NY Criminal Defense Lawyers https://nycriminallawyers.pro New York Criminal Defense Lawyer Evan Hughes Wed, 13 Nov 2019 17:25:32 +0000 en-US hourly 1 https://wordpress.org/?v=5.7.13 The First Step Act: A Positive Step Towards Criminal Justice Reform https://nycriminallawyers.pro/the-first-step-act-a-positive-step-towards-criminal-justice-reform/ Tue, 27 Aug 2019 20:28:54 +0000 https://www.philadelphiacriminallawyers.pro/?p=1940 The post The First Step Act: A Positive Step Towards Criminal Justice Reform appeared first on NY Criminal Defense Lawyers.

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The First Step Act: A Positive Step Towards Criminal Justice Reform

The First Step Act, a criminal justice reform law passed earlier this year, allows thousands of incarcerated individuals to work towards an earlier release from prison and could ease future prison sentences. This Act, passing with huge support in both the House and Senate, is effectively the most significant criminal justice reform legislation to pass at the federal level in years.

The First Step Act states that its purpose is “to provide for programs to help reduce the risk that prisoners will recidivate upon release from prison.” Major provisions of the First Step Act include a number of reforms that could drastically alter the sentencing process at the federal level. One major provision makes the reforms enacted by the Fair Sentencing Act of 2010 retroactive, in order to reduce the disparity between crack cocaine and powder cocaine, affecting nearly 2,600 federal inmates. In addition, the legislation takes steps to ease mandatory minimum sentences by expanding the methods through which judges can avoid implementing mandatory minimum sentences, easing the federal “three strikes rule“, and restricting the practice of adding gun charges against drug offenders. Through legislating the procedure surrounding sentencing, the First Step Act works to help defendants who may be facing substantial jail time.

Additionally, this Act increases “good time” credits that inmates can earn and allows inmates to get more “earned time” credits through participating in vocational and rehabilitative programs. “Good time” credits previously allowed inmates who avoid disciplinary action against them to get credits of up to 47 days per year incarcerated to shorten their prison sentence. The First Step Act increases the cap to 54 days, and applies retroactively, allowing some prisoners to qualify for earlier release. Additionally, the law incorporates educational, rehabilitative, and other programs as a way for inmates to get such “earned time” credits, which allow inmates to be released earlier to halfway houses or home confinement.

Beyond aiming to ease high sentences and lessen recidivism rates, the law also aims to improve conditions in federal detention, such as prohibiting prisons from shackling women during childbirth and attempting to establish requirements to place federal inmates in prisons closer to their families.

While the First Step Act appears to meet its aims regarding easing high sentences, there is still dispute regarding the racial and class disparities perpetuated through the algorithms used, as well as the excluded classes of inmates, particularly regarding undocumented immigrants and inmates convicted of certain high-level offenses. The public may have to take a wait and see approach to fully understand the effects that the First Step Act will have on criminal justice reform as a whole—however, supporters of the act view this law as “one step closer to justice and relief for nearly 200,000 people in federal prisons and their families.” 

To read the full text of the First Step Act, please visit:

https://www.congress.gov/bill/115th-congress/house-bill/5682

If you face criminal charges involving incarceration and have questions about the sentencing process, or any other criminal or immigration matters, contact Hughes Law at (215) 454-6680.


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Beyond Borders with Nicole Ramos, Co-Hosted by Hughes Campos and Al Otro Lado https://nycriminallawyers.pro/beyond-borders/ Fri, 24 May 2019 15:17:04 +0000 https://www.philadelphiacriminallawyers.pro/?p=1831 The post Beyond Borders with Nicole Ramos, Co-Hosted by Hughes Campos and Al Otro Lado appeared first on NY Criminal Defense Lawyers.

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Beyond Borders with Nicole Ramos, Co-Hosted by Hughes Campos and Al Otro Lado

Recently, Hughes Campos LLC co-hosted a fundraiser for Al Otro Lado, a bi-national, direct legal services organization serving indigent deportees, migrants, and refugees, including asylum seekers on the U.S.-Mexico border. This event took place at the Kimpton Hotel Monaco New York and included prominent advocates for justice, such as attorneys Evan T.L. Hughes and Jose C. Campos, as well as Democratic Candidate for New York City Counsel At-Large, Fernando Treviño-Martinez.

Jose C. Campos, Partner at Hughes Campos LLC, is a long time supporter and volunteer with the Border Rights Project. Mr. Campos provided an introduction for Nicole Ramos, Esq., the Refugee Program Director of Al Otro Lado.

Ms. Ramos, in her capacity as Director of the Border Rights Project, works with asylum seekers in Tijuana, Mexico who are attempting to present themselves to U.S authorities. In addition to these direct services the Border Rights Project provides, Ms. Ramos also directs broader legislative, media, and legal advocacy efforts directed at challenging the systemic human rights violations committed by state actors at the U.S. border. Aside from her role as director, Ms. Ramos provides on-the-ground technical assistance, conducts country conditions research, and provides expert declarations to U.S. attorneys with case needs in Mexico.

According to the United Nations 1951 Convention, a refugee is a person who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country.” Congress adopted this definition into U.S. Immigration Law in its Refugee Act of 1980.

Through a conversation with Ms. Ramos, those in attendance heard first-hand about the rampant and wide-spread human rights violations occurring at the U.S.-Mexico border and the tragedies that many refugees regularly face in contravention with their status as legal asylum seekers. Ms. Ramos explained: “Now, more than ever, the protection of human rights at the U.S.-Mexico border is a critical mission as the United States government seeks to obliterate the right to seek asylum, and each day brings new reports of the multitude of ways that U.S. Customs and Border Protection officers violate the rights of asylum seekers at the U.S. port of entry and those in their custody.” Ms. Ramos spoke about the systemic barriers put in place, particularly waiting periods which leave asylum seekers from South America stranded in Tijuana for hours or days until they are able to present themselves. She also spoke about instances of Border Patrol officers dismissing legal asylum seekers, leaving them without recourse to present themselves to U.S. officials through the appropriate channels, and other violations of asylum law in practice.

Beyond the heartbreaking experiences of asylum seekers painted for those in attendance, Ms. Ramos recognized and thanked the other Program Directors, volunteers, and supporters nationwide.

To learn more about Al Otro Lado or find out how you can volunteer, please visit their website.

If you have concerns about your immigration status, or any other immigration matters, contact the immigration lawyers at Hughes Law at (215) 454-6680.


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Refusal to File a Notice of Appeal Creates a Presumption of Prejudice In Attorney Ineffectiveness Claim https://nycriminallawyers.pro/refusal-to-file-a-notice-of-appeal-creates-a-presumption-of-prejudice-in-attorney-ineffectiveness-claim/ Thu, 09 May 2019 18:50:30 +0000 https://www.philadelphiacriminallawyers.pro/?p=1804 The post Refusal to File a Notice of Appeal Creates a Presumption of Prejudice In Attorney Ineffectiveness Claim appeared first on NY Criminal Defense Lawyers.

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Refusal to File a Notice of Appeal Creates a Presumption of Prejudice In Attorney Ineffectiveness Claim

A recent opinion by the Supreme Court held that a defendant who lost a chance at an appeal because of their attorney’s ineffectiveness should be presumed to have been harmed by the attorney’s actions “regardless of whether the defendant has signed an appeal waiver.” See Garza v. Idaho.

In claiming ineffective assistance of counsel, or in proving that a defendant was denied their constitutional right to competent counsel because of their attorney’s ineffectiveness, the defendant must apply the test in Strickland v. Washington. The Strickland test prongs include: (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) that any such deficiency was “prejudicial to the defense.” In 2000, the Supreme Court found in Roe v. Flores-Ortega that “prejudice is presumed” in “certain Sixth Amendment contexts,” such as “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.”

More recently, the Supreme Court decided Garza v. Idaho on February 27, 2019, where defendant Garza signed two plea agreements for state criminal charges, each stating that he waived his right to appeal. After his sentencing hearing, Garza informed his attorney that he wanted to appeal. Garza’s attorney refused. After the time period for Garza’s notice of appeal lapsed, he sought state post conviction relief, through stating that his attorney had failed to file a notice of appeal, and as such his attorney’s representation was ineffective.

At the stage where a party is filing a notice of appeal, the actual claims of that appeal are likely to be unknown, or not very well defined. A notice of appeal merely informs the court and opposing party of a likely appeal, but it does not specify which claims will be brought up nor does it necessarily breach a plea agreement. Additionally, appeal waivers do not serve as an absolute bar to all appellate claims, as there are some claims that cannot be waived or are not considered within the plea agreement. Further, “ultimate authority” to decide whether to pursue an appeal belongs to the accused, not their attorney. See Jones v. Barnes.

Analysis under Flores-Ortega reveals that because Garza wished to appeal and the attorney did not file a notice of appeal within the appropriate time that “the accused [was] denied counsel at a critical stage” and the attorney’s deficiency forfeited the “appellate proceeding altogether.” In situations like this, Flores-Ortega reasons that a presumption of prejudice applies in the second prong of Strickland v. Washington for a claim of ineffective assistance of counsel. The new holding in Garza v. Idaho, extend to include situations where the defendant signed an appellate waiver, with the Supreme Court stating that a notice of appeal could lead to an appeal of issues beyond the waiver’s scope. As a result of attorney refusal to file a notice of appeal, there is a presumption that the lawyer’s deficiency is prejudicial to the defense.

To read Garza v. Idaho in full, see:
https://www.supremecourt.gov/opinions/18pdf/17-1026_2c83.pdf

If you have signed a plea agreement or appellate waiver, and have questions about your appellate rights, or any other criminal or immigration matters, contact Hughes Law. at (215) 454-6680.


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Child Erotica Does Not Constitute Probable Cause for Child Pornography https://nycriminallawyers.pro/child-erotica-does-not-constitute-probable-cause-for-child-pornography/ Tue, 26 Mar 2019 16:09:58 +0000 https://www.philadelphiacriminallawyers.pro/?p=1725 The post Child Erotica Does Not Constitute Probable Cause for Child Pornography appeared first on NY Criminal Defense Lawyers.

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Child Erotica Does Not Constitute Probable Cause for Child Pornography

The Fourth Amendment is known colloquially for its prohibition on search and seizure absent a warrant. This Amendment also provides that, “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.” In finding probable cause, an issuing judge must have more evidence than mere suspicion, but less evidence than what is necessary to convict. Basically, probable cause is met when the magistrate makes “a practical, common-sense decision that, given all the circumstances set forth in the affidavit there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Further, a suspect’s residence has the utmost protection from governmental intrusion as “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.”

If a warrant is executed without probable cause, that evidence will usually be suppressed. However, if that evidence is pursuant to “good-faith” on behalf of the executing officer, it can fall under the good-faith exception and still make it into evidence. The good-faith exception is a presumption that officers acted reasonably in executing the warrant.

In a 10th Circuit Appeals Court decision, U.S. v. Edwards, the court analyzed a search warrant affidavit on the basis of the defendant’s appeal of the lower court’s denial of his motion to suppress. Mr. Edwards used a website to upload and comment on suspicious, sexually suggestive images of a child that appeared to be ten years old. Officer Cornwell, the officer leading the investigation stated in his training and experience, “most individuals who collect child pornography are sexually attracted to children” and this who possess “child pornography” are “highly likely” also to possess legal “child erotica” and to participate in online forums “catering to their sexual preference for children thereby providing a sense of acceptance and validation within a community.” The government admitted that there was no observation of Mr. Edwards posting or viewing child pornography as described in the statute, which defines “child pornography” as:

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

The Appellate Court held that a defendant posting child erotica and/or comments suggesting a sexual attraction to a child did not establish the probable cause necessary to issue a warrant to search the defendant’s home for child pornography. The court explained that the fact that child pornography collectors also collected child erotica, participated in certain online forums relating to child erotica, and shared other common characteristics did not support an inverse conclusion that possessors of child erotica and participants in such online forums were also child pornography collectors.

Despite the court eventually affirming the district court’s denial because of the good faith exception to exclusion of evidence, the court held that a connection between behaviors of possessors of child pornography and possessors of child erotica did not establish probable cause to issue the warrant.

To read this case in full, see: https://www.leagle.com/decision/infco20151229050

If you have concerns about your Fourth Amendment rights, or any other criminal or immigration matters, contact Hughes Law at (215) 454-6680.


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Supreme Court Rules Government Must Obtain A Warrant to Collect Cellphone Location Data https://nycriminallawyers.pro/supreme-court-rules-government-must-obtain-a-warrant-to-collect-cellphone-location-data/ Tue, 26 Mar 2019 14:51:53 +0000 https://www.philadelphiacriminallawyers.pro/?p=1711 The post Supreme Court Rules Government Must Obtain A Warrant to Collect Cellphone Location Data appeared first on NY Criminal Defense Lawyers.

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Supreme Court: Government Must Obtain A Warrant to Collect Cellphone Location Data

The Supreme Court recently ruled 5-4 to protect “deeply revealing” records associated with cell-site location information (CSLI) by generally requiring the Government to obtain a warrant in order to collect location data about the customers of cellphone companies. In Carpenter v. United States, the defendant was accused of several counts of armed robbery at Radio Shacks and other stores in the Detroit area. Prosecutors relied on 127 days of records that placed Carpenter’s phone at 12,898 locations. These locations were provided by his cell phone company, which placed him in the area of the robberies when they took place. The Government acquired these records through a court order under the Stored Communications Act, where they only needed to prove reasonable grounds for believing that the records were “relevant and material to an ongoing investigation”—a much lower burden than the probable cause necessary to issue a warrant.

Old Supreme Court decisions, in considering digital information, relied on the third party doctrine, which states that a suspect has no reasonable expectation of privacy in information voluntarily turned over to a third party. In Smith v. Maryland (1979), the Supreme Court held that the defendant did not have an expectation of privacy in the numbers dialed from his landline phone and that this information could be used against him. However, Chief Justice Roberts wrote that the third party doctrine as applied to cell phones is of limited use in the age of digital data because of the “pervasive and insistent part of daily life” that cell phones and the services they provide have become. Carpenter v. United States (citing Riley v. California, which required a warrant for cell phone searches). Additionally, the Court notes that cell phones log CSLI, and store that data for five years, without any affirmative act by the user beyond turning on the device.

Chief Justice Roberts continued by stating that digital data in the form of CSLI can provide a comprehensive, detailed, and intrusive overview of private affairs, analogizing CSLI to GPS information, information held previously in United States v. Jones to require a warrant. “As with GPS information, the timestamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his ‘familial, political, professional, religious, and sexual associations.’” Carpenter v. United States (citing United States v. Jones).

In dissent, Justice Kennedy argued that the distinctions drawn by the majority “will frustrate principled application of the Fourth Amendment in many routine yet vital law enforcement operations… to help the Government develop probable cause to apprehend some of the nation’s most dangerous criminals.” Justice Alito opined that a “blizzard” of litigation will ensue from this decision and valuable investigative practices the Government relies on will no longer be legitimate.

Chief Justice Roberts countered the concerns of the dissenters by explaining that the CSLI technology allows wireless carriers currently to have the capability to pinpoint a cell phone location within 50 meters. While this decision issues a general requirement for a warrant in requesting CSLI, the decision makes exceptions for exigent circumstances, such as “the need to pursue a fleeing suspect, protect individuals who are threatened with imminent harm or prevent the imminent destruction of evidence.” The decision also limits the requirement to cases where the suspect has a legitimate privacy interest in records held by third parties.

To read this case in full, see: https://casetext.com/case/carpenter-v-united-states-67

If you have concerns about your Fourth Amendment rights, or any other criminal matters, contact our New York criminal lawyers at Hughes Law at (215) 454-6680.


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Pennsylvania Senate Bill 166 Signed Into Law https://nycriminallawyers.pro/pennsylvania-senate-bill-166-signed-into-law/ Wed, 24 Feb 2016 22:19:06 +0000 http://www.philadelphiacriminallawyers.pro/?p=426 The post Pennsylvania Senate Bill 166 Signed Into Law appeared first on NY Criminal Defense Lawyers.

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Pennsylvania Senate Bill 166 Signed Into Law

Governor Wolf recently signed an important new piece of legislation which will allow many individuals with prior convictions to have those convictions removed from their record. The new law, formerly known as Senate Bill 166, will allow individuals to petition the Court of Common Pleas where the conviction occurred to have the conviction sealed pursuant to an order of limited access.

The effect of this order will be to prohibit the disclosure of the conviction to anyone other than criminal justice agencies or state licensing boards. As a result, sealed convictions will no longer be available on the Administrative Office of Pennsylvania Courts’ public docket website which requires nothing more than an individual’s name to find their criminal record. Although not guaranteed, it will also make it far less likely that the conviction will show up on a routine background check. Further, the new law only allows criminal justice and state licensing agencies to ask about convictions subject to a limited access order.

The new bill makes those with a prior conviction for a non-violent ungraded, second degree, or third degree misdemeanor eligible for a limited access order if they did not incur any new arrests in the ten years following the misdemeanor conviction. This means that the bill will help those who otherwise have stayed out of trouble but may have one prior conviction on their record. It also means that the bill covers many offenses, including a number of first time narcotics offenses for which an individual was not able to obtain a diversionary program like ARD.

Prior to the enactment of Senate Bill 166, expungements were limited to convictions for summary offenses, juvenile adjudications, and arrests that did not result in conviction. The only other option for a person seeking to have a conviction removed from their record was to petition the Governor for a pardon, and pardons are extremely difficult to obtain. With the enactment of this important new legislation, many individuals with misdemeanor convictions will be able to have those convictions removed from their public records, and employers will no longer be allowed to ask about those convictions. This will make it far easier for someone with one older conviction to enter the work force.

If you have a summary conviction or a conviction for an ungraded, second degree, or third degree misdemeanor on your record, contact the criminal lawyers at Hughes Law now to discuss the possibility of an expungement or sealing of your record.


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The Use of Grand Juries in Police Brutality Cases https://nycriminallawyers.pro/use-grand-juries-police-brutality-cases/ Tue, 24 Feb 2015 21:01:54 +0000 http://www.philadelphiacriminallawyers.pro/?p=253 Are you a victim of police brutality?  Contact Evan Hughes & Staff today.

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Are you a victim of police brutality?  Contact Evan Hughes & Staff today.

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