Archive for the ‘ Criminal Defense ’ Category

What Are The Larceny And Theft Laws In New York?

Posted on: November 16, 2017 by in Criminal Defense
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In all times and places, stealing has been against the law, but in the modern world, there are more ways to steal and more types of stealing – identity theft, for example – than ever before. Stealing includes larceny, burglary, robbery, and more. How are these crimes defined? If you’re wrongly charged with stealing in New York, what is your recourse? Keep reading. You’re about to learn those answers and more.

Theft – called larceny in New York law – burglary, and robbery are different crimes in this state. All three crimes involve stealing, and convictions for these crimes are sometimes punished harshly. If you are arrested for larceny, burglary, or robbery in Westchester County or anywhere in New York, reach out at once to an experienced Westchester County criminal defense attorney for the legal help you’ll need.

What constitutes larceny in New York? Larceny is simply theft committed without the use of intimidation or force and with the intention of depriving the rightful owner of the property permanently or semi-permanently and exercising control of the property (or enabling a third party to have that control) permanently or semi-permanently. How is “property” defined?


New York lawmakers have spelled out this definition: Property is any “money, personal property, real property, computer data, computer program, thing in action, evidence of debt or contract, or any article, substance or thing of value, including any gas, steam, water or electricity, which is provided for a charge or compensation.” The value of any “property” is its market value when the crime is committed.

How is larceny prosecuted in New York? What are the penalties for those who are convicted? “Petit larceny” (petty theft) is the theft of property valued at under $1,000. It’s a Class A misdemeanor punishable upon conviction by up to a year in jail and a fine of up to $1,000.

Grand theft is a felony in New York, and the penalties for a conviction are determined by the value of the property that was stolen:

– Theft of property worth over $1,000 is a Class E felony punishable by up to four years in prison.
– Theft of property worth over $3,000 is a Class D felony punishable by up to seven years in prison.
– Theft of property worth over $50,000 is a Class C felony punishable by up to fifteen years in prison.
– Theft of property worth over $1 million is a Class B felony punishable by up to 25 years in prison.

For any grand larceny conviction in New York, the minimum prison term is a year. Fines may also be imposed on convicted offenders; for grand larceny, the fine is usually twice the value of the stolen property. All larceny is stealing, but burglary and robbery are defined in New York as crimes that add an additional element – like illegal entry or the use of force – to a crime of theft.


Every New York burglary is a felony. Someone commits third-degree burglary when he or she “knowingly enters or remains unlawfully” in a building while intending to commit a crime there. “Entry” is defined as intruding into a building with any part of the body. It need not be forcible “breaking and entering” to constitute burglary.

The crime becomes second-degree burglary if any of these elements are present:

– The building is a dwelling.
– The suspect enters the building while fleeing from another crime.
– The suspect is armed with a deadly weapon or with explosives.
– The suspect injures a non-participant in the crime.
– The suspect appears to display a firearm.

If the building is a dwelling, and if any of the other four conditions listed above are present as well, the crime is charged as a first-degree burglary.

Here’s how offenders convicted of burglary are penalized in the state of New York:

– Third-degree burglary is a Class D felony punishable upon conviction by up to seven years in prison and a fine of up to $5,000.
– Second-degree burglary is a Class C felony punishable upon conviction by up to fifteen years in prison and a fine of up to $5,000.
– First-degree burglary is a Class B felony punishable upon conviction by up to twenty-five years in prison and a fine of up to $5,000.


Like burglary, every robbery in New York is a felony. While larceny is the unlawful taking of property with the intent of permanently depriving its rightful owner of that property, robbery additionally requires the use or threat of force. Robbery is treated as a serious crime in this state because of the threat it poses to public safety.

What are the penalties for persons who are convicted of robbery in New York? A third-degree robbery is a “simple” robbery with no additional aggravating factors. Third-degree robbery is a Class D felony punishable upon conviction by up to seven years in a New York prison.

A person commits second-degree robbery when he or she is aided in the crime by another person who is present, or when he or she injures a non-participant in the crime, appears to display a weapon, or steals a vehicle. Second-degree robbery is a Class C felony punishable upon conviction by up to fifteen years in a New York prison.

Someone commits a first-degree robbery when, during the robbery or in flight from it, that person or an accomplice is armed with a deadly weapon, uses or threatens to use it, or causes serious bodily injury to a non-participant in the crime. First-degree robbery is a Class B felony punishable upon conviction by up to twenty-five years in prison.


For any robbery conviction in New York, the court may additionally impose a fine of up to $5,000 or twice the amount taken in the robbery, whichever is higher. If you are accused of larceny, burglary, or robbery in New York – whether or not you are actually guilty of the crime – you must be represented by an experienced Westchester County criminal defense attorney.

An arrest and a charge are not the equivalent of a conviction. To convict anyone of larceny, burglary, or robbery in New York, the state must prove its case against that person beyond a reasonable doubt, and that isn’t always easy. Don’t wait – if you are arrested for one of these crimes, obtain a defense lawyer’s help at once. It’s your right.

Do Warrants Expire In New York?

Posted on: September 18, 2017 by in Criminal Defense
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Here in New York, you can be arrested on the spot if you commit a crime that is observed by a police officer, but if you’re suspected of a serious crime that no police officer observed, in most cases, the police will request an arrest warrant – with your name on it – from a judge.

If you believe – or know – that an active warrant has been issued for your arrest, contact an experienced Westchester County criminal defense attorney. If there’s warrant for you, your attorney can explain your rights and help you resolve the matter in the best way possible.

What can happen if there’s an old warrant for you – a warrant that you may not even know about or remember? Back in May, Christopher Howard was driving a work van into Brooklyn when he was pulled over by the police for running a stop sign. He explained that the sign was obscured by a car that was double-parked, and the officer was about to let him off with a warning.

The officer explained that he needed to “run” Howard’s driver’s license before he could dismiss him. The officer learned that Howard had an open arrest warrant for an old unpaid traffic ticket. Howard was handcuffed and taken into custody on the spot.

Courts in New York issue two different types of arrest warrants: felony arrest warrants and bench warrants. In most cases, these two types of warrants do not expire in New York, so unless a warrant with your name on it is dealt with or recalled by a judge, it can potentially follow you for the rest of your life.

Many people learn about an old bench warrant when their employers conduct background checks for insurance reasons, when they try to reenter the U.S., and they are detained by customs authorities, or when they are stopped by the police, like Christopher Howard, for a minor traffic violation.


Although bench warrants “never” expire, earlier this year, and in response to cases like Christopher Howard’s, more than 600,000 New York bench warrants – all of them ten or more years old – were dismissed. In August, the district attorneys for Brooklyn, Queens, Manhattan, and the Bronx acted collectively to dismiss the old warrants and to reduce the number of people who are in the city’s courts and jails for trivial and timeworn charges. Manhattan district attorney Cyrus R. Vance, Jr., said the old warrants created needless barriers for scores of New Yorkers seeking apartments and jobs.

What is the difference between a bench warrant and a felony arrest warrant in New York? Bench warrants are issued when someone fails to appear in court as scheduled, fails to pay a fine ordered by the court, or fails to attend or complete counseling, treatment, drug or alcohol classes, community service, or any other court order. These documents are called “bench warrants” because they are issued by a judge – “from the bench” – when someone hasn’t obeyed a court order.

Bench warrants are also sometimes issued for violations of probation. When a New York probation officer believes that a probationer has violated the conditions of probation, the probation officer files an affidavit with the court. Upon reviewing the evidence, a judge may or may not issue a bench warrant for the probationer, and if the warrant is issued, the probationer will be placed in custody and a violation of probation hearing date will be set. At that time, a good attorney may be able to persuade the judge that no probation violation occurred and that the probationer should be allowed to return to probation with no penalty.


Serious crimes in the state of New York can generate felony arrest warrants. A judge in this state will issue a felony arrest warrant when evidence warranting someone’s arrest is produced by a prosecutor or the police, or after a New York grand jury has issued a felony indictment. If a felony arrest warrant is issued for you by a judge in New York, consult a criminal defense attorney at once, and do whatever is required to settle the matter.

Unlike bench warrants, felony arrest warrants are to be acted on immediately by New York’s police officers, and a felony arrest warrant is also applicable across state lines. If there’s a New York felony arrest warrant with your name on it, you can be arrested by the police in any other state – or even in another country – and New York can request your extradition back to this state for prosecution.

The best way to deal with a New York bench warrant or a felony arrest warrant is to retain the services of a criminal defense attorney and go immediately before a judge. If you are unexpectedly arrested in New York because your name is on a bench warrant or a felony arrest warrant, politely exercise your right to remain silent and your right to have an attorney present for any interrogation. Remember, anything you say may be used against you in a court of law, so it’s best for your lawyer to handle any questions or interrogation.


A search warrant is an entirely different type of legal document. A search warrant gives the police the authority to search your home, person, vehicle, or any other location spelled out by the warrant. If you are arrested and charged in New York with a crime on the basis of a search warrant, an experienced Westchester County criminal defense attorney can challenge the warrant on your behalf and argue that any evidence obtained through that warrant cannot be used against you.

If you learn that an old bench warrant or felony warrant is active and that your name is on it, a great deal will depend on the length of time that’s passed and the gravity of the initial charge, crime, or violation. While some bench warrants can be canceled (or “quashed”) upon your attorney’s request, a felony arrest warrant probably will not be canceled, and at that point, you’ll need an experienced defense lawyer’s dedicated help and advice. In some cases, the entire matter can be resolved in one hearing, but if the warrant is linked to a serious or violent crime, the person named in that warrant may be prosecuted to the full extent of the law.

NYC Updates The “Ban The Box” Policy

Posted on: August 18, 2017 by in Criminal Defense
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Over a hundred cities and counties in the United States have approved “Ban the Box” laws that encourage an employer to judge a job candidate’s credentials without distraction from non-job-related details. Ban the Box laws give employment seekers a fair opportunity to land a job by removing the criminal background question on job applications and by keeping employers from conducting unnecessary background checks.

In New York City, since 2015, Ban the Box – called the “Fair Chance Act” in New York City – keeps employers from requesting criminal background information from job applicants until after a provisional employment offer is made. If you have any questions about your rights in the state of New York after a criminal conviction, consult an experienced Westchester County criminal defense attorney for the answers you need.

Since the Fair Chance Act became law, the New York Commission on Human Rights has offered several revisions to the law, including guidelines for “per se” violations and an explanation of how employers may legally withdraw a conditional employment offer after conducting a background check. In August of this year, those revisions to New York City’s Fair Chance Act took effect.


Today in New York City, employers may not ask about a job applicant’s prior criminal history or even ask to run a background check until a conditional employment offer has been made.

If you are seeking work in New York City and you have any kind of criminal record, you should try to become familiar with the provisions of the Fair Chance Act. “Per se” violations of the Fair Chance Act by employers may include:

– expressing in any written or oral solicitation, policy, advertisement, or publication any employment specification or limitation regarding a criminal history (Phrases like “clean record required” or “must pass background check” cannot be used.)

– using a job application form that asks job seekers for permission to conduct a background check, or an application form that asks anything about an applicant’s criminal history, before making a conditional employment offer

– asking about a pending arrest or conviction before making a conditional employment offer

– using standardized job application forms in New York City – forms that may be legal at the employer’s other locations – which request criminal history information

– failing to provide the applicant with a written copy of an employer’s background check or a written copy of the employer’s Article 23-A analysis (Article 23-A is described below.)

– failing to keep the position open for a minimum of three business days from the applicant’s receipt of the background check and/or Article 23-A analysis


After a conditional job offer has been made, that offer may be withdrawn only because of a misdemeanor, felony, or unsealed violation conviction. New York City employers, however, must conduct an Article 23-A analysis and must engage with the “Fair Chance Process” prior to withdrawing a conditional job offer. After making the offer, at that time employers may ask applicants about any criminal background and may conduct background checks after receiving the job seeker’s consent. If a conviction is discovered, the employer may ask for more details. Those details will be needed for an Article 23-A analysis.

Article 23-A, a New York State law, promotes employment opportunities for job seekers with at least one criminal conviction. The law “levels the playing field” for job seekers with criminal convictions and reduces recidivism by increasing the employment opportunities in this state for persons with criminal records. The law requires employers to use these eight factors to determine whether to hire someone with a criminal record.

Employers must consider:

– that New York encourages employers to hire persons with a criminal record
– the specific responsibilities and duties related to the employment
– what bearing, if any, the criminal offense(s) will have on the employee’s ability to perform one or more of – those responsibilities or duties
– the amount of time since the offense(s)
– the person’s age at the time of the offense(s)
– the gravity of the offense(s)
–  any information regarding the job applicant’s rehabilitation and subsequent behavior
– the reasonable interest of the employer in protecting property, specific persons, and the public


Yes, in New York City, a job applicant can be rejected for a prior conviction, but only when there is a “direct relationship” between the criminal conviction and the employment being sought, or if hiring the applicant would create an “unreasonable risk” to property, specific persons, or the public at large. If, after conducting the Article 23-A analysis, an employer cannot ascertain that the “direct relationship” exception or the “unreasonable risk” exception applies, the employer cannot legally withdraw the offer of employment.

However, if a New York City employer establishes that one or both of the exceptions is applicable, and if the employer chooses to withdraw the conditional job offer, the Fair Chance Process comes into play. The employer must provide, in writing, transcripts of all information collected, including a written summary of oral information, to the applicant.

Furthermore, the employer must offer the applicant a written copy of the Article 23-A analysis, inform the applicant that he or she has a minimum of three business days to respond to the findings, and must decide if additional information from the applicant changes the Article 23-A analysis.

If, subsequent to all of the provisions described here, an employer ultimately chooses to revoke a conditional offer of employment, the employer must inform the job seeker in writing. Precisely which jobs are covered by the Fair Chance Act? It applies to all private and public employers in New York City with at least four employees. However, the law does provide exemptions for jobs in law enforcement, jobs working with children, and any job where existing law keeps someone with a particular conviction from being hired.

The Fair Chance Act benefits thousands of New Yorkers who need work, connects employers with hard workers, and reduces recidivism in New York City. Of course, looking for work can be a lot easier if you have no criminal record and nothing you feel you should hide.

If you’re accused of any felony or misdemeanor in Westchester County, New York City, or any adjacent jurisdiction, fight the charge aggressively, protect your rights, and obtain the legal help you need by contacting an experienced Westchester County criminal defense attorney.

FAQs About Probation in Westchester County

Posted on: July 22, 2017 by in Criminal Defense
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In the state of New York, probation is one of the sentencing options available to judges in certain criminal cases. A sentence of probation may be imposed as an alternative to a prison term. In the state of New York, probation is supervised by each county’s probation department, although in New York City, the probation department is operated by the city government. Below are some of the most frequently asked questions about probation in New York.

However, the answers to these questions can only be general answers about probation, because the details of every case will be different. If you are accused of a crime in Yonkers, Peekskill, or anywhere in the state of New York, an experienced Westchester County criminal defense lawyer can explain how probation works in this state and address all of your other legal questions and concerns.

Q: How does probation work in Westchester County?

A: In Westchester County and throughout the state of New York, if you are convicted of certain crimes, before you can be sentenced to probation, you will be asked to agree to and sign a “Conditions of Probation” form. If you receive a criminal sentence in Westchester County that includes probation, you must fully obey all of the terms and conditions of the probation, or you may face a violation of probation or “VOP” charge and the possibility of time behind bars.

Those terms and conditions of probation usually include finding and keeping a job or attending school, routinely reporting to a probation officer, avoiding any criminal acquaintances, and being the target of unwarranted searches and random drug tests. The state takes probation quite seriously, and since probationers have already been convicted of a crime, violations of probation are penalized with no leniency in Westchester County and through the state of New York.

Q. What are the differences between parole and probation?

A. When someone is found guilty of certain criminal charges in New York, probation is one of the penalties that may be imposed. Probation allows a convicted offender to stay in his or her community under terms specified by the court and requiring the supervision of a probation officer.

Parole is early release from state custody, and it must be approved by a parole board. A parolee serves what remains of his or her sentence back in his or her community and under a parole officer’s supervision.

Q. Isn’t probation just a way the system coddles criminals?

A. Not at all. Adults and juveniles who are placed on probation are closely supervised. They must adhere to the law and work or attend school. Probationers must report routinely to a probation officer, and probation officers may visit their homes. Probation frequently includes restitution and/or community service. Probationers with a history of drug or alcohol issues, sexual abuse, and psychiatric or psychological problems are required to seek treatment.

Q. What kinds of crimes are typically penalized with probation?

A. Defendants convicted of the following crimes are frequently sentenced to probation: theft, fraud, burglary, larceny, and robbery; driving while intoxicated (DWI); drug possession and drug sales; simple assault; criminal mischief; illegal possession of firearms; endangering the welfare of a child; and repeatedly driving without a license. In family courts in New York, adults may be sentenced to probation for committing an act of domestic violence.

Q. Can sex offenders be placed on probation?

A. Yes. In fact, a majority of convicted sex offenders in Westchester County are ordered to serve a term of probation. The Department of Probation operates a nationally-recognized sex offender program that closely supervises offenders and offers appropriate treatment.

The Department of Probation supervises convicted juveniles as well as adult sex offenders. Group therapy and individual therapy are offered, while polygraph examinations, computer forensics, and routine surveillance of offenders are used with probationers to maximize the public’s safety.

Q. Precisely what is “restitution” in New York law?

A. Restitution is reimbursement that a convicted offender pays to crime victims to compensate those victims for the losses, damages, or injuries that result from a crime. In Westchester County, the probation department collects and disburses restitution funds gathered from probationers in the county.

Q. What happens if someone violates the terms of his or her probation?

A. When a probation officer has a reason to believe that a probationer has violated the conditions of his or her probation, the court is notified, and the probationer may be ordered to appear at a VOP (violation of probation) hearing.

It’s important in VOP cases for a probationer/defendant to be represented by an experienced Westchester County criminal defense lawyer. In some cases, a good attorney may be able to persuade the judge that no violation of probation took place.

If the court determines that a probationer is guilty of a violation of probation, the court:

– may continue the probation under the same terms and conditions
– may add additional terms and conditions to the probation
– may order the probationer to jail or prison

Q: Can a probationer request an early release from probation?

A: In New York, anyone who is serving probation may ask the court for an early discharge. When a probationer meets certain requirements, the Department of Probation may request an early discharge on his or her behalf. Only the court, however, has the authority to approve an early discharge from probation. Probationers should discuss early release with their probation officers and attorneys.

Q: What if I need to travel outside of New York for a family emergency?

A: Probationers who are in good standing may be approved to travel inside the United States for family emergencies. The probationer must seek prior authorization for the trip if time allows, and he or she must provide the probation officer with complete details and verification about any out-of-state travel.

Q: What happens if someone who is serving probation is charged with another crime?

A: While someone is a probationer in New York, if that person is arrested again for any reason, that person must contact his or her probation officer at once and explain what has happened. Anyone placed under arrest for any criminal charge should also contact an experienced Westchester County criminal defense lawyer immediately.

If you have been convicted of a crime in New York, and if you have received probation instead of going to jail or prison, take advantage of the chance that you are being offered. If you will continue to follow the terms and conditions of your probation as established by the court, you’ll be able to avoid you the harsher penalties that might have been imposed. Anyone sentenced to probation must avoid criminal activity in the future, because the courts are seldom lenient a second time to the same offender.

NYC Makes Some Minor Offenses Fines, Not Crimes

Posted on: June 23, 2017 by in Criminal Defense
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In June, officials in New York City announced a number of new rules for dealing with minor offenses like drinking in public and urinating in public. For the most part, these charges and comparable minor offenses in New York City – like spitting on the sidewalk or entering a closed public park at night – will now be treated as civil matters rather than criminal matters. Instead of going before a criminal judge in a courtroom setting, accused offenders will attend an “administrative” hearing or make a “court appearance” by telephone.

Convictions for minor offenses will now be punished with fines and community service rather than jail and probation. It’s a change that civil rights and social justice activists have advocated for many years in New York City. Supporters of the new measure say it will divert 100,000 cases a year from an overcrowded criminal justice system, and it will keep thousands from acquiring a criminal record.

Nevertheless, there are a number of exceptions to the new rules. Those who are on probation or parole will still receive a criminal citation rather than a civil citation. So will individuals with two felony arrests in the previous two years.

Police officers also will not give a new civil summons to anyone who has “three or more unanswered civil summonses” in the previous eight years. Donna Lieberman, the head of the New York Civil Liberties Union, says that her group will be monitoring police behavior to ensure that officers are in compliance with the new rules and regulations. “The proof will be in the data,” she told the New York Times.


The changes are the result of New York City’s Criminal Justice Act, a set of new laws the city approved and the mayor signed last year that have gone into effect this year. New York is a city known around the world for pioneering tough enforcement against low-level crimes, often referred to as “broken-windows policing” that focused on minor offenses as a method to deter more serious crimes.

However, the Criminal Justice Reform Act obligated the NYPD to establish the new rules and policies. Critics of the new NYPD rules and policies – apparently including police officers who spoke to the New York Post on condition of anonymity – say the changes undermine the older policy. “It’s just going to make crime go up again,” is what one law enforcement officer reportedly told the Post.

However, Inspector Thomas Taffe of the police commissioner’s office disagrees. He told the New York Times that the new NYPD guidelines are consistent with “broken-windows policing,” and he is confident that the new rules will not result in a higher crime rate. “The whole issue is that we don’t ignore the problem. I don’t believe it’s going to affect crime in any way,” Inspector Taffe said.


The changes will also prevent some of the immigrants in New York City from being targeted for deportation, officials said. Under an executive order issued by the Trump Administration in January, some immigrants can be deported after a criminal arrest, even if there’s been no conviction.

New York Mayor Bill de Blasio was a vocal critic of immigration policies under President Obama as well, and the city has frequently refused to cooperate with federal deportation efforts. Sarah Solon, a deputy director for the Mayor’s Office of Criminal Justice, told Reuters, “In the civil system, there is no chance of immigration consequences.”

The Legal Aid Society and the New York Civil Liberties Union contended that the New York Police Department’s concentration on trivial offenses was needlessly exposing New York’s immigrant population to a risk for deportation. Approximately 18,000 people were detained or issued criminal summonses for public urination in 2016, and approximately 90,000 people were detained or issued criminal summonses for drinking alcohol in public. The city does not keep track of how many of those people were immigrants.

However, the city does estimate that about 100,000 people a year will be diverted from the criminal courts and moved into a process that will be conducted by the city’s Office of Administrative Trials and Hearings. Tina Luongo, the attorney-in-charge of the criminal practice at the Legal Aid Society, told the New York Times that the changes are “a good step forward,” but she added that many Legal Aid clients already have criminal records that make them ineligible for a civil summons.


What does the new policy mean for the average New Yorker? It means that you won’t be jailed for more than a day for a crime like public spitting, littering, urinating, committing a noise violation, public drinking, or breaking park rules.

Instead, NYPD officers will issue a civil summons and you will be assigned a court date. In 2015, only 21 percent of those who received a criminal summons for a minor offense in the city were found guilty, but 40 to 50 percent missed their court date, and that generated arrest warrants.

Currently, if you miss your court date for a minor violation, the city might go after your finances, but no arrest warrant will be issued. Individuals convicted of minor civil offenses will have the option of community service rather than paying a fine, and none of it will appear on your criminal record. The New York City police and courts will be able to keep their focus on more serious crimes and more dangerous criminals.

If you’re charged with any crime in the state of New York, it’s important to discuss your case as quickly as possible with an experienced Westchester County criminal defense lawyer. If you are arrested, after you have identified yourself and presented identification, you don’t have to answer any questions from the police, and you shouldn’t. Politely exercise your right to remain silent – simply say, “I would prefer to exercise my right to remain silent.”

Don’t try to act as your own attorney, either, but politely insist on having your lawyer present for any questioning. Don’t plead guilty, and do not sign or consent to any agreement or plea bargain before consulting an attorney. You cannot be convicted of a crime unless a prosecutor can prove your guilt beyond a reasonable doubt, but an experienced Westchester County criminal defense lawyer can provide the legal help you need and fight on your behalf for justice.

What Is A DWAI In The State Of New York?

Posted on: May 24, 2017 by in Criminal Defense
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All fifty states in the U.S. enforce laws against drunk driving. A driver may not operate a motor vehicle anywhere in this nation when his or her blood alcohol content (BAC) level exceeds 0.08 percent. In many states, the drunk driving charge is called “driving under the influence” or DUI. In New York and several other states, the charge is called “driving while intoxicated” or DWI. If you are charged with DWI in New York, you will need to obtain legal help at once and contact an experienced Westchester County DWI lawyer.

A number of laws in the state of New York govern impaired driving, and the charges available to prosecutors include “standard” DWI, “aggravated” DWI, and “DWAI” or “driving while ability impaired.” In most states, if a driver is obviously impaired, that driver can be charged with DUI or DWI even with a BAC level below 0.08 percent. Several states, however, including New York, do it somewhat differently, establishing a separate legal violation for impaired driving below the 0.08 percent level.


In New York, an impaired driver with a blood alcohol content level that measures from 0.05 percent to 0.0799 percent may be charged with DWAI – driving while ability-impaired/alcohol. And even without a blood or breath test, erratic driving, slurred speech, or just an odor of alcohol can trigger a DWAI/alcohol charge.

In fact, there are actually two DWAI charges in New York: DWAI/alcohol and DWAI/drugs. It’s a good idea for drivers in New York to understand exactly what constitutes DWI, DWAI/alcohol, and DWAI/drugs, and it’s also good to know what the penalties are for these crimes.

A driver in New York can be charged with driving while ability impaired if he or she is operating a motor vehicle while impaired by the consumption of either alcohol or drugs. Any driver in New York who faces either DWAI charge will also need legal help at once and will need to contact an experienced Westchester County DWI lawyer.

Although the precise penalties for any particular conviction will depend on the details of the charge and the defendant’s previous convictions if any, the standard penalties for a first and second offense DWAI/alcohol conviction include:

  • a fine from $300 to $500 (or $500 to $750 for a second offense)
  • up to fifteen days in jail (or up to thirty days in jail for a second offense)
  • a ninety-day mandatory driver’s license suspension (or a six-month driver’s license revocation for a second offense)


A third DWAI/alcohol conviction within ten years is punishable upon conviction by a fine of $750 to $1,500, up to 180 days in jail, and an eighteen-month mandatory license revocation. However, if a driver is charged with DWAI/drugs, the penalties can be far more severe.

If you are convicted for DWAI/drugs, the penalties for a first offense include a fine of $500 to $1000, three years on probation, and a minimum six-month driver’s license revocation. For repeat offenders, as you might expect, the penalties grow incrementally harsher with each subsequent conviction for DWAI/drugs.

Drivers in New York should understand that DWAI/drugs includes more than pot and “street” drugs like cocaine and oxycontin. A number of prescription pharmaceuticals and even some over-the-counter medications can be just as dangerous – in terms of impairing someone’s ability to drive – as alcohol and street drugs. No one in New York may drive legally while impaired by any drug even if it is medicine that is prescribed, legal, and required for the person’s health.

If a driver is stopped in traffic by a police officer in the state of New York, and if that officer asks the driver to blow into a breathalyzer device, that driver may not legally refuse. “Implied consent” is the law in New York, which means that simply by driving a vehicle on any street or highway in this state, a driver is legally implying his or her consent to a breathalyzer exam if a police officer requests it.

A refusal to be tested can be penalized with a $500 fine, and your driver’s license will be revoked for at least a year. Commercial drivers who refuse to test face a $550 fine and an eighteen-month driver’s license revocation.


DWI and DWAI charges can be challenged in the state of New York, often successfully, so if you face one of these charges, don’t give up hope and plead guilty. To be convicted of DWAI/alcohol, a prosecutor must prove beyond a reasonable doubt that a driver was impaired. This is difficult when a defendant’s BAC level measured under 0.08 percent, so anyone charged with DWAI/alcohol in this state should seek legal advice at once and fight the charge aggressively.

If you simply plead guilty to either DWI or DWAI, you will be convicted and probably sentenced to the minimum penalties. You will have a criminal conviction on your record, your auto insurance costs will rise, and in some cases, offenders convicted of driving while intoxicated or DWAI may have trouble keeping or finding work, especially any work that requires driving.

On the other hand, an experienced New York DWI attorney can sometimes have a DWAI or driving while intoxicated charge reduced or dropped completely, depending on the particulars of the charge. And even if the evidence is conclusive and a DWI or DWAI conviction is certain, a good DWI attorney will negotiate on a defendant’s behalf for reduced penalties or alternative sentencing. Don’t even think about facing a DWI or DWAI charge without a good attorney’s help.

The better plan, if you intend to enjoy some drinks with friends, is to arrange a safe ride home in advance. Have someone you trust act as a designated driver, or arrange for a ride service, a limo, a taxi, a room, or a friend’s sofa.

Yes, anywhere in the Westchester County and New York City area, a ride-for-hire will cost a few bucks, but if you’ve been drinking, a taxi or a rideshare still costs far less than a ride to the jail, the emergency room, or the morgue. All of the legal trouble attached to DWAI and DWI can be completely avoided when you adhere to one fundamental piece of advice – Don’t Drink and Drive.

Facebook Argues Constitutionality Of Search Warrants In New York Courts

Posted on: February 22, 2017 by in Criminal Defense
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The future of online privacy in the United States may now be at stake in the state of New York. Attorneys for Facebook faced off in February against prosecutors from Manhattan who sought information from the accounts of 381 Facebook users in connection with a disability fraud case dating back to 2013. Facebook also disputes the legality of a gag order issued by a lower court that had prohibited the company from informing users that their pages were being examined by criminal investigators. Thomas H. Dupree, Jr., an attorney for Facebook, told the Associated Press, “The district attorney’s position in this case is chilling.”

Facebook is asking the state of New York’s highest court, the New York State Court of Appeals, to hear the case and issue a ruling. The company’s attorneys told the judges that the company should have legal standing to challenge search warrants when prosecutors seek information from Facebook accounts. Manhattan District Attorney Cyrus R. Vance, Jr., countered that only individual Facebook users themselves have the right to oppose legal efforts seeking their personal information.

The judges asked a number of questions to attorneys on both sides in their effort to decide if constitutional issues are at stake in this case. One point of contention is whether the District Attorney’s court order should be considered as a subpoena or as a search warrant. Facebook claims that the order functions as a subpoena and therefore violates the federal Stored Communications Act, which extends to internet companies the Fourth Amendment right to protection from “unreasonable searches and seizures.”


Prosecutors requested search warrants in 2013 for the accounts of 381 people suspected of disability fraud. Facebook challenged the legality of the warrants, but lower courts agreed with the prosecutors. Those courts determined that Facebook had no legal standing to object since the targets of the warrants were criminal suspects and not Facebook itself. Facebook surrendered the information, but the company continues to challenge the right of prosecutors to seize presumably “private” information from individual Facebook accounts.

Facebook attorney Dupree charged that the scope and extent of the search warrants requested by Vance’s office was “unprecedented.” He reminded the Court of Appeals judges that Facebook routinely cooperates with law enforcement authorities, but he also insisted that Facebook must be allowed to challenge “overly-broad” search warrants. “This case involves the DA’s seizure of the most personal and intimate information imaginable,” Dupree told the AP.

District Attorney Vance reminded the judges that any Facebook user whose account information is seized may sue for damages or challenge the admissibility of the evidence. Vance added that judges must approve search warrants and that prosecutors who use the warrants already have the permission of judges. “Law enforcement is always going to be bumping up against people’s privacy,” Vance explained. The search warrants for social media accounts, Vance continued, are “really no different than if we issued a search warrant into someone’s house and took books and records or a car or a safe deposit box.”


In the disability fraud investigations, prosecutors sought information from the Facebook accounts of retired New York police officers and firefighters in their effort to prove that the retirees were, in fact, leading active lives and lying about their supposed disabilities. Vance’s office charged that the retired New York City police officers and firefighters were fraudulently collecting Social Security disability benefits for claims including insomnia and the inability to make eye contact in conversations.

Some of the retired police officers and firefighters also claimed that they were struggling with mental disabilities as a result of the 9/11 terrorist attacks. “These individuals were faking lifestyles,” Vance said. “They claimed they couldn’t leave the house, couldn’t go bowling, couldn’t see their family.” Sixty-two of the Facebook users and seventy other retirees were eventually indicted in 2014.

Whether the Court of Appeals will decide to hear the case is yet to be determined. A decision is expected in months rather than days or weeks. As more of us use social media, police officers and prosecutors are watching. They may create false identities or accounts to gather evidence. The online activities of police agencies are turning up these days in a number of criminal cases. In some cases, posts on Facebook, Twitter, and other sites have led directly to criminal convictions.


In many cases involving the internet and other 21st-century technologies, our nation’s courts and attorneys have little or no guidance from the law or from prior court decisions. Our culture is now dominated by computers, smartphones, GPS and surveillance devices, and a variety of social media. Can evidence found on social media websites be used legally against someone in court, and if so, how?

And what about so-called “privacy” settings? Do those settings really make any difference? These are among the questions that have judges and attorneys looking for answers in 2017. If you have concerns of your own regarding social media and online privacy, an experienced Westchester County criminal defense lawyer can answer those questions and address your privacy concerns.

As criminal investigations proceed, social media can be used by the police to prove associations between suspects, to deny or confirm alibis, and to find evidence that implicates criminal suspects. Everyone who goes online needs to understand that nothing you post on a social media site is ever really “private” and that nothing you delete is ever “really” deleted. It’s all recorded somewhere. If you have committed a crime and there is online evidence of that crime, you can count on the authorities finding and using that evidence against you.

Anyone charged with a crime – or suspected of a crime – in Westchester County or anywhere in the state of New York should refrain from posting anything at all online. Instead, you’ll need to speak with an experienced Westchester County criminal defense lawyer who can explain your rights, and if necessary, mount a legal defense on your behalf. And if you’re a law-abiding resident of New York, you still need to be smart about what you post online. If you want something to remain private, the internet simply is not the place for it.

Should Juveniles In New York Be Imprisoned With Adults?

Posted on: January 28, 2017 by in Criminal Defense
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In most states, juveniles who commit crimes are charged and prosecuted as adults only if the crime is a serious or violent felony. However, North Carolina and New York charge and prosecute every 16- and 17-year-old as an adult – regardless of the offense. More than 27,000 youths who were 16- and 17-year-olds were arrested in 2015 in New York, and on any given day, about 700 youths 16- and 17-years-old are locked up in New York’s adult jails, including Rikers, awaiting the outcome of their cases.

A youthful indiscretion should not haunt a person for the rest of his or her life, but a 16- or 17-year-old who is convicted of a crime in New York will carry that conviction permanently. People who want to raise the age of adult responsibility in New York, including the “Raise the Age New York” advocacy group, say that the practice of placing youths in jails with adults is harming not only those young people but all of us with its high social and economic cost.

Juveniles with adult convictions often have trouble finding employment as adults, and many social services aimed helping the poor are off limits to persons with criminal convictions. According to Raise the Age New York, state lawmakers should revise New York law so that anyone younger than 18 who is charged with a crime will be considered a juvenile in most circumstances. Exceptions would be made only for violent felonies.


Governor Andrew Cuomo has asked New York’s lawmakers to raise the age of adult offenders in our state to age 18, but legislators have resisted taking this step. Some are concerned that such a change would overload the state’s already-stressed juvenile justice system. Admittedly, overhauling the juvenile justice system would require some resources from the taxpayers, but the current system is far costlier in the long run. Why? Because youths who serve jail time with convicted adult criminals are not being rehabilitated – in fact, they are learning more about being criminals.

At the end of 2016, Governor Cuomo issued more than one hundred pardons to persons who had been convicted of crimes committed when they were 16- or 17-years-old. These pardons are conditional, so they can be withdrawn from anyone convicted of a crime in the future. Legislation to raise the age of adult offenders in New York to 18 is currently languishing in the New York State Senate, where there has been no progress on the proposal since May 2016.

The proposal would not only raise the age of adult offenders in the state of New York to 18, but it would also would keep anyone under age 18 out of the state’s adult prisons, ensure the presence of a parent or a guardian during interrogations and sentencing, and require additional funding for family support centers and special care for children with significant behavioral health issues.


Since the 1980s, a number of research studies have been conducted regarding the impact of imprisonment on juveniles. A 2007 study from the U.S. Centers for Disease Control and Prevention, for example, found that putting children under the age of 18 into the adult criminal justice system increases their violent behavior over time and makes it more likely that they will commit crimes as adults.

The report stated: “In general, juveniles differ from adults in their biologic development and mental processes and capacities. Juveniles are less aware of consequences, less able to regulate impulses or inhibit behavior, and thus less culpable for their actions than adults. In addition, juveniles have less ability to understand and thus participate in the standard adult judicial process. Finally, juveniles are more malleable and amenable to reform of their behavior.”

New York’s incarceration of juvenile offenders with adult criminals also has a disparate impact on minority youths. According to the New York State Division of Criminal Justice Services, black and Hispanic youths comprise 72 percent of all juvenile arrests in this state and 77 percent of all juvenile felony arrests in New York. Eighty-two percent of convicted young black males are sent to adult prisons.


When a juvenile is arrested and charged with a crime in the state of New York, parents should contact an experienced New York criminal defense lawyer with Family Court experience. Nothing is a higher priority than your child’s future. If your child is in trouble with the criminal justice system, a second chance and a little forgiveness are all that most young people need. If your child has been arrested for committing any crime in the state of New York, arrange to speak with an experienced New York criminal defense lawyer who routinely handles cases involving juvenile defendants.

Clergy and activists from around the state rallied at the Capitol Building in Albany in January to urge New York’s lawmakers to raise the age of adult offenders to 18 in 2017. “These teenagers are not adults, and they should not be treated as adults,” said Robb Smith, the director of New York’s Interfaith Impact group. “We know a lot more about human development and psychology now than we did a hundred years ago.”

Why is there opposition to raising the age of adult offenders to 18? Assemblymember Steve McLaughlin, a Republican from Troy, explained: “Many people in this chamber view it as a gang recruitment act, a free pass to family court. Maybe there’s some middle ground that we can get to, but to blanket this and say anybody 16 and 17 years old is gonna end up in family court, it doesn’t necessarily sit well with everybody.”

Nevertheless, there is still some hope that the legal situation for juveniles in New York might change in 2017. New York Assembly Speaker Carl Heastie says that he is making it a priority to raise the age this year. Early in January, Heastie told his colleagues in the New York State Assembly, “Today, 16- and 17-year-olds are still being sentenced to adult correctional facilities, where they do not belong. It is time our partners in government join us in passing and enacting a measure to move these cases to family court, where they belong.”

The End of Stop-And-Frisk Did Not Boost Crime in NYC

Posted on: September 23, 2016 by in Criminal Defense
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Until 2013, when a federal judge decided that New York City’s “stop-and-frisk” policy was unconstitutional, the policy encouraged the city’s police officers to question and pat down anyone who looked “suspicious” – without regard to whether or not officers had reasonable cause to suspect a person of criminal wrongdoing. However, statistics showed that black and Hispanic individuals had been disproportionately targeted by the policy, and in 2013, Manhattan Federal Judge Shira Scheindlin ruled that the city’s stop-and-frisk policy was unconstitutional.

Not everyone in New York welcomed the decision. The editorial board at the New York Daily News vigorously disagreed with Judge Scheindlin’s ruling. In a series of editorial columns, the newspaper’s editorialists claimed that stop-and-frisk was essential to reducing crime in the city, and the editorial writers suggested that the elimination of the policy could cause crime rates to explode once again in the five boroughs. One editorial said, “Make no mistake – Scheindlin has put New York directly in harm’s way with a ruling that threatens to push the city back toward the ravages of lawlessness and bloodshed.”


Other observers felt that excessive policing was more of a problem than a solution – but not the Daily News. At the time, Mayor Bloomberg agreed. In response to Judge Scheindlin’s decision to end the stop-and-frisk policy, the mayor said, “I worry for my kids and I worry for your kids.” In 2011, New York City police stop-and-frisk incidents numbered approximately 685,700, but after Judge Scheindlin’s ruling, only 22,900 persons were stopped and frisked in 2015. If the mayor and the newspaper had been right, a huge crime wave should have consumed New York City. It didn’t.


Thus, after three years, and in a remarkable about-face, on August 8, the Daily News reversed its position on the stop-and-frisk policy. In an editorial titled “We Were Wrong,” the newspaper’s editors admitted that after three years, the city had not experienced the “lawlessness and bloodshed” that they had predicted. “We are delighted to say that we were wrong,” the editors proclaimed. “Not only did crime fail to rise,” said the August 8 editorial, but “New York hit record lows.”


It was an unprecedented reversal for a major newspaper. Since Judge Scheindlin’s decision in 2013, the New York police for all practical purposes abandoned their stop-and-frisk policy, and the crime rate didn’t skyrocket – in fact, it declined. The Daily News editors honestly admitted that they had been mistaken, saying, “There is no doubt that, heavily grounded in memories of past horrors and too little informed about the potential of smart new strategies, our fears were baseless. We predicted a rising body count from an increase in murders. We are delighted to say that we were wrong.”

Supporters of stop-and-frisk had endorsed the policy because it presumably made New York City safer for everybody, including the minorities that were targeted by the policy. The Daily News now concedes that the current policy of “precision policing,” which focuses specifically on individuals and locations rather race, is as just effective or more effective at keeping the crime rate low than old policy.


The reversal by the Daily News isn’t the end of the story, however. The old stop-and-frisk policy still has its supporters, and they still have some arguments that they can set forth. Theoretically, it is possible that the stop-and-frisk policy worked to reduce crime, and that ending the policy did not result in a rising crime rate only because other factors were at work to keep the crime rate under control. What those factors might be, however, remains vague.


Moreover, any remaining support for stop-and-frisk should explain why crime is increasing in other major U.S. cities over the last three years but not in New York. The city’s continually declining crime rate is the singular piece of evidence which most strongly suggests that stop-and-frisk provided little benefit to New York City’s residents and visitors and did little to deter criminal activity.

Eugene O’Donnell is a lecturer at the John Jay College of Criminal Justice. He’s also an ex-NYPD officer and a former prosecutor. He says police work should be “community-specific,” because every city and in fact every neighborhood is different, and the solutions to crime in one city or community may not work in others. Over time, as a city and community change, so should its policing. New York City, for example, can still be dangerous, but crime rates in the city remain far below the violent crime peak of the 1970s.


Moreover, says O’Donnell, the policy tainted the image of the NYPD. Constantly stopping and frisking individuals was hard not only on the innocent people stopped and frisked, but it also took its toll on the cops and the department. “It compromised the professionalism of the job, and it did exacerbate tensions,” O’Donnell said, adding, “I do fear that there’s irreparable damage done to the police profession.”

Today, if you are stopped by the police while walking or driving in New York City, in Westchester County, on Long Island, or anywhere else in our state, be as cooperative and polite as possible. If an officer asks for your name and address, cooperate. If an officer asks for identification, and you have your I.D. with you, show it. However, if a police officer starts asking other questions, simply and politely say, “I’m sorry, officer, but I would prefer to exercise my right to remain silent.” If an officer frisks you, do not physically resist – instead, let an experienced Westchester County criminal defense attorney deal with the matter legally.


A police officer in New York City or anywhere else should have reasonable cause to believe that you are committing or have committed a crime, or a warrant for your arrest, before frisking you. If there is no warrant and no probable cause, it’s possible that any charge against you could be reduced or possibly even dismissed, but you’ll need to speak with an experienced Westchester County criminal defense attorney and get the legal help you need promptly. Let your attorney know if you suffered discrimination or excessive use of force by the police.

When public figures make public apologies, it’s rare and noteworthy. But when a newspaper as large and vocal as the New York Daily News apologizes, it’s even rarer and even more noteworthy. It’s also a good sign that the people of New York City have something more than good police protection – they’ve got a newspaper they can trust to get it right, even if it takes some time.

Judge Rules against Cell Phones as Secret Surveillance Devices

Posted on: August 19, 2016 by in Criminal Defense
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In the 21st century – as you know – we’re living in a surveillance society where the government can easily monitor your online activity and track your cell phone. One item that’s intrusive is something called a “StingRay,” a little-known cell phone surveillance device. Manufactured by the Harris Corporation and originally developed for military and intelligence use, the StingRay and similar devices have for years been widely used by law enforcement agencies across the nation. The StingRay is a cell site simulator, a device that mimics the activity of a cell phone tower and provides authorities with location data.


The increasing use of the StingRay has also largely been kept secret until recently, and courts are now rejecting the use of the StingRay device and the secrecy that surrounds it. If you are charged with a crime in the state of New York on the basis of evidence gathered using any surveillance device, an experienced Westchester County criminal defense attorney may be able to help. In July, for instance, a federal judge in New York ruled that evidence gathered using a StingRay requires a search warrant.

In Manhattan, U.S. District Judge William Pauley ruled that police departments may not secretly use a StingRay to turn your cell phone into a tracking device – unless they’ve obtained a warrant. The judge found that the use of a StingRay device without a search warrant violates the constitutional right guaranteed by the Constitution’s Fourth Amendment to be free from unreasonable searches and seizures.


A StingRay can locate a specific cell phone with remarkable precision by gathering data from all of the wireless devices in the general area of a search. StingRay devices have been used by federal law enforcement since the 1990s, and their use by state and local police agencies has also been quite extensive. In 2014, police in Florida said that they have used similar devices at least two hundred times since 2010 without disclosures or warrants. The American Civil Liberties Union reports that at least 66 police agencies in 24 states and the District of Columbia own StingRays, and that other agencies have probably purchased the device without public disclosure.


The use of StingRay devices by local police agencies has frequently been funded by anti-terror grants from the Department of Homeland Security. The Los Angeles Police Department used such a grant in 2006 to purchase a StingRay for “regional terrorism investigations.” However, according to the Electronic Frontier Foundation, the “LAPD has been using it for just about any investigation imaginable.” In 2015, the Baltimore Sun reported that Baltimore police have used a StingRay device more than 4,300 times. Some states like Oklahoma have different statistics, but a Oklahoma criminal defense attorney can help.

While judges have repressed StingRay-related evidence in a number of criminal trials, according to Reuters, the ruling by Judge Pauley is the first time a federal judge has insisted that a warrant must be obtained before a StingRay can be used. The judge ruled that the Drug Enforcement Administration violated a defendant’s constitutional rights when agents used a StingRay without a warrant to follow the defendant to his home and arrest him. Judge Pauley wrote, “Absent a search warrant; the government may not turn a citizen’s cell phone into a tracking device.”


A person’s location does not seem important these days. In fact, we want others to know where we are – that’s why we tell our friends on Facebook when we’re at a great concert, restaurant, or attraction. The new “Pokemon Go” craze has people giving out so many details regarding their location that police departments are asking players to be more careful about disclosing personal information to strangers. But do we really want the state – or anyone else – to know precisely where we are at every moment of every day? Don’t we still retain the right to “get away from it all” sometimes, to not be bothered, to be where we can’t be found?

Since the NSA and other surveillance disclosures of 2013, the right to privacy has been a subject of international debate, and frankly, the right has come under attack. Using the justification of a “war” on terror, the NSA, CIA, and others have engaged in unprecedented surveillance activities around the globe. In the 21st century, there’s genuine concern regarding whether or not a right to privacy can survive alongside the ability that governments now have to access and analyze every detail of our lives.

In the Universal Declaration of Human Rights, adopted by the United Nations General Assembly in 1948, a right to privacy is explicit. Article 12 of the Declaration states: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.”



The Fourth Amendment to the United States Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Thus, although the U.S. Constitution does not explicitly set forth a right to privacy, the Supreme Court has found that the “right of the people to be secure” is, in fact, a right to privacy against governmental intrusion. Under the Fourth Amendment, law enforcement officers must obtain written permission from a court before they may lawfully search and seize evidence of criminal activity. A court grants permission by issuing a warrant.


Anyone who is accused of a crime on the basis of evidence gathered by surveillance technology, including a StingRay, will need an aggressive defense attorney who will demand complete information from the prosecution about the surveillance. In the state of New York, if a warrant was not properly obtained or if the police violated your rights in any way, an experienced Westchester County criminal defense attorney can probably use the misconduct by the police to your advantage. Judges in New York and across the country are closely scrutinizing the activities of police departments and upholding your right to privacy – even in this age of surveillance.

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