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Legal Myths & Reality

January, 2021: This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

Please note: Senator Sam Ervin, chair of the Senate Select Committee on Watergate in the preface to their report pointed out that the law is not self-executing. It must be executed by humans. And therefore, it must not be in the hands of those who are not faithful to it.

MYTH: When a teenager commits a crime, it is right, proper, and legal that the conviction should always remain on the criminal’s record. When it is a serious crime, the teen must not receive special treatment because of age.

REALITY: Science teaches us that the frontal brain lobe, the reasoning part of the brain, does not fully mature until age 25. This part of the human brain permits the use of thinking skills like the capacity to plan, organize, self-monitor and control one’s responses to people and events.

Our legislators usually try very hard to develop laws that mirror current scientific research and findings. In October, 2018, an updated New York State youthful offender (YO) law went into effect. This law allowed judges to grant youthful offender status to teens at sentencing, so that later the judge could seal the teen’s criminal record, and the record would not be accessible for most purposes.

This law did not apply in cases of VIOLENT CRIMES. In 2019, a judge wrote an important decision on this topic. He wrote that the law did not permit him to grant YO status and seal the teen’s record because the charge was second degree robbery, a violent felony, committed when the teen was 16 years old. The judge urged the Legislature to change the law. Of course, no one condones the acts of the teen, or other teens, in these circumstances. However, this teen and others like her, could never move past their youthful mistakes. They could not live lives useful to society and they were forced to constantly repay their debt to society. This had racial, educational and economic impact. Judges, who come to know a teen and the circumstances of the teen’s life and crime, had tied hands in helping to solve the problem of the teen’s behavior.

In November, 2021, New York Governor Kathy Hochul signed a new law into effect. Judges and those who work with teen offenders applaud the law. Now if a teen has been convicted of a major crime, and is otherwise generally eligible, the teen may reapply for youthful offender status and successfully seek to have the criminal record sealed. If the New Yorker was 19 years old or younger at the time of the violent crime and can explain what they did at the time of the commission of the crime, and show a period of success in the community, and especially has not committed any further crime, then the outcome may be helpful to the teen.

If the judge is satisfied, then the judge may grant the status and seal the record. This gives judges much more discretion to do as the judge thinks appropriate, after consultation with probation officers, police officers, parents, social workers and others. It also opens up the world of employment, education, housing rental and many other avenues to the convicted so that the teen, now an adult, can have a meaningful life and contribute to society.

MYTH: Playing fantasy sports is legal in New York State.

REALITY: In the world of fantasy sports, a person selects a real-life sports team and athletes and competes based on how well their chosen team performs. A case before New York State’s highest court, the Court of Appeals, has been argued once and then ordered for re-argument. This suggests that the 6 justices cannot agree on this issue and may be deadlocked over whether fantasy sports breach an anti-gambling section of the New York State Constitution, and therefore are illegal. In 2016, a new law outlined what safeguards must be in place in order to make the fantasy sports business legal in New York State. The new law set up registration and taxation of fantasy sports. The pending lawsuit should determine the legality of the fantasy sports laws.

The deadlock among the justices may be broken when the number of justices is increased from 6 to 7, making an odd number of justices who cannot then deadlock. Much in this area of law depends on who the Governor chooses to make up the full complement of the Court of Appeals (7 justices). Then we may have an opinion on the legality of the fantasy sports business, although the justices may still be divided, but not deadlocked.

MYTH: Once you have a criminal record, you have it forever.

REALITY: This might generally be true, unless the law changes after your conviction! In September, 2021, New York State made some marijuana use and possession legal. Since then, 198,000 records have been automatically deleted and another 203,000 ae in the process of being deleted. Those who may benefit from this automatic process are those who were convicted of possession of less than a pound of marijuana or distribution of less than 25 grams. This means the convictions are void, and will no longer show up in background checks. An eligible person can also apply to a court to have the expunged records completely destroyed. Officials expect that when the expungements are completed, more than 400,000 convicted New Yorkers will have records that do not reflect a possession or use of marijuana. This number shows how pervasive such use was.

This process is not always easy or automatic. If one was convicted, for example, of a marijuana offense together with a non-drug charge, like assault, then the record remains intact, and can be removed only by a judge. New Jersey is holding expungement clinics to help those who have more difficult cases and need help to make sure that the record is property expunged.

The law means now that it will be easier for appropriate people to find employment, become a foster parent, work in the child-care field, seek higher education, drive trucks, maintain custody of children, or lease an apartment, among other things. The principle is that no one should have a record for the same activity that is now legal, and where businesses are making money.

Attention to legal myths is not wrong. It can be a starting point for developing an interest in the law. However, if specific legal issues are important in your life, for instance, regarding custody of 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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