The Buffalo New York Lawyer

DWI - Driving While Intoxicated

07/26/06 @ 12:17:55 pm by admin

When does Driving While Intoxicated become a class E Felony?

Driving While Intoxicated and Driving with Greater than .08 Percent Blood Alcohol Content are unclassified misdemeanors unless:

1) The driver of the vehicle has been convicted of Driving While Intoxicated, or Driving with Greater than .08 Percent Blood Alcohol Content, or Driving While Ability Impaired by Drugs within ten (10) years of the driver's most recent arrest; --OR---

2) The driver has been previously convicted of Vehicular Assault in the First or Second Degree, or Vehicular Manslaughter in the First Degree or Second Degree within the last ten (10) years.

What if the driver has more than one prior Driving While Intoxicated conviction in the last ten (10) years?

If the driver has two (2) or more prior convictions for Driving While Intoxicated, Vehicular Assault in the First or Second Degree, or Vehicular Manslaughter in the First Degree or Second Degree, in the last ten (10) years and is arrested again for Driving While Intoxicated, the driver will be charged with a class D felony.

What are the criminal penalties for a conviction of an E Felony DWI?

Assumptions

Offense: driving while impaired or intoxicated (E felony), in violation of VTL 1192(2-4), a class E felony

Age category: adult

Felony offender category: first felony offender (Penal Law 70.00)

Answer

The following assumes that the defendant was operating an ordinary motor vehicle rather than a special or commercial vehicle.

The sentence must include either a fine, or imprisonment, or both a fine and imprisonment. VTL 1193(1).

The sentencing possibilities are:

An indeterminate sentence of imprisonment having a maximum term of not less than 3 years and not more than 4 years, and a minimum term of not less than 1 year and not more than one-third of the maximum term. Penal Law 70.00. Thus, the least such sentence is 1 to 3 years, and the greatest such sentence is 1 and one-third to 4 years.

A definite sentence of imprisonment of up to 1 year, if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose an indeterminate or determinate sentence. Penal Law 60.01(3)(a) and 70.00(4).

Intermittent imprisonment for any term that could be imposed as a definite sentence, if the court is not imposing any other sentence of imprisonment upon the defendant at the same time, and if the defendant is not under any other sentence of imprisonment having a term in excess of 15 days imposed by any other court. Penal Law 60.01(2)(a)(ii) and 85.00.

Probation for 5 years if (i) institutional confinement for the term authorized by law is or may not be necessary for the protection of the public, (ii) the defendant is in need of guidance, training or other assistance which, in his case, can be administered through probation supervision, and (iii) such disposition is not inconsistent with the ends of justice. Penal Law 60.01(2)(a)(i) and 65.00. If the conditions of probation include a condition that the defendant not operate a motor vehicle or apply for a license to operate a motor vehicle during the period of the condition, then the commissioner of motor vehicles may not restore the defendant's license until the period of the condition has expired. VTL 1193(2)(e)(5).

Conditional discharge for 3 years, if the Court having regard to the nature and circumstances of the offense and to the history, character and condition of the defendant, is of the opinion that neither the public interest nor the ends of justice would be served by a sentence of imprisonment and that probation supervision is not appropriate. Penal Law 60.01(2)(a)(i) and 65.05. Because the crime is a felony, the court must set forth in the record the reasons for imposing a conditional discharge. Penal Law 65.05(1)(b).

Any sentence of probation or conditional discharge must be accompanied by a sentence to pay a fine. VTL 1193(1)(e).

A split sentence including both imprisonment and either 5 years of probation or 3 years of conditional discharge. The imprisonment may be either a definite sentence of imprisonment of up to 6 months, or intermittent imprisonment of up to 4 months. Penal Law 60.01(2)(d).

A fine of not less than 1,000 dollars nor more than 5,000 dollars. VTL 1193(1)(c)(i). A fine may be imposed by itself or in addition to imprisonment, probation, or conditional discharge. VTL 1193(1)(c)(i) and Penal Law 60.01(2)(c).

If a victim is seeking restitution or reparation, the court must consider ordering it, and if not ordered, the court must state its reasons on the record. If restitution is ordered, the amount will be increased by a 5 percent surcharge that goes to the collection agency. Penal Law 60.27(1); CPL 420.10(8).

The defendant must pay a mandatory surcharge of 250 dollars and a crime victim assistance fee of 20 dollars, unless restitution or reparation has been made, and in any event must pay a DWI-DWAI surcharge of 25 dollars. VTL 1809(1) & (6); VTL 1809-c(1).

The Court must revoke the defendant’s driver’s license, and may revoke his registration, for 1 year if the present crime was committed within 10 years of a previous conviction under subdivision 2, 3, or 4 of VTL 1192. VTL 1193(2)(b)(3).

If the defendant was under 21 when the offense was committed, his driver’s license must be revoked for one year, but if the defendant had previously been found to have consumed alcohol in violation of VTL 1192-a or had previously been convicted of, or adjudicated a youthful offender for, a VTL 1192 offense, then the revocation must be for one year or until the defendant reaches 21, whichever is longer. VTL 1193(2)(b)(6-7).

Upon sentencing, the court must issue an order revoking the license, and the defendant shall surrender the license to the court. The court may issue an order making the revocation effective twenty days after sentencing, if the defendant has not been convicted of any violation of VTL 1992 or of any violation of article 120 or 125 of the Penal Law within the preceding five years, and if the defendant was not charged with any such violation of the Penal Law in the present case. VTL 1193(2)(d).

The court may require the defendant, as a part of or as a condition of the sentence, to attend a single session conducted by a victims impact program concerning the impact of operating a motor vehicle while under the influence of alcohol or drugs. VTL 1193(1)(f).

Minimum additional penalties apply to persons who violate VTL 1192, subdivision (2) or (3), within 5 years after being convicted of either of those subdivisions.

If there was one such previous conviction within 5 years, then, in addition to any other penalties imposed, the sentence must include 5 days of imprisonment or 30 days of community service.

If there were two or more such previous convictions within 5 years, then, in addition to any other penalities imposed, the sentence must include 10 days of imprisonment or 60 days of community service.

In either case, the court must order installation of an ignition interlock device on each motor vehicle owned by the defendant, to remain installed during any period of license revocation required to be imposed, and, upon termination of the revocation period, for an additional period as determined by the court. Additionally, the court must order that such person receive an assessment of the degree of their alcohol abuse, and where the assessment indicates the need for treatment, the court is authorized to impose treatment as a condition of sentence. VTL 1193(1-a).

In addition to any other fines, fees, penalties and surcharges, any person convicted of violating any subdivision of VTL 1192 must pay a driver responsibility assessment of 250 dollars per year for three years. The Department of Motor Vehicles, not the Court, is responsible for notifying the defendant of this obligation and collecting payment. Failure to pay will result in suspension of the defendant's driver's license until payment is made. VTL 1199.

Need a DWI Lawyer?

If you need a DWI Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.

Last Will and Testament

07/05/06 @ 08:34:43 pm by admin

Although the preparation of a Last Will and Testament is important, most people fail to do it because they are too busy, think they don't own enough, or are unwilling to contemplate death.

Why should you prepare a will?

1. Make it easier on family.
2. Name who takes care of your children.
3. Prevent family battles.
4. State who gets your stuff.
5. Protect the family home or business.
6) Shed light on the need for estate planning

How long does it take to make a will?

Most wills can be completed with a phone call and a one hour visit to an attorney's office.

How much Does it Cost?

Costs:
Filing Fee: N/A or Free if filed with Erie County Surrogates Court

Attorney Fee:
Range $100.00 - $250.00 (depends on the circumstances).

Need a Last Will and Testament Lawyer?

If you need a Last Will and Testament Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.

Real Estate

07/05/06 @ 04:37:11 pm by admin

Home Ownership

One of the most important decisions people make is the purchase of real estate for the family home. Buying a home is often a consumer's biggest investment so it is important to do your homework before purchasing.

Many people do not realize that they are able to purchase a home. If you are considering a home purchase, be sure to investigate the available programs that may make it easier for you to purchase a home.

Buying a Home

Before making an offer on a house, homebuyers should take their entire situation into account. Buyers must consider whether they are ready to buy, how much they can afford, and what type of property will satisfy the family's needs. If you are married with children, be sure to investigate the schools in the area if your children will be attending public school.

Selling a Home

If you are selling a home you will generally sign a listing agreement with the listing broker. The agreement sets the listing term, the seller's preferred sales price, and the commission rate. Most of these conditions are negotiable, including the commission.

Selling a home takes considerable work and some decisions will need to be made after considering market conditions. A seller will need to decide whether to make repairs, or sell it as it stands. Keep in mind that a seller must make certain disclosures about the condition of the property in New York. A seller must also consider what personal property will be included in the sale, what is the appropriate asking price, and what is the lowest acceptable price.

Preparing the Offer

In determining an initial offer, a buyer should consider many factors such as the advertised price, the amount of the down payment, the amount of the monthly payments, and market conditions. The buyer must also consider whether the purchase is going to be contingent on the sale of a current home.

Contracts

The agreement to sell between a buyer and seller of real estate must be in writing. The terms of the purchase contract are typically negotiated through a series of offers and counteroffers until an agreement is reached.

Once a contract is executed, the buyer should be prepared to do an immediate home inspection, make a purchase money deposit, and complete the financing. The seller should be prepared to update the search and survey.

Need a Real Estate Lawyer?

If you need a Real Estate Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.

Personal Injury

07/05/06 @ 11:33:36 am by admin

If you or a family member have been injured or killed because of a construction accident, auto accident, motorcycle accident, boating accident, pedestrian accident, slip and fall, or any other accident, you may be entitled to compensation.

Construction Accidents

As you may already know, construction workers injured on the job in New York State enjoy special protection. The Labor Law of New York places a high degree of responsibility for work site safety on the owner of the construction site and the contractors doing the work.

The Labor Law ensures that workers will be compensated for injuries sustained from accidents involving a fall from an elevated height. Many of these falls are caused by poorly equipped job sites, equipment failure, or a failure to follow state and federal regulations.

If you have been injured on a work site you may be entitled to recover monetary damages for your injuries under labor law and worker’s compensation benefits.

Motor Vehicle Accidents

Although an injury from an automobile accident, motorcycle accident, boating accident, or pedestrian accident may not seem serious at first, the injury may get worse if left untreated. If you have been involved in a motor vehicle accident you need to obtain prompt medical attention and an attorney.

You need to seek the help of an attorney to secure your rights and to secure benefits under New York's "No-Fault" insurance law. No-Fault entitles you to compensation for the economic losses of a car accident, regardless of fault. No-Fault benefits pay for hospitalization, medical expenses, and lost wages up to fifty-thousand dollars ($50,000). In order to obtain no fault benefits, you must give notice to the insurance company within 30 days of the accident.

Slip and Fall Accidents

Slip and Fall accidents are accidents that occur when someone slips, trips or falls as a result of a dangerous condition on the premises of a property owner.

When a slip and fall injury occurs because of a dangerous condition on the property of another the property owner or business may be legally responsible. Property owners have a duty to keep their property safe and are responsible for injuries that occur because of known dangerous conditions on their property.

Wrongful Death

Wrongful death is a cause of action brought by family members against a negligent party for causing the death of a loved one. The purpose of a wrongful death case is to compensate the survivors for their loss. Compensation includes sorrow and mental anguish, loss of income, loss of protection, care, and assistance, and the expenses for the care, treatment, and hospitalization of the loved one that died.

How much does a personal injury or wrongful death case cost?

Attorney Fee:
Fee is one-third of the recovery (contingency fee).

Costs:
The expenses of the action depend on the circumstances and the lawyer is usually reimbursed from the proceeds of the action.

Need a Personal Injury or Wrongful Death Lawyer?

If you need a Personal Injury or Wrongful Death Lawyer please call the number listed above or click HERE to request a free consultation.

Name Change

07/04/06 @ 02:41:24 pm by admin

A person’s name is important because it is an integral part of self image and ancestry. Any New Yorker, however, may assume a different name, so long as it is not done to avoid financial obligations or to perpetrate a fraud.

The process to change a name in New York is relatively straightforward. First, a petition is filed with the Supreme Court requesting the name change. Second, if the court approves the change an Order will be issued to effect the change. Third, notice of the name change is published in a newspaper. Fourth, obtain a new birth certificate from vital records. Five, change your name on all official documents.

What if the name change is for a minor child?

When the change of a name is for a minor child (infant name change), the application for a name change must be brought by one or both of the minor’s parents. If the minor has two living parents and one parent does not join in the application, the non-petitioner parent must be served with reasonable notice of the application. If the non-petitioning parent objects to the child's name change, a hearing will be held to determine whether the change of the child's name is in the best interest of the child.

How much does it cost?

Estimated Costs:
$500.00 (index number, RJI, publication, certified copies)

Attorneys fee:
Range $500 to $1500.00 (depending on the circumstances)

Need a Name Change Lawyer?

If you need a Name Change Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.

Mechanic's Lien

07/04/06 @ 01:07:42 pm by admin

Although most contractors are aware that disputes with a homeowner can result in frustration, annoyance, and nonpayment, many contractors are unaware that they can file a lien against the homeowner's property.

Such a lien, called a mechanic's lien in New York, can make it hard or impossible for a homeowner to sell the property while the lien is in place and may even enable the contractor to institute a foreclosure proceeding against the homeowner.

When should a contractor file a mechanics lien?

A mechanic's lien must be filed within eight (8) months from the last date labor or materials were provided; four (4) months if the property is a single family home.

What if the general contractor was paid?

If a subcontractor files a mechanic's lien against the homeowner and the general contractor had been paid, the homeowner will have a defense against the mechanic's lien. The solution is for the subcontractor to file a mechanic's lien while doing the work or as soon as a problem is detected.

What kind of improvements must be made before a mechanic's lien can be filed?

The improvements must be permanent in nature. A mechanic's lien will not attach where materials are supplied for a temporary improvement.

How long is the mechanic's lien effective?

A New York mechanic's lien is effective for one year from the date of filing, unless an action is commenced during that period. The lien can otherwise be continued by a court order.

How much does it cost?

Costs:
Filing Fee: $35.00

Attorney Fee: $365.00

Need a Mechanic's Lien Lawyer?

If you need a Mechanic's Lien Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.

Living Will

07/03/06 @ 10:19:27 am by admin

Why do I need a Living Will?

The Terry Schiavo case demonstrates that the failure to execute a living will and health care proxy, can break families apart, cause long-lasting feuds, cost hundreds of thousands of dollars, involve legal wrangles that last for years and mean quite literally the difference between life and death.

Advances in medical technology have caused some patients to be kept alive by artificial means. Sometimes a patient may desire to undergo such treatment because it is thought to be a temporary measure hopefully leading to the restoration of health. In other circumstances such treatment may be undesirable because it only prolongs the inevitable death.

Who Decides?

Each person by law has the personal right to decide whether to institute, continue or terminate such treatment, so long as he or she is competent and can be consulted. When a patient however, has lost the capacity to communicate, the situation is dire without a Living Will.

Although New York has no living will statute, state and federal case law establishes the right for a patient's wishes to be respected, so long as those wishes are known. New York law requires clear and convincing evidence of what the patient would want under the circumstances. The Living Will therefore provides the vehicle for making the patient's wishes known.

How much does it cost?

Costs:
Filing Fee: N/A

Attorney Fee:
Range $75.00 - $150.00 - (depends on the circumstances).

Do it Yourself: $29.00 - Click Here

Need a Living Will Lawyer?

If you need a Living Will Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.

Health Care Proxy

07/03/06 @ 09:45:45 am by admin

Why do I need a Healthcare Proxy?

The Terry Schiavo case demonstrates that the failure to execute a health care proxy, and living will, can break families apart, cause long-lasting feuds, cost hundreds of thousands of dollars, involve legal wrangles that last for years and mean quite literally the difference between life and death.

A Health Care Proxy allows you to appoint someone you trust to make health care decisions for you if you lose the ability to make decisions yourself. The agent does not have authority until such time as you are unable to make decisions.

In appointing a health care agent, you can make sure that health care providers follow your wishes with respect to treatment. You may give the person you select as your health care agent as little or as much authority as you want. You may allow your agent to make all health care decisions or only certain ones. You may also require your agent to follow the terms set forth in your living will with respect to the extent of treatment.

How much does it cost?

Costs:
Filing Fee: N/A

Attorney Fee:
Range $75.00 - $150.00 - (depends on the circumstances).

Do it Yourself: $29.00 - Click Here

Need a Health Care Proxy Lawyer?

If you need a Health Care Proxy Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.

Title VII of the Civil Rights Act of 1964

07/02/06 @ 07:29:06 pm by admin

Title VII protects people against employment discrimination based on race, color, national origin, sex, and religion. Title VII only applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies, labor organizations, and the federal government.

People may not be denied equal employment opportunity because they are a member of a particular racial group or perceived racial group or because of race based characteristics or because of a marriage to or association with someone of a particular race. Title VII also prohibits employment decisions based on stereotypes and assumptions about abilities, traits, or the performance of individuals of certain racial groups.

It is unlawful to discriminate based on race in recruiting, hiring, promotion, transfer, work assignments, performance evaluations, the work environment, job training, discipline and discharge, wages and benefits, or any other term, condition, or privilege of employment.

Title VII prohibits not only intentional discrimination, but also neutral job policies that disproportionately affect persons of a certain race or color and that are not related to the job and the needs of the business.

Title VII protects employees from harassment that leads to a hostile work environment by prohibiting offensive conduct such as racial or ethnic slurs, racial jokes, derogatory comments, and other verbal or physical conduct based on an individual's race or color. The conduct has to be unwelcome and offensive, and has to be severe or pervasive. Employers are required to take appropriate steps to prevent and correct unlawful harassment. Likewise, employees are responsible for reporting harassment at an early stage to prevent its escalation.

Employees also have a right to be free from retaliation for their opposition to discrimination or their participation in an EEOC proceeding by filing a charge, testifying, assisting, or otherwise participating in an agency proceeding.

Need a Discrimination Lawyer?

If you need a Discrimination Lawyer please call (716)-656-7676 for a free phone counsultation or HERE for a free web consultation. The first consultation is always free, and you will always speak directly to Stephen K. Underwood.