the 2 years?

    Brian’s Answer

    • Selected as best answer

    You may have the record sealed without waiting. Here's the relevant statute:

    NRS 179.255  Sealing records after dismissal or acquittal: Petition; notice; hearing; order.

    1.  If a person has been arrested for alleged criminal conduct and the charges are dismissed or such person is acquitted of the charges, the person may petition:

    (a) The court in which the charges were dismissed, at any time after the date the charges were dismissed; or

    (b) The court in which the acquittal was entered, at any time after the date of the acquittal,

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  • How can I get my sons PSI ..

    the Probation Office interviewed him 2 months ago and his sentencing is in 5 days and his lawyer says he doesn't have it yet ???? I think he has to have it and is just saying he doesn't ... why ?

    Brian’s Answer

    • Selected as best answer

    It's possible that your son's attorney really hasn't received it. However, this can be corrected by calling the Judge's executive assistant and requesting a copy, or even by calling the deputy DA who prosecuted the case.

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  • What is a good argument to get a judge to change sentence back to original plea agreement? not reg judge-sub in at last min.

    defendant failed to turn in psi app. one lawyer said it wouldn't matter to tell about health issues,but the whole basis behind this to get original plea agreement of drug court is not only his drug habit and him getting help for it,(which is why h...

    Brian’s Answer

    • Selected as best answer

    I'm not sure what you mean by "failed to turn in PSI app." If a defendant fails to report for an interview by P&P, then whatever the negotiated plea was may be null and void.
    Significant health issues should always be brought to the attention of the court. Not doing so can have disastrous and sometimes tragic consequences.

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  • Can search be suppressed if there was an anticipatory warrant for one apartment but the search is conducted at a different apt?

    Anticipatory search warrant for one apartment dependent upon controlled delivery. Package was signed for, but not taken inside, and a bellman took it to a different apartment. Police served search warrant at the second apartment.

    Brian’s Answer

    This is a very interesting set of facts, and there are, at least at first blush, some very significant search and seizure issues here. I have been handling major drug trafficking and possession cases for quite a long time, both in Nevada and New York. Cases that raise 4th Amendment issues, such as yours, sometimes have the best chance of keeping evidence out at trial.
    In general, a search warrant must be issued by a neutral and detached magistrate, and must specifically describe the place and the items to be searched. So, if the search warrant in your fact pattern did not include, or describe, the second apartment, then a motion to suppress could be viable.
    Please feel free to contact my office if you'd like to discuss the matter.

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  • At a recent detention hearing the defendant was held while the co defendant was not. Why?

    Both have been federally indicted on possession and trafficking.Both have priors. The prosecutor argued the defendant was a danger, due to some evidence they came up with. The concern was for the discovery due to come out and were afraid violence...

    Brian’s Answer

    This is an extremely difficult question to answer. Quite frankly, given the nature of the charges and the fact that you said both have priors, I'm surprised that one of them was granted pretrial release.
    The usual factors considered by a judge are whether or not the defendant is a flight risk, and whether or not he is a danger to society. You've presented a set of facts where both defendants are facing charges with mandatory prison time. A lot more information would be needed before anyone could answer why one of them is out while the other one is in.

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