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Legal Briefs, Legal Myths v. Reality for January

by Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

MYTH: New York State laws for crimes are static and rarely changing. REALITY: New York State is constantly refining criminal and other laws.

2019 was a very significant year for change in the area of criminal laws. Some changes are made to reflect current knowledge in science, some as a result of court cases, some reflect experimental laws and legal styles in other states and the Federal system, and some because of financial considerations. Some of the changes or new laws are:

1. A new law addresses sharing of sexually explicit photographs without the subject’s permission, usually on the internet. The images are commonly called “revenge porn”.

These images are shared after an intimate relationship has ended. The accused’s purpose in sharing, which must be proven, is that the accused intended to cause harm to the emotional, financial or physical welfare of another person (the subject of the images).

The prosecution also must prove that the image was shared without the consent of the person in the image, and that the accused knew or reasonably should have known that the victim did not want the images shared. This criminal law is very important in the age of social media. However, some say more important than the criminal ramifications is the victim’s right to sue the accused for money damages for up to three years after the image is shared, or up to one year after the sharing is discovered. The victim can choose the criminal prosecution, a civil lawsuit for money damages, or both!

2. A refinement of an existing law is “Staging a Motor Vehicle Accident”. This law is aimed at criminals who intentionally cause a motor vehicle collision in order to file a false insurance claim.

Under this revised law the lowest level E felony is raised to a higher level for punishment if someone involved is injured or dies.

3. Some new laws are extensions of laws that apply in other parts of New York State. A new law provides protections for tenants who have been harassed by a landlord in order to force the tenant to vacate. This extends the previous law for New York City to the entire State.

4. Some new laws are corrective. It is now lawful to possess a gravity knife. Such weapons were previously illegal to possess. This is based on the Federal Court ruling that the State ban was unconstitutional under the U.S. Constitution because of the way it was enforced.

5. It is now legal to possess small amounts of marijuana, and there is no law against smoking marijuana in public. If one has been convicted of a marijuana crime, that person can ask a court to wipe the conviction from the records.

6. Certain crimes that have to do with a victim’s status have been expanded. Gender identity or expression is now protected, including status as transgender.

7. Selling cigarettes to a person less than 21 years old is now a crime. The previous limit was 18 years of age.

8. The statute of limitations (the period after which an accused cannot be charged and convicted) on all sex crimes now does not begin to run until the victim reaches 23 years of age, instead of 18 years. The statute of limitations for rape is now 20 years. Incest has no such limitation so that a perpetrator can be called to answer at any time.

9. A person accused of murder now can no longer claim that he/she suffered from emotional distress based on the victim’s sexual orientation, sex or gender. It does away with the opportunity to claim the “gay panic” defense. This defense was used to excuse murder if the accused can prove that (s)he panicked on finding that a victim was gay or transgender and that the accused felt threatened in some fashion by the victim’s status as gay or transgender.

10. A loophole existed that protected a defendant convicted of a federal crime, and later pardoned by the U.S. President. The loophole provided that the federally convicted defendant could not be charged with a state crime. Now that loophole is closed so that even a pardon, reprieve or other clemency from the President will not protect a defendant from prosecution by New York State for a New York crime committed in this State. This has not yet been signed by the Governor.

11. New York State now has a red flag bill. It is called the “extreme risk protection order” bill.

A court can issue a special order so that police can temporarily confiscate the accused’s firearms if the judge finds after a hearing that the accused is a danger to themselves or others. 17 other states have similar laws, but New York State is the only state that permits school officials to ask a court to intervene in these cases. There are strict guidelines for courts to follow to insure the accused’s rights. If all rules are followed properly, the order can last up to one year during which time the accused cannot buy or possess any firearms.

12. A person cannot possess any knife that cannot be detected by a metal detector. One also cannot possess a rapid-fire modification device used to speed up discharging certain weapons.

13. Children have been tragically killed because they had access to their relatives’ guns. Now the adult can be charged criminally and punished on conviction for failing to store a gun safely and the gun owner/possessor lives with anyone under age 16. There is an exception. If the under 16 year old has a hunting license or is supervised by an adult, then the child may possess the weapon.

14. A gun seller is now allowed up to thirty calendar days to make a national background check of the buyer in order to sell a firearm to that person. This is designed to protect the seller from liability in the event the gun is used to harm someone. Mental health records of another state can be accessed.

15. Teachers are not permitted to be armed while in school.

16. Sentences for a victim of domestic violence may be reduced if the victim has been punished for protecting him/herself from an abuser’s violence.

17. Previously a penalty if an accused was convicted of a misdemeanor was up to one year in jail maximum. This time period has been changed so that it is now up to 364 days maximum in jail so that Federal immigration authorities may not pursue deportation.

The sentence that would permit incarceration as a basis for deportation is one year. If a defendant has been convicted already and sentenced to one year, that person can ask a court to reduce the sentence to 364 days, one day short of the deportation period. Thereby the convicted person may not be deported solely because of the incarceration.

Giving attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths. This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.


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