Photographic evidence may assist you in proving your injuries, how the accident occurred, the severity of the impact, and who is at fault. Frequently, parties will disagree over the facts of an accident. Photos that support your recollection are more powerful than a he-said-she-said argument.
Being involved in a car accident is a traumatic experience, causing you to forget important details. Taking photos of your car after an accident can help trigger your memory of some of the smaller details that can easily escape your mind. Referring back to photos can support in your claim when speaking to attorneys, insurance companies, or the jury.
Timing is everything:
The strongest photos are taken within 48 hours of the accident. Even sooner is better. However, if you are injured and unable to take photos, as soon as you are able to obtain them is fine. You do not have to be the individual who snaps the photos. A family member, friend, witness, mechanic, or attorney may take them for you.
The clearer and more complete the series of photos of your car are, the stronger your proof will be. Often times, by the time individuals hire an attorney, the window of opportunity to take photos has ended. As a result, the number of photos, angle of the shots, and identification photos are usually incomplete. Photos from a witness, who took a photo of your vehicle at the scene of the accident is extremely helpful. However, those photos frequently do not reveal the entire extent of the damage. Additionally, when people do take photos of their vehicle, too commonly, those photos don’t capture the state of the whole vehicle. Multiple photos of a dent, without all sides of the vehicle may not be the most helpful.
If you are physically able to take photos of your vehicle at the scene, it is highly recommended to do so. The closer in time the photos were taken after the scene, the stronger your photographic evidence. The time frame from when the collision occurred to when the police arrive is usually short. Within this time, if you are able to safely do so, take as many pictures of the overall scene, with the involved vehicles in sight, as you possibly can. Because of safety precautions, police officers tend to the vehicles out of the roadway quickly. However, capturing the scene unaltered before the police arrive, can be of benefit to you.
How to take photos:
Your photos should be clear, providing an accurate representation of your vehicle and the scene of the accident. Be aware of sunlight and other weather conditions that can affect the way your photos turn out. Experimenting with different flash intensities can also affect the way your photos look. It’s best to take some both with and without a flash, to prevent any reflections that may alter what your car looks like.
The device you use does not matter, so long as you are able to capture the damage accurately. Your phone is perfectly acceptable for taking photos, so long as the damage and vehicle are visible.
Accurately capturing the damage is important. In photos, damage may look insignificant or smaller than in actuality. The best way to ensure the damage shown is in scale is to take photos close ups and distant photos. Take as many photos as you need to in order to show the extent of the damage.
What to include in your photos:
You should take at least 5 photos in addition to the portions of your vehicle that are damaged.
- The driver’s side
- The passengers’ side
- The front view, including license plate
- The rear view, including license plate
- A close-up of the registration and inspection sticker on the windshield.
You should take photos of your car both up close and from a few feet away. Take photos of every angle of your vehicle, without cutting a portion of that angle out. First, take photos of every area where there is damage as a result of the accident. Take photos from a few feet away, as to depict the damage in relation to the entire vehicle. Then take photos close up, capturing the details in the damage. Take as many as you need to show the damage accurately to someone who will be unable to inspect the vehicle later on. Next, take a photo of each side of the vehicle. Take one of the driver’s side, one of the passenger’s side, and the rear and front of the car, including the license plates. If your license plates are bent or broken, do not try to fix them to make the plate legible, as showing what damage occurred is your main goal. Take a picture of your registration and inspection stickers on your front windshield, so that the information on them can be read. If the window and stickers are destroyed, take a photo that shows the entire windshield and another up close, showing as much information as possible. Be sure your reflection is not seen in any of the photos.
If you are able, take pictures of more than just your vehicle. If safe, take pictures of the scene, the property damage left at the incident. Demonstrating any property damage, skid marks in the road, vehicle parts, shattered glass, and other debris in your photo is crucial. Capturing the overall scene is significant in that it paints a picture of how the accident occurred.
Taking a photo from far away to include things like streetlights, stop signs, intersections or other buildings, may give a better image as to what exactly happened. The overall environment of the accident plays a big role. Things like weather conditions and the time of day can be a significant factor in determining your claim. Photos that are marked with the date and time of the accident can be beneficial.
If you are able to immediately after the accident, you should take photos of the other vehicles involved in the accident. Do not attempt to find the other vehicles at a later date to take photographs.
Having the proper evidence from your car accident may be require in litigating your personal injury claim. Contacting the Law Offices of Jennifer G. Tocci, P.C., as soon as possible after your accident gives us a better opportunity to gather evidence before it is gone forever. We offer free consultations and full-service personal injury legal representation. Schedule your appointment by calling (631) 343-7676.
Memorial Day Weekend, the unofficial start of the summer, is a time for fun, family, friends, and food. But after barbequing and beer, your ride home is the most dangerous time to be on the road compared to any other time of the year. Out of all the holidays, the highest number of fatal crashes typically occur during Memorial Day Weekend. Whether you operate a vehicle when you shouldn’t, or you are on the roadway at all, you could be affected by an impaired driver.
Number of fatal accidents increases during Memorial Day Weekend:
Nassau and Suffolk counties have witnessed an increase in both the number of car accidents and the number of fatal car accidents during Memorial Day Weekend. Naturally, when there is an increase in number people of drinking and amount of alcohol being consumed, there will be an increase in intoxicated and impaired drivers on the roads. Drowsy driving during the holiday weekend may also increase the number of impaired drivers on the road. Even if you make the appropriate arrangements for alternative transportation, you’re sharing the roadway with more impaired drivers than usual.
Drinking and impaired driving:
Never drink and drive. Always be completely sober when operating a vehicle- this includes smoking marijuana and consuming other substances that may impair your ability to drive. Driving while intoxicated (or impaired by any substance) is a crime. Besides the fact that you may seriously injure yourself or others as a result of driving under the influence of alcohol, you could also be arrested. In the past, Suffolk County and Nassau County police departments have increased the number of patrol vehicles and DWI checkpoints to promptly remove drunk drivers from the roadways. If you drink and drive, there is a strong chance you will be pulled over. And if you are pulled over while intoxicated, you will be arrested. Being arrested for intoxicated driving or impaired driving will surely ruin the Memorial Day Weekend fun. You will be held overnight at the police station and be transported to court the next morning. In the case of a holiday weekend, you could find yourself stuck in jail for an extended period, waiting for a judge to take the bench. Once you’ve seen the judge, you will likely have additional court appearances, lose your driver’s license, and be subject to fines and fees. You may also experience other penalties, such as requiring interlock device installation in your vehicle, court ordered counseling, probation, employment issues, and increased car insurance rates. For more about DWIs, check out our SuperBowl DWI Crackdown blog, which outlines the different charges and sentences: https://toccilaw.com/2018/02/03/super-bowl-dwi-crackdown/ If you’re arrested for a DWI, DUI, DWAI, or other alcohol or substance impairment crime, call us for a free consultation (631) 343-7676. Upon calling, immediate representation may be arranged.
Despite the above, being arrested for a DWI or impaired driving is the least of your problems if you find yourself in an accident. Causing a fatal accident while under the influence of alcohol or drugs could leave you facing a vehicular manslaughter charge with a sentence of up to 25 years in jail (plus fines and other penalties). You will most likely be battling civil lawsuits for personal injuries you’ve caused. Moreover, if you are injured, your insurance company may not have the obligation to cover your medical treatment under No-Fault.
Traveling as a passenger:
Do not get in the car with a drunk driver. Even though you’re not the individual committing a crime, being in the vehicle exposes you to an unnecessary dangerous and potentially fatal risk. Opt for alternative transportation home or to spend the night where you are. Even if your trip is a short distance, not permitting a drunk driver to drive could prevent an accident, or a friend being arrested. As the adage goes, friends don’t let friends drive drunk.
Memorial Day celebrations span over a three-day weekend. As a result of all the festivities and late hour driving, drivers are more likely to be drowsy. Driving while sleepy is unquestionably dangerous, as the alertness required to drive safely is diminished. Do not get in the car with a drowsy driver and do not drive drowsy. Again, choose an alternative means of transportation or stay put if possible.
The same transportation methods being utilized by too many people may also be dangerous. Too many passengers cramming into an uber or vehicle with a designated driver may distract the driver and inadequately protect the passengers. Seatbelts are limited. Do not get into a vehicle where there are not enough seatbelts. Even if you have a seatbelt, if there are not enough seatbelts for each passenger, if you’re in an accident, you could be exposed to heightened risk. Do not put children in vehicles that do not have the proper safety seats, even if the travel distance is short.
Drunk passengers may be rowdy and silly. This may distract the driver and potentially cause an accident. Limit the number of passengers in the vehicle to the appropriate amount.
Stay off the roadways:
If possible, stay off the road. Plan for sober and alert transportation to and from your destinations. Try to leave for home before you become over tired. Also try to leave before late hours of the night and early morning, when the number of impaired drivers on the road is highest.
If you have to drive:
Not everyone is able to celebrate Memorial Day Weekend: nurses, doctors, police officers, emergency personnel, retail store employees, etc., may be scheduled to work during typical celebration times. If you are scheduled to work, you may be unable to avoid the roadway. Just because you are sober and alert does not mean that other drivers are. Avoid speeding, wear your seatbelt, follow all traffic laws, and keep a look out for drivers that may be making the roadway unsafe. If you witness a vehicle swerving, traveling on the wrong side of the road, ignoring traffic control devices, call 911. Stay as far away from their vehicle as possible. Do not attempt to pass a driver you suspect may be impaired. Instead, choose to keep your vehicle as far back as possible. If you must pass the vehicle where legally permissible, be vigilant when doing so.
We’re here to help:
If you are injured in an accident for any reason, schedule an appointment with us as soon as you are able. The sooner you hire an attorney, the better your interests are legally protected. We will discuss and explain your rights and options in your situation.
Law Offices of Jennifer G. Tocci, P.C.
Broken bones are one of the most common injuries caused by a motor vehicle accident. Broken bones may range from minor stress fractures to serious or even life-threatening fractures. [Sidebar: A fractured bone is the same as a broken bone. It is a misconception to associate a fracture with only a “hairline break” or a non-displaced break.] As with any injury, a more serious fracture will be worth more than a less serious fracture. While the medical seriousness of a fracture varies significantly, any fracture is considered a “serious” injury in NY for the purposes of suing for personal injury compensation.
Types of Fractures:
Here, you will find the difference classifications of fractures that may be caused by a motor vehicle accident. Other types of fractures do exist but are usually not the subject of an accident. As you will learn below, not all fractures are the same. For example, a bone may be partially fractured or completely fractured all the way through. The line where the fracture exists may be any number of ways.
All fractures are either:
- Non-Displaced: the bone breaks but does not become unaligned from its proper location; OR
- Displaced: the bone has broken in at least two parts, and they are no longer lined up where they should be;
- Closed: when the bone does not break through the skin;
- Compound (open): where the bone does break through the skin.
Types fractures caused in accidents are:
- Transverse fractures: where the fracture line is perpendicular to the bone (may be displaced or nondisplaced);
- Oblique fractures: when the fracture line is on an angle through the bone (displaced or nondisplaced);
- Comminuted fractures: a displaced fracture where the bone has broken into multiple pieces or shattered;
- Greenstick: This type of fracture is broken on one side of the bone;
Treatment of Fractures:
If you’ve broken a bone in a motor vehicle accident, you should immediately seek medical care. While some fractures may not be obvious and less serious, failure to treat and care for a fracture could worsen the injury. Additionally, the fracture may not heal properly, which could lead to permanent pain, disfigurement and other complications. It is best to leave the scene of an accident in an ambulance for all fractures, especially skull fractures, as they could be life threatening.
X-rays should be ordered where a fracture is suspected. Even if a fracture is not visible on films, if other signs of a fracture exist, such as pain, swelling, bruising, discoloration and loss of mobility, the area should still be splinted and immobilized until further testing may be performed. At times, a non-displaced fracture may not be detectable on an X-ray. The diagnosis of a fracture immediately after an accident may be splinted for a few days prior to application of a permanent cast, to allow swelling to subside.
Unfortunately, there will be fractures that require surgery. If a displaced fracture is severe enough, the bones may require surgical realignment. More severe fractures may require surgically placed hardware to reconstruct the area.
Hire a Lawyer:
In an accident where a fractured bone is involved, it is important to hire an attorney as soon as possible. Insurance companies will do anything they can to devalue your claim. The earlier on in the process you hire an attorney, the more protected you are.
Choose Tocci Law:
At the Law Offices of Jennifer G. Tocci, P.C., all of our attorneys have a science or technical background in addition to a law degree. We believe this gives us superior skills to represent injured clients in lawsuits. Because we understand medical terminology and how to read your medical records, films, and reports, we can better explain your medical history to claims agents and the courts, providing you with the strongest legal representation in Suffolk County.
If you’ve broken a bone in an accident, schedule a consultation with one of our attorneys who will discuss your situation with you.
Phone Number: (631) 343-7676
Dental injuries are a common result of a motor vehicle accident. Hitting the steering wheel, headrest, dashboard, or windows upon impact or being struck by an object in the car can cause injuries to the mouth and teeth. Often, people view dental injuries as minor because they are usually not life threatening; however, dental injuries can be severe, permanent, and require immediate and long-term care. Similar to any other injury caused by the negligence of another person, dental injuries may also result in compensation for injuries, pain and suffering.
Types of Dental Injuries:
Broken teeth, loose teeth, lost teeth, crushed teeth, and injuries to gums, tongue and lips are types of dental injuries that may result from a car accident. Most of the time, dental injuries require immediate dental attention. A delay in receiving care can result in more damage.
Even low impact accidents can result in an injured party losing a tooth. Avulsion, or the loss of an entire tooth along with the full root due to traumatic impact, is the only true dental emergency that must be treated immediately. An avulsed tooth can be successfully saved if the tooth is replanted by a dentist within sixty minutes of the injury and root canal treatment is performed within 7-10 days after replantation. Be sure not to pick up an avulsed tooth up by its roots, but instead by the crown so as not to compromise the layer of cells on the outside of the root which must remain viable for replantation to be feasible. First attempt to place the tooth back in the socket, if possible. If not, do not place the tooth on ice or in milk but rather in a container of Hank’s Balanced Salt Solution (available in most drug stores) or even your own saliva. The reason for this is to mimic the tooth’s usual environment as much as possible during transportation. Failure to have the tooth replanted and splinted into place by a dentist within sixty minutes or to follow up with necessary root canal procedures within two weeks will almost definitely result in permanent loss of the tooth.
If your teeth are broken as the result of a motor vehicle accident, seek dental attention immediately. Root canals, extractions, implants, and/or crown and bridge work may be necessary to treat such dental injuries, and this treatment may have to be performed by a specialist.
Crushed teeth are far less common than the other dental injuries caused by a motor vehicle accident. Crushed teeth could require surgery and extraction depending on the severity. Tongue, lip, and gum injuries may also require surgery to correct. While permanent scarring will not occur to healed tissues within the mouth, it may be wise to seek treatment by a plastic surgeon for lacerations outside the oral cavity to ensure the least amount of permanent damage and scarring.
Unfortunately, many dental injuries will result in extraction of the tooth/teeth. Implants may be required to replace unsalvageable teeth. Failure to have an implant placed may lead to additional damage, such as tipping and loss of adjacent and opposing teeth. Aesthetically, you may wish to replace teeth as soon as possible. Additionally, failure to have implanted teeth may lead to bone loss and further damage. Damage resulting from failure to receive proper dental treatment may not be compensable. This may be problematic where No Fault Insurance refuses to cover certain procedures, as dental implants can be expensive.
If you experience a dental injury of any degree, seek dental attention as soon as you are able. It is important to not delay receiving treatment. Inform your dentist that you have been involved in a motor vehicle accident. This will allow the treating dentist to document the cause of your injury and to better understand your injury for diagnostic and treatment purposes.
As with any other type of injury, dental injury compensation will depend on how much treatment was required and how much damage was sustained. The teeth, mouth, and lips are valued as part of our appearance; missing or damaged teeth, especially the front teeth, and lip and facial scarring could lead to increased compensation.
If you experienced a dental injury, schedule a free case evaluation with our skilled attorneys at the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676.
If you’re injured while on another person’s property, and your injures are caused by the landowner’s negligence, you may be able to sue for your injuries. Property owners are legally responsible for the safety of their property, ensuring that it is free from hazardous defects and unsafe conditions. Property owners include private/residential properties, public properties, and governmental properties (e.g.: towns, city, state property).
Common types of unsafe conditions include slippery floors, cracked or uneven floors and sidewalks, lack of handrails, lack of proper lighting, exposed electrical wires or cords, obstructed emergency exits, negligent security, and housing dangerous animals, etc. These defects may lead to slip and falls, attractive nuisance injuries (e.g.: children in swimming pools), injuries caused by criminal activity (e.g.: a bar fight), and injuries caused by animals.
In New York, in order to have a viable claim for premises liability that caused personal injury, the landowner must have had notice of the dangerous condition. Notice means that the landowner either knew of the dangerous condition or should have known of the dangerous condition. Your lawyer will assist in discovering if there was notice in your situation. This may be shown by whether the landowner created the condition or proof the condition existed for an extended period of time. Every case is different and will depend on whose property you are on, why you’re there, how you are injured, and if the landowner created or knew about the unsafe conditions.
Once the landowner’s negligence is established, any potential defenses will be evaluated. For example, if the unsafe defect were open and obvious, you may be unsuccessful in a lawsuit if you should have seen the defect and avoided it. Similarly, the landowner may allege that you assumed the risk, such as traveling to the mall in a blizzard. In a situation where you are on another’s property unlawfully, such as trespassing, you may be barred from recovering in a lawsuit.
If you are injured on another’s property, notify the owner immediately or as soon as you are able. Seek medical treatment immediately following the incident. Further, make it clear where and why you were injured so that it is documented in your medical records. As always, consult your attorney as soon as possible, as certain premises liability cases have critically short deadlines.
For a free 30 minute case evaluation of your case, schedule an appointment with the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676.
When an injured party has suffered a “serious injury” after a motor vehicle accident, he/she may recover for pain and suffering from liable parties. In accidents that occur in New York State, you may only receive compensation for pain and suffering when the accident causes a “serious injury,” as defined by New York State Law. Once any one injury surpasses the “serious injury” threshold, you may receive compensation for all other injuries (even injuries that would not individually meet the threshold).
Are emotional and mental injures compensable?
As in a physical injury, the value of pain and suffering depends on the nature of the injuries. You may be able to receive compensation for emotional damages when your mental and emotional state is the consequence of injuries incurred after a motor vehicle accident. As with a physical injury, emotional damage claims are stronger where the mental suffering is severe enough to cause physical manifestations. The claim is strongest where brain injuries are identifiable by your physician. Similar to physical injuries, you may be compensated for your pain and suffering. Additionally, you may be compensated for lost wages resulting from your injuries.
Mental Injuries without Physical Injury:
Insurance companies will compensate an injured party for mental and emotional issued caused by an automobile accident. The claims must be proportional to the accident.
Injury to a Fetus: A mother has a right to recover for emotional distress, without physical injury, where she miscarries or delivers a still born baby as a result of the accident.
Negligent Infliction of Emotional Distress: These cases are difficult to prove, and often limited by the courts. The defendant must be shown to have been negligent, but the emotional distress must be caused directlyas a result of the defendant’s negligence.
Intentional Infliction of Emotional Harm: There must be extreme conduct on the part of the defendant, intended to cause emotional injuries. The injured party must suffer severe distress caused by the extreme conduct of the defendant.
Mental Injuries with Physical Injury:
Post-Traumatic Stress Disorder (PTSD) is one of the most common mental illnesses resulting from a traumatic experience, such as a serious auto accident. Symptoms of PTSD after an auto accident may include fear and anxiety driving, nightmares, bad memories of the experience, an increase in negativity, depression, trouble sleeping or concentrating, mood swings, hyperarousal (always being alert), etc.
Depression and anxiety may also be experienced after a serious accident, especially an accident that involved a totaled car, grave injuries, and death. Depression after a motor vehicle accident includes feeling hopeless, irritable, persistent sadness, changes in appetite, insomnia, etc. Anxiety may have similar symptoms, where a person feels increased tension, and experiences worried thoughts throughout their day. Depression and anxiety may affect daily life and may even result in physical health manifestations.
Proving Mental Illness:
As with any other injury, a diagnosis from a physician will be required, in addition to treatment by a physician for the same. Moreover, your physicians will have to link your injuries to the accident. Having your physicians diagnose and treat your injuries will not only assist in your personal injury case but in managing, reversing, and curing your injury. Documentation from a physician will be the key to proving your emotion and mental injuries resulting from an accident. The more medical records supporting claims of your injury, the stronger your claim will be. Medical records are strongest when they include a diagnosis, a doctor’s determination that the injuries are caused by the accident, medications prescribed, frequency of treatment, results of tests, films, and all other records evidencing your injury. Later on in the case, in addition to your medical records showing evidence of your mental injuries, you may testify on records in an Examination Before Trial (EBT or Deposition) regarding how your mental injuries affect your daily life.
For a free thirty-minute consultation with a skilled attorney regarding injuries after an accident, call the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676.
Can the Police Legitimately Search My Vehicle Without a Warrant?
It is a misconception that the police cannot search people’s vehicles without a warrant or their consent. However, there are situations in which an officer may search a vehicle without a warrant or consent. In those situations, any items found may be used against you in a court of law.
As American’s we have a Fourth Amendment right to be free from unreasonable searches and seizures. Legally, seizures have been defined as the exercise of control by the government over a person or thing. Searches, for the purposes of the Fourth Amendment, are legally defined as a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy. Typically, your home is the place where you are provided the most protection under the United State Constitution. Unlike the search of your home, the police are afforded more freedom to search your vehicle. Cars are considered to have a lower expectation of privacy than someone’s home, therefore giving police officers the “automobile exception.”
This is a brief overview of constitution search and seizure requirements. Every situation is different and even small changes in facts from case to case could greatly change the outcome. If you’ve been accused of a crime, it is important to hire an attorney who you can discuss all of the facts of your case with, so they can be evaluated for legitimacy and whether there are any exceptions or defenses that may apply.
When Stopped/ Pulled Over:
First, stopping a car (or pulling over) is considered a seizure under the Fourth Amendment. When a vehicle is stopped by the police, it is a seizure of the occupants within the vehicle. This includes the driver and all passengers. Typically, the police may not stop your car unless they have at least “reasonable suspicion” to believe that the law has been violated. However, this generally does not apply to cases where an individual or a limited number of vehicles are being stopped. As such, the police are permitted to create roadblocks and stop cars without individual suspicion, so long as there is a neutral and articulable standard for pulling each car over andserve purposes closely related to vehicles (e.g.: drunk driving check points).
When Ordered Out of the Vehicle:
When a police officer has lawfully stopped a vehicle, for safety of the officer, he may order both the driver and the passengers to exit the vehicle. If the police reasonably believe that the driver and/or passengers are armed and dangerous, they may legally frisk the occupants. In addition to the frisk, the police may search the compartments of the vehicle to search for weapons. Any contraband the office discovers during his or her reasonable search of the vehicle may be used against the vehicle’s occupants. Under proper circumstances, the police are permitted to allow narcotics detection dogs to search vehicles.
The Automobile Exception to a Warrantless Search:
The police may search a vehicle without a warrant when they have probable cause to believe it contains contraband or evidence of a crime.
Consent is Provided:
The police are permitted to search a vehicle when consent is provided. The police can pressure an individual to provide consent, even where it has previously been denied. For example, a cop may inform you (truthfully or not) that he will make an arrest for another crime unless consent is provided to search the vehicle. In this case, if consent is provided, the search may be considered lawful, regardless of whether the cop kept his word. Whether lawful consent was provided may be evaluated by your attorney.
Contraband/Evidence in Plain View:
If there is any contraband or evidence of a crime in plain sight in the vehicle, that could give probable cause for the office to search more of the vehicle. Additionally, anything in plain sight is fair game for the basis of an arrest.
If there is an Arrest:
A warrantless search of the interior of an automobile is valid under the law when the police have arrested an occupant in a vehicle and either the arrested person may gain access to the interior of the vehicle orthe officer reasonably believes the evidence regarding the offense the person is being accused of may exist within the vehicle. If the police legally impound the vehicle, they are then permitted to inspect the entire vehicle, including containers inside the vehicle.
The police can also search impounded cars without a warrant. Because the vehicle is now in their possession, they can open any locked compartments, etc. The reason for impounding the vehicle usually does not prevent the authority of the police to search a vehicle, even if it was impounded for a low-level infraction, such as a parking violation.
What is the Scope of a Warrantless Automobile Search?:
When the police have full probable cause to search a vehicle, they are permitted to search the entire vehicle. This includes the trunk and containers in the vehicle. The scope of the search is limited to the type of contraband and evidence seeking to be discovered. Therefore, if the police reasonably suspect the vehicle contains drugs, almost all containers and compartments will be searchable without a warrant. However, if the police are searching for an illegal alien, small compartments may be off limits without consent or other circumstances.
The police are not limited to only searching the driver’s belongings. If the police have a valid right to search a vehicle, that extends to the belongings of passengers as well.
How Do I know If the Police Conducted a Legal Search in My Case?:
Hire a skilled attorney immediately. Subtle changes in facts from case to case may have a drastic impact on the legality. Your attorney will be able to determine whether the police violated the law, and if the scope of their search was legitimate.
While are several factors that allow that police officers to search a vehicle without a warrant, there are still instances where searches are unlawful. If you’ve been accused of a crime, hiring an attorney to evaluate your case could drastically assist in the most favorable outcome. If you’ve been arrested for a crime in Suffolk or Nassau counties, please contact the Law Offices of Jennifer G. Tocci, P.C. at (631) 343-7676.
As chaotic as being in a car accident can be, getting the necessary help and information you need to build your case during the aftermath is imperative. Delaying any treatment or neglecting follow-up doctors’ appointments can negatively affect you receiving the compensation that you need. There are important questions to ask your doctors that can impact how much money you are entitled to after being sustaining an injury resulting from an accident.
Get a diagnosis:
Even injuries that can be observed with the eye must be fully tested for deeper issues. You do not know if there are underlying internal health risks associated with your injury without the proper testing. Many people delay treatment because they cannot see abrasions and deformities on their bodies. Failure to diagnose an injury, causing delay in treatment could potentially cause the injury to be more severe or permanent. It is important for you to inform your physicians you were in an accident for proper diagnosis of your injuries. Additionally, informing your doctors that you were in an accident will allow them to document potential causation of your injures in your medical records, which may later be used as proof of your damages.
Understand your diagnosis and treatment options:
Make sure you are informed of all of the injuries from which you are suffering. It is important to ask your doctor what exactly your injuries are and how they could affect you later in life. Unfortunately, there are some injuries from which people do not fully heal. Understanding the long-term effects can influence how you will proceed with future treatments.
Know if the accident caused your injuries:
Knowing whether the accident caused your injuries is imperative in determining whether you have a viable personal injury case. Feeling sore after an accident could lead to you being evaluated by a medical provider, only to learn you suffer from a condition (such as arthritis or degenerative disc disease) that was not caused by the accident. Therefore, it essential to your health and your case to know the specifics of how your injury was sustained. Doctors are there to be able to provide an expert opinion on these matters. Having a physician declare conclusively that your injuries were the result of your accident may help you better understand your injuries and add value to your personal injury lawsuit. Another question to ask your doctor is, can I go back to work? If not, how long of a leave should I take? Returning to work right away, or too soon after an accident may worsen your injury. Regardless of how severe your injury is, taking time off work may be necessary. Your doctor should write you a letter for the leave, and for when it is safe for you to return. A written letter can also be admissible and used as evidence to your case, proving your injuries have negatively affected your everyday life.
Request copies of your medical records:
Medical records are required for proving an injury after an accident. Without the proof of your injuries, treatment, or the medications you were prescribed, you will not have a strong personal injury case. While some doctors provide an extensive process to acquire these documents, it is imperative to follow through and obtain your medical records.
If you’ve been in an accident and were injured, speak to a skilled attorney about your circumstances. Call the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676 for a complimentary 30-minute consultation.
Despite the harsh weather conditions during the winter months, New Yorkers must continue-on with their busy lives, whether they’re commuting to work, school, or venturing out for a leisurely activity. Along with the everyday traffic, add wet, icy, snowy road conditions and all of the dangers come along with it.
Pre-start your car:
New Yorkers are notorious for always be in a rush. Little do they know, taking 10 minutes to heat up their cars could potentially save their lives. Allowing the necessary time for a car warm up not only melts snow and ice but allows your windshield wipers to remove snow and ice much more effectively.
Routine Vehicle Maintenance:
Don’t drive in poor weather conditions if you have neglected to maintain your vehicle. Make sure to check the gas tank and tire pressure on your vehicle before a long drive. While this may seem unimportant, harsh weather conditions may cause your unmaintained vehicle to fail when you need it most. Worn out windshield wipers or unsafe brakes may cause an accident. Additionally, driving with the necessary equipment to deal with a roadside emergency is essential. Be sure your vehicle has a tire chain, jumper cables, and a spare tire at all times. Being stuck on the side of the road may be dangerous, especially during poor weather conditions where other vehicles could slide into your parked vehicle.
Drive at a safe pace:
The speed limits are the maximum speed you should be driving in perfect weather conditions. In less than perfect weather conditions, travel slower than the speed limit posted, especially around turns. The slower you’re traveling, the more control you will have over your vehicle.
Watch out for other drivers:
In all weather conditions, it is important to be aware of other drivers. However, poor weather causes vehicles to slide, fail to stop, and turn improperly. As much as you may be prepared for your drive, you never know the conditions in which another is driving. When were their brakes last checked? Are they driving at a safe speed? Even if other drivers are safe and prepared, weather conditions can cause accidents. If you’re cautious of others while on the road, you can have a faster reaction time in the event of a potential accident occurring.
Don’t drive if you don’t have to!:
Why expose yourself to heightened risk if you are not required? The safest way to avoiding possible dangers in harsh weather conditions is to simply not drive at all. This will not always be an option for many people, especially those who must work regardless of the weather (i.e.: healthcare providers and emergency personnel); however, avoiding driving at unnecessary times can potentially prevent an injury or save your life.
If you have been in an accident and would like to discuss your rights and options with a skilled attorney, call the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676.
Rideshare services, such as Uber and Lyft, are relatively new methods of transportation. Generally, personal motor vehicle insurance policies do not cover vehicles that are used for work, in this case for a rideshare service. Surprisingly, laws that govern taxi companies do not necessarily apply to rideshare service companies. So how are Uber/Lyft liable for injuries as the result of an accident?
The Insurance Policies:
In New York State, all vehicles on the road are required to be insured, including vehicles used for rideshare services. In addition to the Uber/Lyft vehicle being insured, the Uber/Lyft company has its own insurance policy, which could compensate for injuries sustained as a result of an accident. Uber and Lyft each have at least one-million-dollar liability policies for each accident. Additionally, if other vehicles are involved in the accident and they are at-fault, they should also have auto insurance policies to cover injuries. If you’re in a situation where the combined bodily injury policies are unable to cover all the damages in the accident, you may be able to access your underinsured policy, if you have one.
Injured as a Passenger:
The difference between being injured as a passenger in a rideshare from any other car accident is there is an additional insurance policy purchased by the rideshare corporation, which may provide coverage for injures. This policy will protect passengers when the at-fault vehicle fails to have insurance coverage or enough insurance coverage to compensate for all injuries. Currently, Uber provides $1.25 million dollars in additional liability coverage per accident. [Sidebar: You must be a passenger who is purchasing the rideshare service. Driver’s personal passengers are covered under the driver’s personal insurance policy.]
Injured by a Rideshare Vehicle in another Vehicle:
If the vehicle is not being used for personal use by the rideshare driver, but the driver has not yet accepted fare (the rideshare driver has no passengers), then the primary insurance is the driver’s personal insurance policy. Rideshares offer additional insurance, usually up to $50,000.00 per injury, where the driver’s insurance cannot adequately compensate.
However, once the rideshare has accepted fare, injuries sustained as a result may be covered by the additional liability insurance policy.
Lastly, if you are injured by a rideshare vehicle that is used solely for personal purposes, the rideshare’s insurance policy will not cover your injuries.
Do I Need an Attorney?:
Aside from the regular advantages there are to hiring an attorney to represent you in your personal injury case, it is more important to have an attorney when dealing with injuries involving a rideshare service. In these cases, there is additional evidence required to show whether the rideshare service was providing services at the time of the incident. Proving this fact will depend on whether the injuries will be covered by the additional liability insurance. Without a proper showing of this, the personal policy may be the only policy accessible. This can be extremely damaging in cases where there are multiple injured parties and serious injuries that are not adequately covered by an individual’s personal insurance policy amounts. Knowing where the evidence exists and knowing when and how to request preservation of documents, records and other evidence can make all the difference in your case. An attorney skilled in handling accidents involving rideshares will better protect your rights.
Furthermore, rideshare services consider their drivers to be independent contractors. This means that where there are accidents caused by more than general negligence, and are caused by drinking, distracted, or reckless driving, the rideshare insurance policy may not cover injuries as a result of this type of accident. An attorney skilled in handling accidents involving rideshares will better protect your rights.
If you’ve been injured in an accident involving Uber, Lyft, or any other rideshare service, please schedule a complimentary thirty-minute consultation with the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676.
An executor is a person who is appointed to carry out the terms in a Last Will & Testament (called a “Will” for short). The testator, or person creating the Will, chooses his/her executor and alternate executors. It is an honor to be named as the executor because the chosen individual is usually the testator’s best choice in terms of trustworthiness and responsibility. However, being the executor can also be confusing and feel like a burden. When it comes time to act, most people find themselves unsure of the responsibilities and duties that come along with being the executor of a Will. Figuring out your required tasks can be difficult and overwhelming, especially when dealing with the death of a loved one. Here you will find a summary of some of the common tasks associated with serving as executor. This blog is not exhaustive, and the executor’s duties may extend beyond the activities mentioned here. The duties of an executor are not exactly the same for every estate. If you’ve been named executor in a Will and would like the assistance of legal counsel to probate a Will and/or advise you in your duties as executor, contact the Law Offices of Jennifer G. Tocci, P.C.
Gather and protect the estate assets: Generally, a decedent (the person who died) will have obvious assets, such as houses, cars, and bank accounts. However, the executor may need to do some investigative work, inspecting documents and mail, to determine where undiscovered assets may exist. Once assets are known, you will want to keep them safe. You cannot sell them for unfair prices, discard valuable items, or allow things to be wasted or destroyed. This will remain a responsibility of the executor’s until the assets are properly distributed to the beneficiaries.
Open an estate bank account: An executor is strictly not permitted to comingle his/her assets with that of the decedent’s. This step isn’t required if the estate has no assets.
Pay debts: Debts that are valid, appropriately, and timely asserted will need to be paid out of the decedent’s assets. You are not personally liable to pay the estate debts (unless you are married or otherwise separately responsible for the debt).
Pay Taxes: The executor may have to file income tax returns for the decedent. In many cases, the estate itself will need to file tax returns. If the estate exceeds five-million dollars, federal income tax returns will also need to be filed. The executor may wish to hire accountants to ensure the proper tax documents are filed with the federal and state governments.
Identify the beneficiaries: Most times, the beneficiaries are clearly identifiable. They are either known or expressly named in the Will. Other times, there will be people named in the Will that the executor does not know. Or there will be clauses in the Will that state, “all remaining assets shall be given to my great-grandchildren,” and those individuals will need to be identified and located.
Distribute the assets: The executor will need to distribute the assets to the proper beneficiaries. The Will usually needs to be fully probated, and Letters of Testamentary issued by the Surrogate’s Court before most assets can be distributed. Property, bank accounts, access to safe deposit boxes usually require probate prior to transfer of legal ownership.
All of the steps that need to be taken during executorship will differ from estate to estate. A skilled attorney can assist you during this process. Call the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676 to schedule an appointment with one of our attorneys.
Sealing Criminal Records in New York
Until recently, New York State did not have a procedure for sealing criminal records. Previously, New York State did issue qualified individuals Certificates of Relief from Disabilities, which assisted those with a criminal history in receiving professional licensing. Now, eligible individuals will be permitted to apply to seal their criminal charges in addition to requesting relief from civil disabilities. [Sidebar: There is no way to expunge or erase criminal records in New York State.]
Who is eligible to have their records sealed?
Not all criminal records can be sealed, even if several years have passed during which you have not been in trouble with the law. Firstly, in order to apply for sealing your criminal records, you have to be crime free for ten years. That means ten years from your last conviction and/or release from custody. Additionally, you cannot have more than 2 criminal convictions, and only one may be a felony. Under certain circumstances, you may be able to seal your criminal records in the event you have more than two convictions in your past, such as qualifying completion of drug treatment programs. If you have multiple convictions that are all legally related to each other, these charges may also be sealed.
In New York State, there are enumerated crimes that may never be sealed. These include sex offenses, violent felonies and other serious felonies.
How can you get your records sealed?
You must apply to have your criminal record sealed; it is not automatic. The application process includes obtaining required documents and evidence, filing an application and submitting a petition to the court. The District Attorney’s Office must also receive a copy of all of the documents submitted to the court. Once the process is complete, a Judge will consider your application and either approve or deny your request for sealing your criminal conviction history. Hiring an attorney to assist you through this process will increase your chances of being successful.
If your application is approved, you will receive a signed Seal Order. Once your history is sealed, only certain agencies will be able to view your criminal conviction history. These include the police, District Attorney’s Offices, the department of criminal justice, certain governmental agencies, etc.
How is sealing records different from a Certificate of Relief from Disabilities or Certificate of Good Conduct?
Sealing records does not permit certain entities, agencies, and the public from viewing your past criminal convictions. The primary reason people seek to have their records sealed is for employment opportunities. A Certificate of Relief may remove bars to applying for jobs, licenses, and public housing, etc. despite having a prior criminal conviction. A Certificate of Good Conduct allows you to apply for certain jobs, licenses, public office, housing or other rights that you lost when you were convicted. Depending on your criminal history, eligibility, and goals, you may choose to apply for one or more of these. The Law Offices of Jennifer G. Tocci, P.C., can help you determine your eligibility for each form of relief, as well as advise you of what will be needed for your to obtain your goals.
For an evaluation of your personal situation and assistance in the application processes, schedule an appointment with the Law Offices of Jennifer G. Tocci, P.C. (631) 343-7676.
What is an executor?
When you create your Will, you will need to choose at least one executor. Your executor is the person who probates your Will, gathers your assets, and distributes them in accordance with your wishes. [Sidebar: Probate means to submit your Will to the court so it can be legally declared valid. The court will then issue documents that authorize the executor to administer your estate in accordance with your Will.]
Who should you choose as an executor?
The person administering your estate will have access to your estate assets, including money. A trustworthy person, one who is preferably organized and can deal with numbers, is a suitable choice. Selecting a good executor can prevent delays, mediate conflicts, and reduce costs during the probate process. However, if you do not know someone with all of the qualities you wish your executor to possess, don’t worry; your executor can (and often does) turn to lawyers, accountants, financial advisors and other licensed professionals for assistance. [Sidebar: The cost associated with administering your estate is borne by the estate.]
Can an executor also be a beneficiary?
Yes, your executor can be a beneficiary but he/she does not need to be. Married parties often choose their spouse to be their executors- although they are not required to choose their spouse. Spouses who execute Wills at the same time do not need to choose the same executors.
What does an executor do?
Each estate may have different needs, but the typical duties of an executor will include:
- Presenting the Will to the court, with a petition to obtain authority over the estate
- Listing and determining the value of the assets and property in the estate
- Deciding which debts are valid and paying them
- Paying estate, property, and income tax
- Managing the property of the estate and investing funds
- Paying the expenses of the estate
- Selling property or investments
- Distributing assets to the beneficiaries named in the Will
- Preparing a final accounting of the estate
What happens if the executor you choose refuses to serve?
It is a good practice to name alternate executors in your Will, in the event the first chosen executor refuses or is unable to serve. However, if you do not have an executor, the court will appoint one; your beneficiaries will not be unable to gain access to your estate just because there is no named executor who can serve.
Tocci Law can help you protect your children, preserve your wealth, and safeguard your assets. We offer a range of estate planning tools and legal services. For legal estate planning services personalized for your estate, schedule an appointment with the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676.
Attorney Advertising. This blog post is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer-client relationship. Prior results do not guarantee a similar outcome. New York State only.
Although what to do when you’re in an auto accident may seem like common sense, knowing the repercussions of the choices you make at the scene beforehand can help you make the best decision in the moment. Injuries and emotions may cloud your judgment. Having a clear plan in the back of your mind should you ever be in an accident will reduce your risk of causing more damage or compromising your legal rights.
- First and foremost, stay calm. Always make safety your primary concern. Check yourself for injuries before exiting the vehicle. Then check your passengers for injuries. If you are able to leave the vehicle, ask the other people involved if they are okay. That should be your very first question to the other driver. Don’t discuss who is at fault or what went wrong. Check on everyone’s wellbeing. Asking the other driver if he/she is okay will also set the tone for your interaction. A lot of times people are angered or scared after an accident. If you’re pleasant and caring, it can make the situation transgress more amicably.
- If the accident is minor, do not block the road- pull off to the side. You do not want to risk being in a subsequent accident because you’re blocking the road.
- In a serious accident, where anyone is injured, or the car is disabled, do not move the vehicles.
- Call the police whenever there is personal injury or serious damage to vehicles. (More on this below.)
- Use flares and flag traffic away from the scene until the police arrive. Do not proceed into the middle of the road to gather items that have fallen off of the vehicles or out of the cars.
- Each driver should exchange information, including name, address, insurance company, license plate number, registration, etc.
- Take pictures! This can be the best thing you do. You don’t want someone blaming you for more damage than you caused, and you don’t want someone claiming your vehicle wasn’t as bad at the scene.
- Do not make an admission of fault to the police or any other driver. Sentences like, I didn’t see the vehicle, or I am not sure if the light were red, will be used as admissions of guilt.
- Always, always, always cooperate with the police if they are at the scene!
Should the police be called to the scene?
You’re almost always better off calling the police, although it is not a legal requirement. In every significant accident, where there is property damage and/or personal injury of any magnitude, your insurance company requires you to report it. Most companies require you to do so within 24 hours, or as soon as you are physically able. Additionally, NYS DMV requires all significant accidents are reported to it. Always call the police to the scene if there are injuries of any kind, no matter how seemingly minor.
Proof-wise, it is best to have the police at the scene. The only advantage to not calling the police is to avoid reporting the accident to your insurance company. An at-fault driver can tell you at the scene that he/she will pay for the damage and accept responsibility, and then when he/she reports it to their insurance company, the story changes so drastically that you seem to be more at fault than you were. Additionally, at the scene, other drivers may seem willing to pay for the damage, and then later heavily dispute your estimates. The result could be that you must report the accident to your insurance company anyway because you can’t come to an agreement. At that point, you have to hope an at-fault driver won’t distort the facts. Furthermore, if you aren’t given his/her proper contact information, if they stop answering the phone, you may be unable to locate them. Now you must go through your insurance company anyway; in the worst-case scenario, you will have nobody to take responsibility for their actions.
In the event you are in a minor fender bender, you may wish to settle it between drivers, without police involvement. This is where the property damage is so minor, that the deductible will likely exceed the cost of repairs. However, be sure to have the other parties release you for all claims of liability in the event you pay for someone else’s damages. Never pay for someone else’s repairs in cash. Do not pay the autobody shop directly without proof that those funds were supplied by you. Even if you do pay the shop directly or pay the other party with a check, still make sure that they release you from all other claims of liability. Your attorney can draft a legally binding document that will protect you from a future lawsuit or insurance claim.
For a complimentary 30-minute consultation with the Law Offices of Jennifer G. Tocci, P.C., call (631) 343-7676 to schedule an appointment.
Attorney Advertising. This blog post is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer-client relationship. Prior results do not guarantee a similar outcome. New York State only.
This blog discusses proper dress code for a defendant to wear during pre-trial criminal court appearances (read: not for trial, testifying as a witness, serving jury duty, etc.). From experience, it absolutely matters what you wear to court. All of our clients are advised to dress properly, as we have witnessed it make a favorable impression on the court. [Sidebar: The same is true in the inverse, we have seen improper attire work against defendants.] But what is the proper way to dress for court, specifically if you’re a criminal defendant?
Court is not a casual place. It is where significant matters take place. Whether you are facing serious jail time or a minor infraction, a well-dressed person is showing respect to the court. It doesn’t mean you must wear a business suit (although if you are able, you should). However, there is a difference between wearing dress pants with a button-down shirt and flip-flops, shorts and a t-shirt. You want your clothing to work for you, not against you. You want your attire to say you take your legal matters seriously and that you respect the court. It’s true, you should not be judged as a person for the way that you are dressed, but the judges (the prosecutors, and the jury) are just people, and people form opinions based on appearance. If this weren’t true, then it would not be unconstitutional to force a defendant to stand trial in jail clothing or imposing physical restraints, which has been said to violate the 6th Amendment right to a trial by jury by undermining the presumption of innocence.” See, Estelle v. Williams (1976) 425 US 501, 504-505. The bottom line is you should be dressed as well are you are able to dress for each court appearance.
Courthouse: If the courthouse you are appearing in has a dress code, you should unquestionably follow it. You don’t want to risk not being permitted in the building and being late or missing your appearance. New York State Courts have no formal court dress code. Similarly, the New York Federal Courts also have no formal dress code, but advise, “Proper court attire is mandatory. No jeans, shorts, tank tops, sweats or other very casual attire is permitted.” The NYS Federal Courts suggest business casual or full business attire for jurors who are appearing for jury duty. Without explicit guidelines, defendants can be confused about what to wear on their court date. [Sidebar: NYS Federal Courthouses will not allow you to bring in your cell phone, electronic device, and camera or recording device.] As a rule of practicality, do not wear too much jewelry, or metal objects. You will be passing through a metal detector to gain entry into the building.
The Judge: Each judge may have his or her own rules. Most judges will not allow you to wear a hat while your case is being called. Others won’t allow you to wear a hat inside their courtroom at all. Sometimes the judges will have rules posted outside of their courtroom. If that is the case, make sure that you are in compliance with your judge’s request. While defending your criminal case, you want to do everything possible to gain a favorable outcome. Even though dressing up may not be plausible for you, you don’t want to do anything that could jeopardize your case or hassle you during the process. Don’t wear offensive clothing with curse words, lewd statements or images. The judge could request you remove that item of clothing and have your case recalled when you are more properly dressed. We have seen judges remove defendants who were not dressed appropriately, for example, wearing their jeans buckled around their knees. [Sidebar: Judges are not allowed to request you remove religious attire.]
The bottom line is you need to dress appropriately. Men: wear a business suit and tie. Woman: wear a suit or professional dress. If you do not own a suit, now may be a good time to buy one. At the very least, wear nice pants and a button-down top. If you would wear it to a job or college interview, then it is probably suitable for court. Avoid wearing jeans, flip flips, t-shirts, revealing/tight clothing, clothes that do not fit, leggings, pajamas, hats, sunglasses, du-rags, flashy clothing/accessories, etc. You will see other defendants in court dressed in casual street clothes; however, you want to stand out in a good way when appearing before the judge.
 US District Court- Eastern District of New York, https://www.nyed.uscourts.gov/court-info/faq?page=12
If you’ve been charged with a crime, call the Law Offices of Jennifer G. Tocci, P.C., to schedule a free consultation (631) 343-7676.
Attorney Advertising. This blog post is designed for general information only. The information presented at this site should not be construed to be neither formal legal advice nor the formation of a lawyer-client relationship. Prior results do not guarantee a similar outcome. New York State only.
Do you have minor children? How should you estate plan?
Younger people tend to put off creating a Will and other estate planning documents because they believe it is less likely that they will need them in the foreseeable future. Additionally they feel that they don’t own all of the assets they hope to acquire, don’t have many assets, or are not yet married, and therefore estate planning isn’t yet required. Regardless of your financial situation, if you’re over the age of 18, you should have an estate plan for your property and legal documents specifying your wishes for emergency medical care. If you have minor children, the need for estate planning documents is more important because your failure to plan could greatly affect their lives.
Who will take care of your children if you die or become incapacitated?
Once you have children, an estate plan is imperative, not only to ensure who will inherit your property and how, but to designate who cares for your children if you die or become incapacitated. It is vital to have the proper documents nominating legal guardians for your minor children in order to protect their happiness, safety, and wellbeing. Without documents expressing your wishes, in the event of your death or incapacity, individuals who are seemingly fit to raise your children under the law could be doing so. The courts will appoint the guardian for your minor children if you do not. This is costly, and could cause the assets your children should be inheriting to go towards payment for court guardianship proceedings. Choosing a guardian for your minor children in the event of your death or incapacity is crucial when their other parent will not able to take care of them. Your children’s other parent may not be legally fit for parenthood. Your children’s relatives may be deemed unfit by the court. Two sets of grandparents (or any relatives) could battle in court over the custody of your children. Absent an estate plan, a social worker will be assigned to evaluate and determine (at your expense) the best interests of your children. Don’t assume that family members will be permitted to take care of your children in the event of a tragedy. Without an estate plan designating a guardian for your children, they could end up in foster care. The best way to protect your children in the event of your untimely death or incapacity is to make a plan with your attorney so their future isn’t left to chance.
When you design your estate plan, you have flexibility and choice; you tailor your plan to fit your family and life situation. For example, you may designate a temporary guardian for short periods of incapacity and a different guardian for your children when you pass away. This will assist in instances where you are incapacitated or unable to care for your children, but will recover soon (for example, hospitalization for a serious illness you plan to recover from, or rehab for drug and mental health issues). You can grant your chosen guardian the power to pick your children up from school, gain access their healthcare information, make emergency medical decisions, etc.
If your minor children are your heirs, why do you need estate planning? Won’t they just inherit everything?
If you pass away when your children are minors, unless you make a Will to the contrary, there will likely be property they are entitled to inherit. [Sidebar: in some situations, your spouse (or others) will inherit all of your property.] Under the law, children cannot govern the property they inherit until they reach majority age. You may wish to create a trust and designate a trustee to administer and protect their inheritance. If you do not create a proper estate plan, the courts will decide who manages your children’s inheritance; this costs money and time, and could potentially lessen your children’s overall inheritance amount. Parents find it gives them peace of mind to designate a trustee to manage their minor’s property until they reach eighteen, instead of allowing the law to decide for them. Additionally, when you create a trust, you are in control of certain provisions, beyond nominating a trustee; you can express your wishes beyond who manages the property. For example, you can extend the age at which your children will receive their trust property. Many parents feel their 18 year olds will not yet be mature enough to manage money or property responsibly. Trusts can specify that children be given all trust property at a later age, such as 21 or 25.
If I am married, do I need to create an estate plan to protect my minor children? Won’t my spouse take care of everything?
Even if your children have another parent, estate planning is still essential. Life is unpredictable and there could be unfortunate and tragic situations where you and your child’s other parent pass away in the same incident (i.e.: a car accident). Thinking you’re protected because your children have another parent will not help you in this situation. If you are married, but you are not married to your minor children’s other parent, there could be issues as to who inherits what. Even though you may not need to nominate a guardian if your children have another parent, there will still be inheritance provisions you wish to put in place. [Sidebar: this is assuming you pass before their other parent, because if the other parent passes first, before you create your estate plan, your children are unprotected.]
Don’t leave what happens to your family at the time of your death or incapacity to the courts. At the Law Offices of Jenifer G. Tocci, P.C., we assess your entire life situation, family structure, your potential needs and your desires before advising you and designing your personalized estate plan. If you wish to discuss your estate plan and how you can protect you, your family, and your assets we invite you to schedule an appointment with us (631) 343-7676.
When you’re in an accident and suing for the injuries you sustained as the result of another party’s negligence, there are two main prongs that must be established: 1) liability (is the party at fault?), and 2) damages (dollar amount of injury and loss). It is essential that you are able to prove both liability and damages; you must be able to show that the other party was responsible for your injuries and that you have suffered injuries and loss. In personal injury lawsuits, there are ordinarily two types of damages that form your total damages computation: general damages and special damages. General damages are non-economic damages that are comprised of intangible losses, such as pain and suffering, disfigurement, and loss of amenities. Special damages can be measured in money and include medical expenses, loss of wages, household expenses, and potential loss of earnings. Additional categories of damages exist and may accompany your individual personal injury lawsuit. For example, you may have a claim for emotional damages. An attorney at our firm can assess your case for all potential damages to ensure you receive the maximum compensation for your injuries.
How is the dollar amount of an injury calculated?
First, in New York State, you must have a “serious” injury as defined by the law in order to be compensated for your injuries and to start a lawsuit (see earlier blog for more information on “serious” injuries). Therefore, if you do not meet the legal threshold to start a lawsuit, your injuries will likely not be worth any money. If you have suffered an injury legally worthy of pursuing a lawsuit, your attorney will calculate your damages and gather proof to support his/her findings. Your special damages will be measured. These are your actual expenses and vary from case-to-case depending on what you paid out of pocket, lost in earnings or will lose in earnings. These expenses are hard numbers, meaning the dollar figure is easily identifiable. For example, if you have medical bills that you paid for out of your own funds, the cost of those bills will be one of your actual expenses.
How is the worth of pain and suffering determined?
Every personal injury lawsuit should include a claim for pain and suffering. In addition to special damages (see the above paragraph), every personal injury case should consist of a claim for general damages (i.e.: pain and suffering). This amount depends on the nature of your injury suffered, the reasonable and necessary treatment, and future pain and suffering that is expected to be experienced. Pain and suffering is challenging to calculate because you do not get a bill for it, as you do for medical treatment. As a result, several factors are taken into consideration when gauging the worth of your pain and suffering. The length of treatment that is reasonable and necessary is a significant component in determining the worth of your pain and suffering. Additionally, the total cost for your reasonable and necessary medical treatment will form another basis in determining the value. Your recovery time and process will also be evaluated. Frequently, insurance companies try to diminish the value of your pain and suffering by pointing out “weaknesses” in your case, such as gaps between visiting physicians, and failure to follow-up with medical treatment or go to physical therapy. Each insurance company values the worth of pain and suffering for the same injuries differently. This is where our skilled attorneys can make a difference.
The responsible party will try to refute your claim for damages. For example, the responsible party may assert that he/she is not responsible for your damages and/or that those damages are not worth that much. [Sidebar: even where you are successful proving liability and damages, your ability to collect compensation may be limited by insurance policy limits.]
Is wrongful death considered pain and suffering?
In New York State, you do not have the ability to recover for the loss of enjoyment of life when the injured party passes away. The only damages in a wrongful death case would be the pecuniary loss to the family. [Sidebar: in certain circumstances, a child may recover for loss of parental guidance and a spouse for loss of services.] However, a claim for conscious pain and suffering should be distinguished from a wrongful death claim. Compensation may still be sought for pain and suffering, even if experienced only briefly before death.
If you would like to speak with one of our attorneys and receive a personal case evaluation, we invite you to schedule a free 30-minute consultation with the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676.
At this time, recreational marijuana use is still illegal in New York State. In New York, the legal consequences of marijuana possession can range from a fine to a felony conviction and up to 15 years in prison. [Sidebar: this information is for marijuana possession only- sale, cultivation, possession of drug paraphernalia, driving under the influence, etc., are not legally the same.] In addition to legal repercussions, having a conviction for marijuana possession on your record may prevent you from gaining and maintaining employment, keeping a professional license, receiving financial aid for school, and interfere with custodial rights of your children. [Sidebar: a marijuana possession conviction can have a devastating effect on your citizen application.]
Recently, the New York City Police Department changed its protocol on arrests for certain marijuana crimes. Likewise, the Manhattan District Attorney’s Office changed its policy on prosecution of certain marijuana cases. Although recreational use of marijuana is illegal in all of New York State, depending on your location and how much marijuana you are in possession of will determine whether the police department will arrest you and then whether the District Attorney’s Office will prosecute you.
Effective September 1, 2018, New York City Police will change its protocol, declining to arrest for low-level marijuana crimes and violations. Therefore, if you are caught in possession of marijuana in NYC, you may receive a ticket instead of being arrested, handcuffed, taken to the station, fingerprinted and booked. [Sidebar: this does not exempt you from being arrested for other crimes in NYC. For example, if you are caught driving while smoking marijuana, you can be arrested for driving under the influence and marijuana possession.] Despite not being arrested, the tickets issued will still have the effect of an arrest. This means that even though you are issued a ticket instead of being hauled away in handcuffs, you will still need to appear in court and answer the (potentially criminal) charges. There are several exceptions, for example, people who have a criminal background may still be arrested for marijuana possession in NYC. NYPD officers will still be permitted to stop and search people who they believe are in possession of marijuana. Despite these changes in NYPD protocol, Suffolk and Nassau Police Departments have formally declined to follow NYC’s progressive and relaxed approach. Suffolk and Nassau Police Departments will continue to arrest for possession of marijuana.
District Attorney’s Offices:
Whether the police arrest you or not, as of August 1, 2018, the Manhattan District Attorney’s office will no longer prosecute for possession (and use) of “small” amounts of marijuana. [Sidebar: “small” amounts have yet to be officially defined.] However, the Bronx, Queens, and Staten Island District Attorney’s Offices will continue to prosecute marijuana possession crimes. Nassau and Suffolk District Attorney’s Offices will also continue to prosecute (and the police departments will continue to arrest) for all marijuana crimes, consistent with New York State law.
If you have been arrested for any crime in Suffolk or Nassau County and wish to discuss your rights with a skilled attorney, we invite you to make an appointment with the Law Offices of Jennifer G. Tocci, P.C., to have one of our attorneys will evaluate your specific case and potential defenses.
Your parent’s remarriage will impact your inheritance. While talking about who will inherit your parents’ assets is a difficult topic, you may wish to discuss your parents’ plan with them, and urge them to make a Will, to avoid potential fights and hurt feelings around their assets after they pass. Disputes between children and their stepparent can be intense and adversarial when the children learn that they will not be inheriting all (or in some cases, any) of their parent’s property. And while your parents probably aren’t considering what will happen to your inheritance when they pass, remarriage can have a devastating effect on family assets. What happens to your parent’s property when he/she gets remarried and then passes away? How does it affect your inheritance?
Remarried without a Will:
In New York State, if your parent dies and he/she is not married and did not leave behind a Will, his/her children will inherit the estate equally. That means, you and your siblings who also have the deceased parent as their parent will share everything in the same amounts. However, if your parent remarries and then passes away without a Will, the children are not entitled to all of their parent’s estate. Instead, if your parent passes first without a Will, your stepparent will be entitled to receive the first $50,000 and one-half (1/2) of the remainder of your parent’s estate. This means that you and your siblings could be splitting what is left of your parent’s estate, after $50,000 is deducted, and another 1/2 is given to your stepparent.
Also, this equation only applies to estate assets, meaning assets that were solely under the ownership of your individual parent. Jointly owned property between the spouses may not be considered estate property, and all or part of that asset could transfer directly to your stepparent by law. Life insurance proceeds are often not estate assets and therefore pass to a named beneficiary. If your parent named their spouse on their policy, you are not entitled to receive the funds from the policy. Where your parent fails to name a beneficiary, the funds would be considered part of your parent’s estate. Then your stepparent will receive $50,000 plus one-half of the remaining estate assets.
If your parent and stepparent lived in a home together, even where your parent purchased the home prior to the marriage, under certain circumstances, it could be automatically under the sole ownership of your stepparent upon your parent’s death. This would mean the house is not an estate asset, making you and your siblings ineligible to inherit it. Cars and assets purchased by your parent but placed in the stepparent’s name or used exclusively throughout their relationship could be passed solely to your stepparent.
With a Will:
Even with proper estate planning, your parent cannot totally disinherit your stepparent. Therefore, even if your parent makes a valid Will leaving everything to his/her children, your stepparent will still be eligible to inherit a portion of your parent’s estate under New York State Law. At a minimum, your stepparent is eligible to inherit one-third (1/3) of your parent’s estate, even where your parent wishes to leave his/her spouse nothing.
Your parent may create a Will that directs his/her entire estate to be left to his/her spouse. Property that passes to your stepparent via your parent’s Will becomes his/her property. Additionally, property that passes to your stepparent without a Will becomes his/her property. Therefore, if your stepparent does not make legal plans for you to inherit his/her property, you are not entitled to inherit any of it, even if your stepparent originally inherited that property from your parent. [Sidebar: If your stepparent does not make legal plans for your to inherit his/her property, your are not entitled to inherit any of it, even if your stepparent originally inherited that property from your parent, who inherited it from your other parent!]
Estate planning can help direct where assets may go according the wishes of your parent, instead of a situation he/she did not intend. Depending on the type of assets and how your parent wishes to devise them, your parent may be able to accomplish his/her goal with tools such as Wills, Powers of Attorney, trusts, gifts, transfers, joint ownership and beneficiary designations, etc., or a combination of these.
If your parents are considering remarriage or are already remarried, it is important for them to create an estate plan or update an existing plan to identify his/her assets, and specify how he/she wants his/her assets to be passed. The skilled attorneys at the Law Offices of Jennifer G. Tocci, P.C., are available to further explain the steps of the estate planning process and will help you and your parents put a plan in place that reflects your wishes and protects your assets. For more information or to schedule a consultation, contact our office at (631) 343-7676.
How long can I wait to be treated for injuries and still successfully sue?
Even the smallest car accidents can be traumatic events. When you’re rattled, shaken up and in shock, it is difficult to think rationally. At times, emotions can override a person’s ability to notice that they’ve suffered a serious injury. Pain is often not felt due to the body’s emotional reaction. Alternatively, at the scene, some people think it is better to see a doctor at a later time than to leave in an ambulance immediately. Then they wonder if they are able to sue for their broken arm because they didn’t leave in an ambulance right away.
Can I still sue if I didn’t leave in an ambulance?
If you are ever in a car accident and for any reason to believe you may be injured, it is best to leave in an ambulance- even where you believe the injury may not be serious or in need of immediate medical attention. When your injuries are documented straightaway after an accident, the defendant has a harder time claiming your injuries were not the result of his/her negligence. However, if you’ve previously been in a car accident, and did not leave in an ambulance, it does not bar you from being able to successfully sue the driver. If you are injured as the result of a car accident due to someone else’s negligence, you can still sue even if you did not leave in an ambulance right away. There is no legal requirement that you must leave in an ambulance in order to have a strong lawsuit against an at-fault party.
How long can I wait to be treated for my injuries and not compromise my lawsuit?
The sooner you seek treatment, the better. However, plenty of people decide to visit a physician after the accident, rather than leaving in an ambulance, when they do not believe they require immediate emergency medical care. Seeking medical treatment within 72 hours is best not only for any potential settlement funds, but to ensure that your injuries are being taken care of and not worsening from lack of treatment. Undiagnosed injuries can become much worse by failing to treat them at the outset. Even if you believe you are fine, it is best to be evaluated by a doctor. Sometimes, people suffer injuries that do not appear right away. This is one reason it is best to seek medical attention even if you feel fine; however, if you failed to see a physician, you should see one as soon as you begin to feel pain. Let your treating physician know that you have been in an accident, so he/she can document it in your medical records. Additionally, your doctor will be able to determine with a reasonable degree of medical certainty whether your injuries are the result of the car accident. Having this documented in your medical records could be the difference between a strong and weak case.
The law provides you with 3 years from the date of an accident to file a personal injury lawsuit (also known as the statute of limitations). This means that the law gives you time to discover your injuries before requiring you to start a lawsuit. If you do not suffer from injuries within 3 years, you cannot sue even if those injuries are in fact a result of the car accident. But if you seek medical treatment for the first time months or years after the accident, even if you have been suffering from your injuries the entire time, you will have a weaker lawsuit. This is because it will be harder to show that your injuries are a result of the accident and that they are in fact “serious injuries.” In order to successfully sue an at-fault driver in New York, you must have suffered a “serious injury” as defined by the law. (See our blog explaining threshold injuries: How injured from an auto accident do you need to be to start a lawsuit in New York?)
What if my injuries don’t show up right away?
Concussions and soft tissue injures are often not immediately apparent. Because they are unable to be diagnosed by an X-ray, they can be difficult to diagnose if there are no pain or other symptoms. With soft tissue injuries, symptoms appear later on because the swelling and reduced mobility takes time to manifest. Concussions can cause confusion, and the symptoms may be ignored or dismissed as something else, such as a headache; however, they can be extremely serious. At the first sign of any injury, you should seek medical treatment.
What should I keep in mind?
No-Fault insurance is medical insurance coverage that accompanies every auto insurance policy in New York. Generally, the insurance companies require your No-Fault application be filed within 30 days of the accident. This means that if you plan on visiting a physician, you should file immediately. Failing to file for No-Fault benefits can result in you having to pay for your medical treatment out of pocket or having your health insurance cover it, and then there would be a lien for medical expenses included with your lawsuit. This could potentially lower your financial recovery for pain and suffering.
The bottom line is that you do not need to leave in an ambulance to sue; however, the sooner you do seek medical treatment, the stronger your chance of physical recovery and the stronger your personal injury lawsuit will be. Every case is different. You should speak with an attorney about your specific matter. If you’ve been injured in an accident, schedule a free 30-minute consultation with a skilled attorney at the Law Offices of Jennifer G. Tocci, P.C. to discuss your rights and options (631) 343-7676.
Arrest warrants and bench warrants are orders from a judge directing and allowing the police to arrest you. Bench warrants are typically issued when you fail to appear in court, failed to pay a fine, or failed to appear for sentencing after being convicted of a crime or violation; whereas arrest warrants are issued after the grand jury or law enforcement officials have probable cause to suspect that you have committed a crime. Neither arrest warrants nor bench warrants expire, and therefore must be confronted in order to resolve the issue.
A warrant issued for your arrest will ordinarily result in the police actively searching for you. While you can surrender yourself to law enforcement in the event the police do not immediately arrest you, you cannot “lift” (vacate) the warrant. If an arrest warrant is issued against you, you will have to defend yourself in court against criminal charges.
If you have a bench warrant, the police are not likely to be out searching for you. Instead, when you are pulled over, questioned, or otherwise involved with the police, the warrant will come up and you may be arrested or issued a ticket that is equivalent to an arrest. Unless you are aware that you missed a court date, most people are unaware that a bench warrant has been issued against them until they are pulled over and arrested.
What do I do if I have a warrant against me or suspect I do?
At times, you may be able to go to or call the court where you believe the warranted was issued. Your attorney will be able to find the warrant and obtain information on the underlying charges that caused a judge to issue the warrant. Ignoring the warrant will not make it disappear, and you could find yourself in police custody without having already discussed the matter with an attorney. It is a better move to be proactive. By hiring an attorney to vacate (lift) the warrant or surrender you (turn you in), you could potentially avoid sitting in jail. Depending on the severity of the crime, if your attorney vacates the warrant, you could avoid jail time entirely, whereas if the police arrest you, you could find yourself sitting in a cell, waiting to be seen by a judge. Additionally, that attorney can handle your subsequent court appearances, hearings and trials.
Will I be notified if I have a warrant?
If a bench warrant has been issued against you, the courts will not send documents notifying you that a warrant has been issued- you will be “notified” when you are being arrested. In the event you are stopped for a minor traffic infraction, you could find yourself in handcuffs if you have an outstanding warrant. If an arrest warrant has been issued, you will be notified when you are arrested.
How do I vacate (lift) a warrant?
The only way to vacate (clear or lift) the warrant is to appear before the judge who issued the warrant. As stated above, it is best to hire an attorney for this process because he or she can create a plan to help you avoid the most jail time and handle your future court appearances.
If you believe you may have an outstanding warrant, call the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676 to discuss your matter with a skilled attorney.
Texting or using your cell phone while you operate your vehicle is a form of distracted driving. Distracted driving, texting and driving, and using a mobile device while driving is illegal in New York State. Texting and driving is estimated to cause nearly 25% of all car accidents. [Sidebar: That’s 6x more frequent than an accident caused by a drunk driver.] According to the Department of Transportation, distracted drivers have claimed 3,450 lives and injured more than 39,100 in 2016 alone. Therefore, if you’re in an accident, it is not unlikely that the cause of the accident could be due to a driver distracted by a cell phone.
[Sidebar: Texting and driving is illegal, and a ticket for using your cell phone while driving is a 5-point infraction with up to a $450 fine plus surcharges.]
Being distracted by your device while driving isn’t limited to texting; it includes using the GPS, talking on your phone, using apps, browsing the web, playing games, reading, typing, dictating, facebooking, instagraming, snapchatting, viewing images and videos, video recording and taking pictures. Teenagers are far more likely to text and drive than drivers of any other age group. [Sidebar: Drivers with a probationary period (i.e.: junior drivers with a Class DJ, Class MJ, or a Learner Permit) who receive a ticket for texting and driving will have their license suspended for 120 days after the first offense.]
What do you do if you’ve been injured in an accident caused by someone texting and driving?
Hire a skilled lawyer to act in your best interest as soon as you are able. You cannot trust any of the involved insurance companies, even your own provider! At-fault drivers and insurance companies will often dispute that texting and driving was the cause of the accident. If you cannot prove that another driver was texting, it could limit your ability to hold them liable and have them compensate you for your injuries. Evidence in texting and driving cases is usually only obtainable for a short period of time. You should hire an attorney that will be able to perform a proper and thorough investigation and build solid proof on your behalf. It is important to have the at-fault driver’s cell phone records subpoenaed. The accident location and involved vehicles should be assessed and searched to discover all video and surveillance cameras. Any existing video recordings should be requested, subpoenaed, and the individuals who possess these recordings should be made to save them. Any and all witnesses should be identified and interviewed. Any and all traffic tickets issued should be examined. The police report should be inspected. Your specific situation should be assessed to determine what type of evidence might exist and it should be uncovered and obtained immediately. A strong attorney like the attorneys at the Law Office of Jennifer G. Tocci, P.C. will be able to hold the negligent driver accountable.
If someone who was texting and driving has injured you, our legal team has experience and the investigative skills to skillfully handle your case. Call the Law Offices of Jennifer G. Tocci, P.C. for a free thirty-minute consultation (631) 343-7676.
Maybe you’re in a serious relationship and considering marriage or living with someone and wondering if marriage is right for you when you have the family arrangement you already want without being married. Would you be better off designing an estate plan that meets your needs instead of tying the knot? Yes, marriage and relationships are about love, commitment, and are socially and religiously expected. However, Millennials are cohabitating without marriage and marrying later than any other generation in the past. When contemplating asset protection prior to marriage, people often map out the repercussions of divorce; but a strategically crafted estate plan could potentially protect you in the event of a divorce, as well as upon your death.
Here are some legal (non-social and non-religious) things to consider when deciding whether marriage is best for you. As always, every situation is different. Speak with an estate attorney to see if you could create the family you want with an estate plan instead of marriage.
Unmarried: Without an estate plan stating otherwise, you and your significant other will not inherit his/her property when either of you passes away. This could be severely detrimental you could find yourself sharing assets you contributed to the ownership of.
Married: Contrary to popular belief, when your spouse passes away, you don’t inherit all of his/her property. If your spouse passes away and there is no will, you could find yourself sharing his/her estate with his children. It is preferable to being able to inherit nothing owned solely by your significant other in the event he/she passes before you’re married. However, even if you do decide to get married, you should still have a strong estate plan in place to ensure that you’re both protected.
If you purchase a house together as a married couple (tenants by the entirety), your spouse will become the 100% owner of your marital home upon your death. There will be no need to probate a will or involve the surrogate’s court.
How can an estate plan help?: You do not need to get married in order to have your significant other inherit the property you own with an estate plan. You could leave everything (or certain assets) to your significant other in your estate plan without needing to be married. In certain circumstances, you can arrange it so that there is no need to probate a will or involve the surrogate’s court. However, if you do decide to get married, property may still not pass the way you wish. Therefore, whether you decide to get married or not, you should have an estate plan.
*For more general information on this topic, see our blog “Unmarried But Living Together?”
Unmarried: Without an estate plan, your significant other will have no right to make medical decisions on your behalf or control your property upon your incapacity.
Married: Your spouse will have the ability to make medical decisions for you without an estate plan.
How can an estate plan help?: If you have an estate plan, you can specify specific individuals or groups of individuals who will be able to make medical decisions for you and handle your affairs upon your incapacity. If you’re not married, it will not be your significant other. Therefore, if you want him/her to have controlling say in these intimate decisions, you need an estate plan if you decide to not get married.
*For more general information on this topic, see our blog “Unmarried But Living Together?”
Unmarried: You and your significant other’s finances, bank accounts, credit card debts, student loans, car loans, and all other money owed is no responsibility of an unmarried partner whose name is not linked to the debt.
Married: If your significant other has debt, including student loans, when you two get married, you could be negatively affected by money owed that you did not borrow or spend. Many factors influence how your significant other’s debt will affect you, such as when the debt was incurred if you were a cosigner, the time when your spouse stops making timely payments, which state you’re married in or live in at the time of death. Additionally, if your spouse passes when debt is owed, the debtor could assert the debt against your spouse’s estate, which could include money and assets you’ve contributed to the purchase of. If you have student loan debt, getting married could affect your ability to be eligible for income-based repayment plans offered by the government.
How can an estate plan help?: To protect yourself from the debt of your significant other, you do not need to have an estate plan. However, if you do decide to get married, you may wish to have an estate plan instead to protect your jointly purchased assets (such as a house) from being subject to a creditor. Additionally, you may wish to have an estate plan to protect your property from being subject to a surviving spouse or significant other’s creditors.
Unmarried: Even if you’re living with your significant other, you will file your taxes without the income and deductions of your spouse. If you have children in common, only one of you can claim the children. This can be used to your advantage or disadvantage.
Married: Depending on your income level, being married could provide tax advantages. Contrarily, depending on your income level, being married could come with tax penalties for having higher combined income.
In the event you are unemployed and do not earn income, by being married, you are legally permitted to have and contribute to an IRA.
How can an estate plan help?: One advantage of an estate plan when you’re married is that you can leave everything (or certain assets to your spouse), and estate tax does not need to be paid on assets left to a spouse upon the other’s death. If you create a Last Will and Testament that leaves property to your spouse-like significant other, he/she will not have the same tax benefits as a surviving spouse. As such, you may wish to transfer property to certain individuals while you’re alive to avoid certain tax consequences.
*The Law Offices of Jennifer G. Tocci, P.C., Jennifer G. Tocci, Esq., and any of its affiliates, co-counsel, and associates do not offer tax advice and the information above is for general information only. It should not be used to substitute accounts, tax advisors, financial advisors, or attorneys.
Unmarried: If you’re unmarried, for all of your significant other’s debt, credit cards, car loans, and bills not paid on time will not affect your credit score unless you are a cosigner or a joint purchaser.
Married: If your significant other has a poor credit score, your credit score won’t be lowered, but it could affect your interest rates and ability to purchase items on credit (i.e.: car loans), obtain mortgages, or open credit cards together.
How can an estate plan help?: In certain circumstances, an estate plan can arrange it so that property purchased by one party can be owned by, transferred to, or inherited by a significant other and family members without being subject to creditors.
These are just a few examples of factors to consider when deciding whether to get married. This blog is merely designed to give a brief overview of common situations. Your estate planning attorney could help you design an estate plan that achieves all of your goals, whether you decide to get married or not. Call the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676 for a personalized assessment of your life plan.
In New York State, the only fireworks that are legally permitted to be set off without a permit or license are Sparkling Devices (aka “sparklers). Sparkling devices are defined by NYS as “ground-based or handheld devices that produce a shower of colored sparks and or a colored flame, audible crackling or whistling noise and smoke.” According to the New York State Department of Homeland Security and Emergency Service, the law limits the type, size, and construction of Sparkling Devices. The law requires that these devices be hand-held or mounted on a base or spike, as well as be no more 500, which consists mostly of pyrotechnic composition. While NYS permits the sale and use of sparklers, counties such as Bronx, Columbia, Kings, Nassau, Suffolk, Westchester, New York, Queens, Richmond, and Schenectady prohibit it. Besides sparking devices, all other types of consumer fireworks, including recrackers, bottle rockets, roman candles, spinners and aerial devices, remain illegal statewide. All fireworks, including sparklers, are illegal to purchase and use on all of Long Island.
In order to sell, distribute, wholesale, and/or manufacture sparkling devices, you must have a special certificate to sell, distribute, wholesale and/or manufacture. Additionally, the sale of sparkling devices is permitted during certain times of the year, which may vary depending on the type of certificate issued.
Can I be charged with a crime for using, buying or possessing fireworks in New York?
Unlawful possession and use of fireworks in New York State can range from a violation to a Class A misdemeanor and cost you up to one-year in jail and a $1,000.00 fine (New York State Penal Law § 270.00).
Additionally, by setting off fireworks without a permit, you could be charged with the crimes of “Unpermitted Use of Indoor Pyrotechnics.” These NYS charges range from a Class A Misdemeanor to a Class D Felony. If convicted, you may be sentenced to jail time for up to 7 years with a $5,000.00 fine! In certain situations, you may have to submit your DNA to the databank, which entails additional fees.
Unlawful sale of fireworks to a minor (under age 18) can range from a Class A Misdemeanor to a Class E Felony and accompanies a sentence of up to 4 years in jail and a $5,000.00 fine.
The fines associated with these crimes are not used to pay for damages caused by illegal use. Instead, they are “punishments” for the crimes committed. In addition to the fines, you may have to pay restitution for any property damage or personal injuries caused by using fireworks.
Can I be charged with a crime if I purchase fireworks in a different state or location?
Absolutely. As a matter of fact, you could require a defense in federal court as a result. If you purchase fireworks in a different state, even if it is legal to purchase fireworks in that state, and transport them into NY, you could be charged with the federal crime of “Transportation of Fireworks into State Prohibiting Sale or Use.” (See, 18 U.S. Code § 836.) If convicted, you could be imprisoned for one year and be subject to a fine. You could potentially be charged with violations of state law, in addition to violations of federal law.
Depending on how the fireworks were used, you could be charged with related or similar crimes as well. If you’ve been charged with a fireworks crime, call the Law Offices of Jennifer G. Tocci, P.C., for a free thirty-minute consultation to discuss your rights and options. (631) 343-7676.
You’ve been in a car accident. You’re injured. Your vehicle is damaged. You’re shaken up. But on top of it all, you’re also angry because even though it wasn’t your fault, you think there is nobody to sue. Maybe you’ve been in a hit and run, and do not know who the perpetrator is. Or perhaps the driver who hit you didn’t have insurance. Is the driver of the vehicle deceased? Are you severely injured and the at-fault driver only has the minimum insurance policy? Whom do you sue? How do you get compensated for injuries from a car accident when you’re in this type of situation? Do you give up, as the situation seems hopeless? The better idea is to contact an attorney, even in theses types of cases.
Your specific situation will depend on the strategy and procedure required for getting compensated for your injuries caused by another person who is unidentified, deceased, uninsured, or underinsured. Every situation could have subtle differences that change the actions you must take. A skilled attorney will be able to evaluate your scenario and handle your case accordingly. Below are some common situations where there appears to be nobody to sue.
Who Will Pay:
The Defendant(s) has/have No Insurance: If the person who caused the accident has no insurance, your insurance policy likely has uninsured motorist coverage and you may have paid for added coverage to compensate you for your injuries. Your New York State insurance policy will have statutorily required uninsured motorist coverage. In New York State, if you have the minimum policy and an uninsured driver hits you, you will be covered up to $25,000 against your own policy. You may pay for more coverage. If you have “Supplemental Uninsured/ Uninsured Motorist (SUM)” under your policy, you will be covered for more than $25,000 in the event that an uninsured motorist hits you. Additionally, you will be covered in the event an underinsured motorist hits you (see below).
Every vehicle in New York State must be insured. It is against the law to not have car insurance and to operate a vehicle in New York State. When you are driving someone else’s car, you could find yourself in trouble if his/her vehicle is uninsured, even if you are unaware of the lack of insurance. [Sidebar: A conviction for a ticket for “Operating a Vehicle without Insurance” in New York State will result in a fine of up to $1,500, in addition to a one-year suspension of your driver’s license and a $750 DMV penalty.] Although it is illegal to operate a vehicle without insurance, it is estimated that 5% of New York drivers do not have insurance.
It is important to have an attorney evaluate your case so that you can make sure all of your avenues for collecting are evaluated. If a member of your household has SUM coverage, you could be covered as well, even though you do not have SUM on your own policy. Additionally your attorney will be able to assess whether going after one defendant’s insurance policy is superior or collecting under your SUM, as you may have the ability to submit a claim against your own SUM where any one defendant does not have insurance.
[Sidebar: It is a smart idea to make sure you have adequate SUM coverage for your personal needs before you are in this situation. You should take into consideration whether you have a family to support, how much money you will need if you are unable to work as a result of the accident, whether you have disability insurance and whether it will cover you if you’re in a car accident, etc. The minimum insurance coverage is $25,000, which you may feel is not enough insurance should you find yourself in this unfortunate situation.]
Hit and Run: In this situation, the person(s) who should be the defendant(s) has/have left the scene of the accident, and therefore he/she/they are currently unidentifiable. There are 3 requirements that must be satisfied to get compensation for a hit and run.
- The accident MUST be reported to police within 24 hours: therefore, if you are in a hit and run, even if you feel at the time that reporting the accident to police is pointless, you should still report the accident, especially if you are injured.
- You must provide a sworn statement to your insurance company as soon as possible: You must provide a sworn statement to your insurance company, even where the insurance company does not request one. As soon as possible usually means within 24 hours or as soon as you are physically able, if you’ve been seriously injured.
- The other driver’s car must have hit you or into another car that actually hit you. This means that where snow or ice fly off of a car into yours, and that person leaves, you will generally not be able to recover.
Not Enough Insurance: If the driver/owner of the vehicle that hit you has insurance, but does not have enough insurance to cover your injuries. In this situation, you must have SUM coverage to proceed against your own policy. Additionally, you may only collect from your SUM policy if the amount of your coverage exceeds the defendant’s coverage. You cannot “stack” policies and collect the amount of them added up. Again, you may be able to collect against a household member’s policy as well.
If you believe you have an underinsured/uninsured motorist claim you usually have to notify the insurance company of a claim or the possibility of a claim within 30 days, or you could be denied for lack of providing notice to the insurance company. Your policy may set forth different rules and requirements unique to you, which must be followed for coverage.
It is permissible to sue someone personally beyond the amount of money available under his or her car insurance policy; however, the claim is usually dischargeable in a bankruptcy proceeding.
[Sidebar: If you collect Worker’s Compensation for the accident, you will almost always not be able to submit a claim through your SUM coverage.]
Defendant’s Insurance Company Claims Bankruptcy: If a defendant’s insurance company claims bankruptcy, you have the option to submit a claim through your uninsured/underinsured policy or proceed against the NYS Liquidation Bureau. Your attorney will be able to evaluate which avenue is a better route for you. A payout by your underinsured/uninsured coverage is usually faster, however, in certain circumstances, you could collect more via the NYS Liquidation Bureau.
Driver/Owner is Deceased: If the person you need to sue has passed away, you can still sue him/her. The representative of his/her estate will handle the matter. If the decedent (deceased person) was the driver, the insurance policy will likely cover claims from the date of the accident. However, if owner of the vehicle that hit you was deceased on the date of the accident, the insurance company will likely not cover the claim because the operator did not have the authority or permission to operate the owner’s vehicle. In this instance, you will probably need to submit through your uninsured/ SUM coverage.
Always read your insurance policy! Your insurance policy will govern what you’re covered for and in which instances. If your insurance policy sets forth different coverage than what is mentioned here or in an online search, your individual policy will apply.
As stated above, every situation is unique, and not all insurance policies are the same. In addition, there are several exceptions that may apply to your circumstance. Contact a skilled attorney. For a free thirty-minute case evaluation, call the Law Office of Jennifer G. Tocci, P.C., (631) 343-7676.
With growing participation on social media and nearly unlimited access to the Internet, cyber, and computer crimes are on the rise. Computer, cyber and Internet crimes may be entirely new crimes or just new methods of committing previously established crimes. Cyber and computer crimes include hacking, introducing computer viruses, interfering with others ability to access computers or the Internet, stealing information from a computer or database, improperly accessing a computer, system, or network. We’re frequently hearing about data breaches on the news. (Remember the Google, IRS, and Target data breaches?) The newsworthy data breach stories are usually large scale, but the New York State and Federal cyber and computer crimes apply to one-time and multiple events and single devices as well as several devices.
For Internet, cyber, and computer crimes, you may be charged under New York State law and/or under Federal law. This means you could wind up defending yourself in State Court or Federal Court. Depending on the allegations, you may be charged with multiple crimes for the same or similar act(s) when it comes to using a computer and the Internet, such as Fraud, Identity Theft, False Personation, Larceny, Bullying, etc. You may be charged separately for the criminal activity in addition to the computer and/or cyber crimes. This blog mostly touches on the crimes unique to the Internet and computers.
You may believe you’re acting anonymously via your desktop, laptop, cell phone, and tablet; however, criminal activity can be traced back to your Internet Protocol Address (IP Address). [Sidebar: Cyber crimes may be committed remotely from your computer. A hacker committing the crime will result in a complete defense to the crime if you had no participation in criminal activity.]
It is important to contact an attorney as soon as you are under investigation or suspect you may be charged in an Internet, cyber, or computer crime because an attorney can ensure your right to privacy is protected when it comes to searching your hard drive and other property. Additionally, having your attorney represent before you are charged makes it more likely that you could avoid a possible felony and misdemeanor prosecution, a criminal record and potentially have the case disposed of prior to arrest.
New York Cyber Crimes
Under New York State law, there are five cybercrime offense categories:
- Unauthorized Use of a Computer (NYPL § 156.05)
- Computer Trespass (NYPL § 156.10)
- Computer Tampering [four degrees] (NYPL §§ 156.20-156.27)
- Duplication of Computer-Related Materials (NYPL §§ 156.29-30)
- Possession of Computer-Related Materials (NYPL § 156.35)
Unauthorized Use of a Computer:
According to the Statute, you are guilty of Unauthorized Use of a Computer when you knowingly use, cause to be used, or access a computer, computer service, or computer network without authorization.
Unauthorized Use of a Computer is a Class A Misdemeanor. If convicted of the New York State Crime, you face a sentence up to a year in prison and a fine up to $1,000. Additionally, you may have to relinquish a DNA sample for the DNA databank, as well as pay the DNA databank fees.
The statute states that you are guilty of Computer Trespass when you knowingly use, cause to be used, or access a computer, computer service, or computer network without authorization and (1) do so with an intent to commit or attempt to commit or further the commission of any felony; and/or (2) you knowingly gains access to computer material.
This crime is a Class E Felony. A conviction accompanies a sentence of one to four years in jail, plus a $0-$5,000 fine.
Computer Tampering in the Fourth Degree (§156.20):
You are guilty of Computer Tampering in the Fourth Degree when you use, cause to be used, or access a computer, computer service, or computer network without authorization and you intentionally alter in any manner or destroy computer data or a computer program of another person.
This is a Class A Misdemeanor. If convicted, you will receive a sentence of up to a year in jail and up to $1,000 fine. In addition, you may have to relinquish a DNA sample for the DNA databank, as well as pay the DNA databank fees.
Computer Tampering in the Third Degree (§156.25):
You are guilty of Computer Tampering in the Third Degree when you commit the crime of Computer Tampering in the Fourth Degree (see above) and:
- you do so with an intent to commit or attempt to commit or further the commission of any felony; or
- you have been previously convicted of a computer crime or computer theft crime; or
- you intentionally alter in any manner or destroy computer material; or
- you intentionally alter in any manner or destroy computer data or a computer program causing damages that add up to an amount of over $1,000.
Computer Tampering in the Third Degree is a Class E Felony, accompanying a jail sentence of 1 to 4 years in jail and up to a $5,000 fine.
Computer Tampering in the Second Degree (§156.26):
You are guilty of Computer Tampering in the Second Degree when you commit the crime of Computer Tampering in the Fourth Degree and you intentionally alter in any manner or destroy:
- computer data or a computer program causing damages that add up to more than $3,000; or
- computer material that contains records of the medical history or medical treatment of an identified individual causing, or allowing for the cause of suffering a serious physical injury to that/those person(s).
Computer Tampering in the Second Degree is a Class D Felony. If convicted, you face a sentence of between 1 and 7 years in jail and a fine of up to $5,000.
Computer Tampering in the First Degree (§156.27):
You are guilty of Computer Tampering in the First Degree when you commit the crime of Computer Tampering in the Fourth Degree and he intentionally alters in any manner or destroys computer data or a computer program so as to cause damages in an aggregate amount exceeding fifty thousand dollars.
This is a Class C Felony. If convicted of Computer Tampering in the First Degree, the sentence is 1 to 15 years in jail and a $5,000 fine.
Unlawful Duplication of Computer-Related Material in the Second Degree (§156.29):
You are guilty of Unlawful Duplication of Computer-Related Material in the Second Degree when having no right to do so, you copy, reproduce or duplicate in any manner computer material that contains records of the medical history or treatment of an individual or individuals with an intent to commit or further the commission of any computer crime.
This is a Class B Misdemeanor. If you’re convicted of this crime, you face up to 3 months in jail and up to a $500 fine.
Unlawful Duplication of Computer-Related Material in the First Degree (§156.30):
You are guilty of Unlawful Duplication of Computer-Related Materials in the First Degree when having no right to do so, you copy, reproduce or duplicate in any manner:
- any computer data or computer program and intentionally and wrongfully deprive or appropriate from an owner an economic value or benefit of over $2,500; or
- any computer data or computer program with an intent to commit or attempt to commit or further the commission of any felony.
If you are convicted of this Class E Felony, you face between one and four years in jail and a $5,000 fine.
Possession of Computer-Related Materials:
You are guilty of Criminal Possession of Computer-Related Material when having no right to do so, you knowingly possess, in any form, any copy, reproduction or duplicate of any computer data or computer program which was copied, reproduced or duplicated in violation Unlawful Duplication of Computer Related Material in the First Degree (see above), with intent to benefit yourself or a person other than an owner.
If you are convicted of this Class E Felony, you face between one and four years in jail and a $5,000 fine.
The crime of Cyber Harassment, or Aggravated Harassment in the Second Degree, has been determined unconstitutional by the New York Court of Appeals for being vague and overbroad. See, People v. Golb. The statute states that it is illegal to communicate, anonymously or otherwise, by telephone, computer, or any other electronic means, or by mail, or by transmitting or delivering any other form of communication, a threat to cause physical harm to, or unlawful harm to the property of, such person, or a member of such person’s same family or household. This does not mean that you’re free to harass and annoy people via the Internet. The Court of Appeals quoted in its decision rational from another case, People v Dietze that “any prescription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.” Harassing and threatening words could still inflict injury and evoke immediate violence. Additionally, while you cannot be convicted of this specific statute, Cyber Harassment could still land you charged with other types of charges, as well as result in orders of protection being issued against you. If your conduct in “real life” could cause you to be charged with a crime, such as a hate crime, or harassment, just because your conduct was committed via the Internet does not prevent you from being charged.
New York Internet Sex Crimes
In addition to the already established sex crimes, a person engaging in online sex can be charged with cyber-based crimes including:
- Disseminating indecent material to a minor;
- Promoting an obscene sexual performance by a child;
- Possessing an obscene sexual performance by a child;
- Promoting a sexual performance by a child; and
- Possessing a sexual performance by a child.
Defenses to Internet and Computer Crimes (§156.50):
In addition to the regular defenses that are available to defend crimes, computer-specific defenses include:
- Reasonable belief that you had authorization to use the computer;
- Reasonable belief that you had authorization to alter or destroy a computer data or computer program;
- Reasonable belief that you had right to copy, reproduce or duplicate computer data or computer program.
These defenses could be a complete defense (relieving you of liability of the entire charge) or as a partial defense (lowering the charge for which you could be found guilty).
United States Federal Cyber Crimes
Because the Internet frequently crosses state lines, Internet and Computer crimes could land you facing federal charges. A strong defense can help minimize or eliminate the possible fines, penalties and jail time accompanying your charges, whether you’re defending yourself in state court or federal court.
There are many different kinds of computer and Internet-based crimes, which can result in significant fines and even jail time. The federal statutes cover offenses that involve:
- mail fraud;
- wire fraud;
- computer fraud;
- access devices fraud;
- internet fraud;
- injury or destruction to communication lines, stations, or systems;
- illegal interception of wire, oral or electronic communications;
- illegal manufacture, distribution, possession and advertising of illegal devices for the interception of wire, oral or electronic communications;
- unlawful access to stored communications;
- illegal installation or use of a pen register device;
- criminal copyright infringement;
- website forgery;
- filter evasion;
- link manipulation;
- trafficking in counterfeit goods or services;
- computer hacking;
- trafficking in counterfeit labels;
- trafficking in recordings of live musical performances;
- launching spam email attacks;
- identity theft;
- credit card fraud;
- unlawful possession or use of access devices;
- phishing (see the below definition);
- sale of counterfeit goods over the Internet;
- software piracy;
- computer game piracy;
- video game piracy;
- music piracy;
- internet pornography;
- possession of child pornography;
- use of the Internet to disseminate child pornography;
- instant messaging sexually explicit material to children;
- online child sex solicitation;
- crimes against computer and Internet users;
- hacking and computer sabotage;
- internet gambling;
Unlawful Internet Gambling Enforcement Act:
There are no New York State Laws prohibiting Internet gambling. Therefore, crimes involving Internet gambling are likely going to fall under the Internet Gambling Enforcement Act, landing you in federal court. The law prohibits gaming businesses from knowingly accepting payments in connection with unlawful Internet gambling.
Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003:
The CAN-SPAM law was designed to stop marketers from using fraudulent or misleading representation to hook customers and to discourage senders from appropriating email addresses from sources that are not their property, such as Internet Server Provider email directories.
Under this Federal Act, it is illegal to:
- use a hijacked computer to send multiple spam emails;
- send multiple emails using IP addresses that the sender represents falsely as being his/her property;
- disguise the source of the emails by routing them through other computers to deceive their recipients as to their origin;
- send out communications via multiple mailings with falsified information in the header
- distribute multiple emails through various email accounts obtained using falsified account registration information.
Phishing, a type of identity theft, is defined as the fraudulent practice of sending emails purporting to be from reputable companies in order to induce individuals to reveal personal information, such as passwords and credit card numbers. While there is no Federal statute that expressly bans phishing by name, it is prohibited by CAN-SPAM and other fraud and identity theft laws, see, 18 U.S.C. § 1028.
If you’ve been charged with a computer, cyber, or Internet crime, call a skilled attorney who is admitted to practice in both New York State Courts and the Eastern District of New York (Federal Court). The Law Offices of Jennifer G. Tocci, P.C. can represent you in both state and federal court.
A parent passing away is always difficult. Having to gather and administer his/her assets can be an added burden during this tough time. An estimated 80% of Americans die each year without having a will or estate plan. Correspondingly, it is more likely than not that you could find yourself in a situation where your parents pass away without a will. In legal terms, when a person dies without a will this is referred to as having died intestate. In New York, there are laws that have been enacted to ensure you and your family members inherit your parents’ property and assets when they pass away and do not have a will. These laws set forth which family members will inherit which portions of your parent’s estate.
When a person passes away without a will, Letters of Administration will need to be granted to an Administrator. This means a close family member requests permission from the court to have the legal authority to administer the decedent’s estate. Once the court grants that authority, Letters of Administration are granted to the Administrator. An Administrator is a legal representative, who essentially steps into the shoes of the decedent (the person who passed away) and can transfer, sell, and distribute property with the same authority as the decedent. This is a similar process to probating a will, except your parent’s property, will pass according to New York State law instead of his or her individual wishes. Without Letters of Administration being granted by the Court, your family could be unable to access your deceased parent’s individually owned property. This may leave you unable to sell or transfer property and to access bank accounts. Further, if your parent had any previously pending lawsuits or a potential wrongful death action, there will be nobody who can legally sue until Letters of Administration are granted.
What do I do first?
First, be sure there was, in fact, no will. Check all of the places where your parent may have saved important documents. If your parent had a safe deposit box, a family member should petition the court for an order to open the safe deposit box to search for a will and take an inventory of belongings. Your estate attorney will be able to perform this legal work on your behalf. If your parent had an attorney, call the office to see if the firm drafted a will. Check with the Surrogate’s Court in the County where your parent resided to see if one has been filed. Finding a will in the middle of an administrative proceeding can be a hassle. It is a smart idea to thoroughly ensure there was, in fact, no will.
Don’t take assets that you easily have access to, such as cars and cash. [Sidebar: it is a crime in the State of New York to take assets from the decedent if they do not legally belong to you, even if you think you should inherit them.]
Obtain a few copies of certified death certificates and the funeral bill. You may make funeral arrangements prior to contacting your attorney. Search for safe deposit box keys, bank and stock information, and debt and bill information. If you are able, you should safeguard any assets that may be damaged, lost or stolen. Do not use credit cards or remove cash from bank accounts solely in the decedent’s name. Do not drive the decedent’s vehicles or use any of his or her property until you legally have the authority to do so.
Contact an attorney at your earliest convenience. Even if you call just to inform your attorney that you had a death in your family and expect to be in need of services. They will usually be able to preliminarily point you in the right direction according to your current situation. After the services are complete and your life is less hectic, you can sit with your attorney to plan the next steps.
Who will inherit my parent’s property and assets when there was no will?
If your parent passes away without a will, his/her children and surviving spouse are entitled to inherit the estate assets. In New York State, when the decedent (the person who passed away) did not leave a will and:
- When there is a surviving spouse and no children: the spouse will inherit the estate assets;
- When there are surviving children and no spouse: the children will inherit the estate assets, equally;
- When there is a surviving spouse and surviving children: the surviving spouse will inherit the first $50,000 of the decedent’s estate and one-half (1/2) of the remaining estate funds. The surviving children inherit the other half of the remaining estate funds, equally.
If there is just a spouse and no children left behind, that spouse will inherit everything. It does not matter that the decedent has parents or siblings that outlive him/her. Parents, siblings, cousins and other family members are not entitled to inherit property that is solely in the decedent’s name.
Similarly, where there are surviving children and no spouse, the surviving children will have the right to inherit all of the property, despite the existence of any other family members.
Where there is a surviving spouse and children, the surviving spouse will inherit the first $50,000 of the decedent’s estate and then half of the remaining estate funds. The children will inherit the other half of the remaining estate funds, equally. However, keep in mind that this only applies to estate assets. Your parent could have had a house and other assets, none of which the children are entitled to inherit because they may not be estate assets.
[Sidebar: You must legally be a child of the decedent and a legal spouse in order to inherit under the laws of intestacy. Your attorney can help you identify which family members are legally entitled to inherit.]
Which assets can be inherited?
The laws of intestacy only apply to property legally owned individually by the parent who passed away. Property not owned by that parent may not be considered an estate asset, and therefore is not subject to be inherited as outlined above. If one of your parents passes away without a will, and his/her spouse is still alive, the spouse may legally take ownership of jointly owned property. In some instances, this can happen by operation of law, meaning that the ownership automatically passes to the spouse- excluding that property from the estate subject to be inherited. Married couples that own houses as tenants by the entirety will automatically inherit the entire property. The house owned by a parent who passes away, therefore, may not leave a home that can be inherited by his/her children.
Below is a list of assets that generally do not pass under the laws of intestacy:
- Property in a living trust
- IRA funds, 401k or other retirement accounts
- Life insurance proceeds
- Securities held in a transfer-on-death account
- Payable-on-death bank accounts
- Property owned with someone else in joint tenancy or tenancy by the entirety
These assets will pass to the co-owner or surviving beneficiary the decedent previously named and are unaffected by the process of an intestate will.
Discussing your situation with your estate attorney will help you identify which assets and property you are specifically entitled to inherit.
What are my parent’s unmarried partner’s rights?
Usually, your parent’s unmarried significant other has no claim to property owned solely by your parent, even where the significant other was using your parent’s property. Naturally, your parent’s unmarried significant other is entitled to all property in the unmarried spouse’s name. If your parent was living with his or her unmarried significant other, but the house belonged solely to your parent, you will need to get Letters of Administration to evict the partner, should he or she not leave voluntarily. The partner will likely have belongings in the home that he/she paid for and own. Consequently, the partner could have a valid claim to possessions in the home. Property that is jointly owned by the couple may not be considered an estate asset. Alternatively, the surviving partner has a claim for at least his/her percentage of ownership in the jointly owned property.
What if my parent leaves behind minor children?
If your parent leaves behind minor children and that child’s other parent is still alive, the surviving parent will have the first rights over all other people, usually despite objections, to raise the minor children (assuming his/her parental rights were not terminated by a court of law). However, if the parent passes away and leaves no other parents and no documents expressing wishes for a guardian, a guardian will need to be appointed by the court. If there is a close family member who is able to care for the child and provide a good home, the courts prefer to place the child in the care of the family. If not, the child could be placed with more distant family members, close friends of the decedent, or in foster care.
Just because a child is a minor, it does not limit their inheritance. However, their portion will need to be placed in a trust, to be protected until the child is legally old enough to make financial decisions for him/herself. A trustee will need to be nominated to control, preserve and invest the funds and assets in the best interest of the child.
If my parent had no known property, do we need to go to the Surrogate’s court?
If your parent left property behind that did not automatically pass to another person, someone will need to petition the court to be legally named the Administrator. Without a legally authorized Administrator, even a spouse may be unable to sell certain property and access bank accounts, money market accounts, Certificates of Deposit, etc. However, if your parent only owned a car worth under $25,000, the surviving spouse could transfer the title to his/her name through the DMV.
If your parent owned no property individually, you may not need to petition the court for Letters of Administration. However, it may be a smart move to obtain Letters of Administration, should something come up in the future. For example, even if your deceased parent owned no estate property, in order to start a wrongful death lawsuit on behalf of your deceased parent or handle his/her pending legal matters, the estate will need an Administrator.
[Sidebar: where your parent’s estate is less than $30,000, whether he/she had a will or not, a “small estate” or a Voluntary Administration proceeding can be filed. This type of proceeding is generally quicker and less expensive.]
Every single situation is unique and should be assessed by a skilled attorney for a legal analysis. This blog does not mention every topic, nor does it outline the topic in full detail. Not everyone owns the same assets. Those assets may be owned in special forms. Additionally, every family has different members and diverse relationships. For personalized advice and administration, call the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676.
New York State Workers’ Compensation entitles employees to benefits for work-related injures, regardless of who is at fault. It facilitates payment for injuries, eliminating the lengthy process of a lawsuit and the requirement to prove liability. In exchange, New York Law protects employers from being sued by their employees for illnesses and accidents that occur on the job if they carry Workers’ Compensation Insurance. In New York State, almost all employers must maintain Workers’ Compensation Insurance. This compensation is the typical and exclusive remedy for work-related injuries and illnesses. If there are Worker’s Compensation benefits available, the employee is unable to commence a lawsuit against his/her employer, except under rare and specific circumstances.
[Sidebar for business owners: Almost all businesses with employees require Workers’ Compensation Insurance. Your business must be legally exempt to not carry this insurance.]
You must actually be considered an employee to be covered under the employer’s Workers’ Compensation Insurance. Your attorney will be able to assist you in determining whether you are considered an employee under the workers compensation law. For example, volunteers, New York City police officers, firefighters and sanitations workers are among the few that aren’t covered. Contrarily, unpaid student interns are generally considered employees under the definitions of the Workers’ Compensation Benefits.
What are the Rare Circumstances Where a Lawsuit May Also Be Commenced?
Although Workers’ Compensation was created to prevent employee-employer lawsuits, there are certain circumstances where an injured employee has a right to commence a personal injury lawsuit. In order to have a personal injury lawsuit, your attorney must be able to prove your injury/illness was due to the negligence of another person. Injuries/illnesses involving these circumstances may permit you to file a personal injury lawsuit, despite having collected Workers’ Compensation benefits:
- Injuries involving a defective product;
- Injuries involving a toxic substance;
- Injuries occurring due to an employer’s intentional conduct;
- Injuries occurring in a workplace that does not have Workers’ Compensation Insurance (or has failed to obtain the insurance);
- Injuries resulting from the negligence of a third-party
If you feel your injuries fit into any of these criteria, you may be able to begin a personal injury lawsuit. You should contact a skilled attorney in order to help you assess and build your case. [Sidebar: there are short time restraints for filing Workers’ Compensation Claims, and in cases where you may sue your employer or a third-party, a notice of claim may need to be filed shortly after the incident. It is important to consult with your attorney as soon as you are able.]
With a personal injury lawsuit, you are not limited to the amount of money you can receive, unlike with Workers’ Compensation. In a personal injury lawsuit, you are able to sue for lost wages, reimbursement from medical treatment, damages from pain and suffering, and compensation for permanent impairment, in addition to other damages. In Worker’s Compensation claims, you cannot collect money for pain and suffering.
[Sidebar: New York State Disability Insurance is not the same as, or governed by the same laws as Workers’ Compensation.]
Lawsuits Against Third-Parties:
Where you were injured on the job, but a non-employer shares the fault, you may sue the third-party despite collecting Worker’s Compensation benefits. Contractors or subcontractors on a job site may be at least partially at fault, having contributing to your accident. The Workers’ Compensation Laws do not bar you from suing legally responsible contractors and subcontractors, who do not employ you. Similarly, where you are in an automobile/truck accident on the job, and you collect Worker’s Compensation benefits, you are not barred from suing a negligent driver. Additionally, if you slip and fall on the property not owned by your employer while on the job, even if you’re collecting Workers’ Compensation you might still be permitted to sue the property owner.
A skilled attorney will be able to assess your case to see if you are eligible to start a personal injury action for injuries that have been covered by Workers’ Compensation. The Law Offices of Jennifer G. Tocci, P.C., handles the third-party/personal injury lawsuit and works with a Workers’ Compensation law firm that handles Workers’ Comp., claims. For a free case evaluation regarding a personal injury lawsuit and/or a referral to our trusted Workers’ Compensation law firm call the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676.
We seem to all know that we have a right to a speedy trial, but what does this actually mean? What is a speedy trial? What happens if you don’t get what you’re entitled to? Can you get your case get dismissed? If your case does get dismissed, can you be re-charged?
The Sixth Amendment of the U.S. Constitution provides that each citizen has the right to a speedy trial. But what did the authors of the Constitution intend to mean as “speedy?” Under federal law, there is no precise designation of what constitutes a speedy trial. Under New York State Law, what is considered a speedy trial is more clearly defined in order to uphold each New Yorker’s constitutional rights.
Why Do We have this Right?
The right to a speedy trial is afforded to us in order to prevent the government prosecutor from delaying a criminal trial arbitrarily or indefinitely. It forces the prosecutor to build a case against you within a reasonable amount of time. It also aids your ability to defend yourself against criminal charges. For example, witnesses may not be able to remember facts as clearly if they have to wait too long to testify at trial, which may hurt your case and give the prosecution an unfair advantage.
How Do I Know My Right to a Speedy Trial was Violated?
The factors considered to determine if your right to a speedy trial were violated are evaluated by the totality of the circumstances and include:
- Length of the delay
- Reason for the delay
- Whether you asserted your right
- Prejudice to you
The New York Laws express specific time restraints for a speedy trial. If you are accused of a Felony, the state must provide you with a hearing or trial date no more than 180 days from the date the alleged criminal activity occurred- unless you’re charged with a Class A Felony. For a misdemeanor charge, depending on the seriousness of the crime, the time ranges from 60 to 90 days. If you’re charged with a violation, the hearing date/ trial must be within 30 days. Traffic infractions are not subject to the speedy trial protections.
If you’re incarcerated, instead of merely charged, you must be released on bail or your own recognizance if you are held beyond a certain period of time. For a felony, you can only be held for 90 days or you have to be released on bail or your own recognizance. For a Class A misdemeanor the government has 30 days; For a Class B Misdemeanor the government as 15 days, and for a violation, it has 5 days.
[Sidebar: Delays caused by the defendant do not count towards speedy trial defenses. Therefore, requesting conferences and adjournments does not count towards the time calculated.]
How is the Time Calculated?
The speedy trial time starts to run from the day after the accusatory instrument is filed with the court. If you were given a desk appearance ticket instead of arrested, the time starts from the arraignment. A grand jury filing an indictment also starts the clock. [Sidebar: Time spent by the government before an arrest does not count towards a speedy trial defense. Instead, the delays before an arrest count towards the statute of limitations for the particular crime.]
Once the District Attorney/prosecutor files its certificate or readiness (declaring it is ready to proceed to trial) the government has satisfied its burden to provide a speedy trial if completed within the permissible time fame. If you are not ready to proceed to trial by the time that the prosecutor is, you may be able to request an extension of time- but that time will not count against the government once it is ready. However, the government is required to maintain its readiness.
What are Exclusions to the New York Speedy Trial Laws?
The reasons listed here are some of the circumstances where the time delay cannot be used to assert a defense that you were not provided with your right to a speedy trial. As we discussed above, delays caused by or requested by you are not counted towards the speedy trial time. This is true whether you’re requesting an adjournment (extension of time), time to negotiate with the District Attorney/prosecutor, or you fail to appear. Your failure to appear because you are incarcerated in another jurisdiction does not excuse your absence for purposes of having the time delay count against you instead of the government. Almost always, not having an attorney representing you does not count towards to government’s time to provide a trial. Delays caused by court proceedings in your case such as pre-trial motions and hearings are exempt from the time. A period in which a family offense petition is before the family court until an accusatory instrument or indictment is filed is exempt. The time calculated towards an Adjournment in Contemplation of Dismissal (ACOD) is also exempt.
Furthermore, the New York speedy trial release provisions do not apply when you’re being held on other charges where the speedy trial time has not elapsed. Additionally, if you are serving a term of incarceration for another criminal case, or apprehended for violating a conditional release the speedy trial provision does not apply.
How Does it Affect My Case If My Speedy Trial Rights have been Violated?
If your right to a speedy trial has been violated, you must assert that your right to a speedy trial has been violated; the court will not dismiss your case automatically. Your attorney usually files an application to the court requesting that the case be dismissed because your rights were violated. The initial burden is on the defendant to show that his/her speedy trial rights were violated. The burden then shifts to the government to show that the time has not yet lapsed, that the time delay was the excluded or tolled from the statutory speedy trial framework, or that the government was ready. If the court finds that your rights were violated, the remedy to this is dismissing the case, due to it being wholly unfair to the defendant. If your case is dismissed because your right to a speedy trial was violated, it is usually dismissed with prejudice, meaning that the government cannot bring charges against you for the same crime.
If you believe you have a speedy trial defense to your case, you should consider hiring a skilled attorney to evaluate and handle your case. There are procedural and factual components that are unique to each individual case. For a free case evaluation, call the Law Offices of Jennifer G. Tocci, P.C., (631) 343-7676.
Cohabitating couples do not have the same rights and protections as married couples. Married couples own property differently than cohabitating couples. (Sidebar: There is no common law marriage in New York, and no matter how many years you live with your significant other, it will not change your marital status.) Many of my clients report that they have agreed (usually via unenforceable handshake) on how they will split property in the event of a breakup; however, those same couples do not have any protections in the event one of the passes away or becomes incapacitated. I hear things like, “We’re not worried; we’ll get married before we have to think about those things.” Unfortunately, not knowing your rights and properly planning for your death and/or incapacity can leave your significant other in a mess.
The hard reality is that if you or your significant other passes away, neither of you will be able to inherit the other’s property. Further, without being vigilant, a surviving significant other may find him/herself without ownership of his/her own property.
Below are a few things to think about. Keep in mind every single situation is different. If you think you may be in need of estate planning, you should speak with an attorney.
When married couples purchase property, they usually own it as “tenants by the entirety.” This means that each person owns 100% of the property and if one spouse dies, the other spouse by operation of law (automatically) owns 100% by his/herself. Frequently, when one party of an unmarried and cohabitating couple dies, the surviving party does not inherit ownership of the entire property. At times, unmarried and cohabitating couples do not own the same share of the property as each other. In either event, you could find yourself sharing your home with his/her parents, siblings, children, and other heirs.
What can you do to make sure your home passes according to your wishes? If you haven’t purchased the property yet, you can speak with an attorney about your purchasing options to make sure that your property will pass the way you wish. Alternatively, you can make a will to ensure that your property passes to the person(s) of your choosing.
(Sidebar: subsequently getting married after purchasing property as an unmarried couple may not “fix” the situation.)
Unmarried and cohabitating couples often have the relationship of a married couple. If they were to become incapacitated, ill or injured, they would want their significant other making healthcare decisions on their behalf. However, without being married or having proper estate planning, your adult children, parents, siblings and other relatives will legally be able to make healthcare decisions on your behalf before your significant other. Many hospitals and healthcare facilities will not disclose important medical information to unmarried significant others without proper documents.
During periods of incapacity, your unmarried significant other will likely not be able to make important financial decisions on your behalf without a power of attorney designating him/her as an agent. Again, your adult children, parents, siblings, and other relatives may be making decisions for you where needed. In certain cases, such as gaining access to bank accounts, running businesses, paying bills could be nearly impossible for any person without proper documentation.
Bank Accounts/ IRAs/ CDs/ Stock Accounts, etc.:
If bank accounts are not joint accounts, bank accounts in one party’s name will not pass to their unmarried significant other without proper wills and beneficiary designations. The same goes for IRAs, CDs, stock accounts and other investments.
Life Insurance Policies:
If there is no named beneficiary on life insurance policies, without a will this policy will not pass to a significant other.
Your personal property, such as cars, clothing, and other belongings will not pass to your significant other without proper documentation. In the event your significant other passes away, you could find yourself in a situation where items you’ve paid for or contributed to the purchase of are not legally yours.
(Sidebar: estate planning may also be used to ensure that your unmarried significant other does not inherit all or select portions of your property. Sometimes there are important reasons you have not tied the knot.)
What Should You Consider?
If you are unmarried but cohabitating with your significant other, your attorney will be able to evaluate what you own, together and separately, and construct a will, deed, and other documents to make sure your wishes play out.
If you’re unmarried but cohabitating, you should consider:
- Drafting and executing your Last Will & Testament
- Executing a Power of Attorney
- Designating a Healthcare Proxy
- Designating beneficiaries where necessary
Depending on what you own and how you own it, you will have specific needs to allow your property to pass as you wish. For personalized advice and planning, call the Law Offices of Jennifer G. Tocci, P.C., for a free 30-minute consultation (631) 343-7676.
There is new case law that is favorable to plaintiffs in negligence/ personal injury cases. The New York Court of Appeals recently removed a hurdle for Plaintiffs in these cases. Plaintiffs no longer have to prove that they were not negligent when suing another party for negligence. Due to conflicting case law, this new decision removed a large burden for people seeking damages in civil litigation.
What is Summary Judgment?
Frequently, after negligence/personal injury lawsuits are started, they end with a summary judgment motion, prior to the case proceeding to trial. During litigation, cases can be disposed of without going to trial if a summary judgment is granted. Summary Judgment is a procedural device used during civil litigation to promptly and expeditiously dispose of a case, or portions of it, without a trial When there are no more factual issues that remain and only issues of law exist, the judge can decide the case and the case will not proceed to trial. It is not uncommon for both parties in a lawsuit seek a summary judgment. Evidence that was prepared for trial, affidavits, and depositions all may be considered in order to grant a partial summary judgment.
Good News For Plaintiffs
In New York, in order to receive a partial summary judgment in a negligence case, the Plaintiff formerly had to prove that they themselves were not negligent. The Plaintiff was tasked with the “double burden” of disproving his/her own negligence in order to win a partial summary judgment. This month, the New York Court of Appeals decided that this was an unfair burden on the Plaintiff. Now, a Plaintiff can seek a partial summary judgment without having this burden of proving themselves not negligent. Due to the new case law, even where a Plaintiff is negligent, he/she can still recover for damages as long as the other side was negligent. This frees Plaintiffs of an unfair burden. This new law will help expedite the settling of more cases and allow other cases to proceed to trial that would have previously been dismissed. If a Plaintiff doesn’t want to continue to trial they are no longer subject to unfair burdens of proof that work against them.
If you or a loved one has been in an accident, and you wish to speak to a skilled attorney about your rights, call the Law Offices of Jennifer G. Tocci, P.C., for a free thirty-minute consultation (631) 343-7676.
As Americans, we have a constitutional right to privacy, protecting us from unreasonable searches and seizures of our private property. That means that evidence found during an unreasonable search may not be used against a defendant.
First let’s define “search,” “seizure,” and “unreasonable.” A search is where the police intrude into an area where a person has a reasonable and justifiable expectation of privacy. A seizure is where the police exercise control over a person or thing. Less clearly defined is the word, “unreasonable,” which depends largely on the circumstances of the individual situation. Frequently, searches and seizures conducted without a warrant are considered unreasonable. However, there are six circumstances where searches and seizures may be legally conducted without a warrant. This article will provide a general overview of searches and seizures of property and evidence (as opposed to the seizure of a person [arrests & detentions]).
When can the Police Search and Seize your Property Without a Warrant?
In your Home:
It is not enough that someone has an expectation of privacy in the place searched or the item seized. The Supreme Court has imposed a requirement that a person can only complain about an evidentiary search or seizure if it violates his or her own reasonable expectation of privacy. Whether a person has a reasonable expectation of privacy depends on the totality of the circumstances. The courts have held that individuals have reasonable expectations of privacy where he/she owned or had a right to possession of the place searched and that place was, in fact, his/her home. Additionally, overnight guests of an owner generally have an expectation of privacy in that location. Generally, visitors do not have an expectation of privacy in someone else’s home, even if the police search the place without a warrant. The visitor must show that his/her own expectation of privacy was violated.
Additionally, the expectation of privacy does not extend to the areas outside of the house and especially does not extend to areas outside of the fence. Garbage may be searched without a warrant. In certain circumstances, structures on your property could be legally searched without a warrant depending on factors such as the distance from your place of living, whether they’re on the inside of a fence, if it is used for activities of the home, and if the resident has taken steps to protect the structure from the view of people passing by.
The police may approach a home in the hopes of speaking to a resident. Therefore, if a police officer is invited in, and contraband is plainly visible, it could lawfully be seized. In certain circumstances, it could lead to enough probable cause for the police to search the property, depending on the facts and the scope of the search.
While the police are permitted to knock on the door, they are not allowed to bring a drug dog sniffing around the entry of the residence without a warrant.
Items Held Out to the Public:
The courts have held that a person does not have a reasonable expectation of privacy for objects held out to the public. What are items held out to the public? The sound of someone’s voice, one’s handwriting, paint on the outside of a car, the smell of one’s luggage or car, account records held by the bank, or magazines offered for sale are a few.
In an Automobile:
Stopping a car is a seizure for purposes of the Fourth Amendment of the United States Constitution. Therefore, generally, the police may not stop a car unless they have at least reasonable suspicion to believe that a law has been violated. (Sidebar: Police roadblocks to stop cars without individual reasonable suspicion that the driver has violated some law is valid where there is a neutral, articulable standard for stopping the cars and closely related to a particular problem pertaining to automobiles and their mobility.)
In New York, legally, you have a lower expectation of privacy in your vehicle than in your home. Therefore, when you are pulled over, there are several situations where the police may search your car without requiring a warrant. Although the police must have “reasonable suspicion” to pull you over, they may search your car without a warrant if they have a legitimate, fact-based reason for searching it. The automobile exception rule allows police to search your vehicle without a warrant if the police reasonably believe that you have evidence of a crime or contraband. They are able to search your car specifically to look for that item. If the police have full probable cause to search a vehicle, they can search the entire vehicle, including the trunk and all containers in the vehicle that might contain the object for which they are searching. As in your home, (as we touch on above) if you are pulled over and you have contraband in plain view, those items are fair game to be seized and used as evidence against you.
Unlike in your home, where a police officer lawfully pulls over a vehicle and doesn’t extend the stop time, a drug detection dog may sniff. Drug dog sniffs made during a routine traffic stop can form the basis for probable cause to justify a search of your automobile.
The Six Exceptions to the Warrant Requirement:
Search Incident to a Lawful Arrest:
If an arrest violates the Constitution, then any search incident to that arrest also will violate the Constitution. However, the police may conduct a search incident to a lawful arrest. The police may search the person and areas into which he might reach to obtain weapons or destroy evidence (known as his/her “wingspan”). The arresting officers do not need to actually fear for their safety or believe that they will find evidence of a crime in order to conduct a search after a lawful arrest. The police may also make a “protective sweep” of the area beyond the defendant’s wingspan if they believe accomplices may be present.
After a lawful arrest is made of an occupant in an automobile, the police may search the interior of the vehicle incident to the arrest if at the time of the search the arrestee is still unsecured and could gain access to the interior of the vehicle; or the police reasonably believe that the evidence of the offense for which the person was arrested may be found in the vehicle. The police may search the entire vehicle that is being impounded after a lawful arrest.
When You Provide Consent:
This may seem obvious, but it’s worth mentioning that if you provide the police with consent to search your property, anything found during that search may be used against you. Consent may be express or implied. Therefore, the only way to consent isn’t by verbally providing it, or signing documents. In certain situations where you are driving an automobile under the influence of drugs or alcohol implied consent may be deemed provided.
Where the police are lawfully present, and contraband or evidence of a crime is plainly visible, they may lawfully seize it without a warrant. Additionally, the incriminating nature of the item or the illegality of it must be immediately apparent. For example, if you call the police for a domestic violence incident and invite the police into your home and you have cocaine in plain view, you can be arrested for possession of an illegal substance, even though the police did not have a warrant to search your home.
Stop and Frisk (also known as Terry Stops):
The police may stop and frisk you if they reasonably believe you have been involved in a criminal act. The encounter is supposed to be brief and is limited to a pat down of the outer clothing to search for weapons. However, the police officer may reach into an area of the suspect’s clothing if he has specific information that a weapon is hidden there, even if that information comes from an informant’s tip lacking sufficient reliability. The police officer may then seize any item he/she reasonably believes, based on “plain feel” is a weapon or contraband.
Stop and frisk apply to those pilled over properly for a traffic violation, even if the officer does not have a suspicion of criminal activity.
Emergencies and Hot Pursuit:
Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure. The scope of the search may be as broad as may reasonably be necessary to prevent the suspect from resisting escape. When the police have reasonable cause and attempt to make a warrantless arrest in a public place, they may pursue the suspect into a private dwelling.
Emergencies that threaten health or safety, if not immediately acted upon will justify a warrantless search. This includes situations where police see someone injured or threatened with injury. However, in New York, where the police are called to a drug or alcohol emergency, the 911 Good Samaritan Law prevents the officer from making arrests for certain drug possession, drug paraphernalia, and underage consumption of alcohol that may be in plain view at the scene. (For more information, see our past article on the 911 Good Samaritan Law.)
If you have been arrested, speak with a skilled attorney. Contact the Law Offices of Jennifer G. Tocci, P.C. to discuss your rights and options (631) 343-7676.
Why millennials need an estate plan
Young people often have a false sense of security that they do not need a will. Due to this, an estimated 78% of millennials do not have wills, which isn’t surprising when about 60% of all Americans do not have an end-of-life plan.
It is crucial to have an end-of-life plan in order to protect your wishes for your children and your assets. In addition to a will, there are other documents that can protect you and your family in case of death, or even an accident or serious illness that may leave you incapacitated. It is recommended to review your will every ten years to see if it still meets your needs. As you go through life you may acquire new assets, get married and have children. Updating your will every ten years or after major life changes will ensure that nothing important is neglected.
Millennials often believe they do not need a will because of the following:
- Millennials think it’s too early to worry about creating a will since they believe they have many years ahead
- They’re having children later in life
- Millennials are buying houses and accumulating assets later in life
Millennials use the above reasons to justify not having a will, however, there are many reasons estate planning is imperative to protecting yourself and your loved ones, even if you feel you don’t have assets and plenty of time in the future to plan.
Making Healthcare Decisions
Once you turn 18, your parents may be unable to make any healthcare decisions on your behalf. Car accidents, serious illnesses, and unforeseen events are a part of life, even for a young, healthy person. Creating a healthcare power of attorney can provide someone you trust with the power to make decisions for you if you are unable to make them for yourself. These decisions can range from speaking directly to healthcare providers to donating your organs or making choices about life-sustaining treatment. An attorney can ensure that your wishes are carried out if you’re ever unable to make healthcare decisions for yourself.
Protecting Your Assets
Millennials may have more assets than they realize. Your assets can include cars, houses, 401k’s, bank and savings accounts, and valuable items. Working with an estate lawyer will help you identify what your assets are and arrange it so that upon your death they go to the people you choose. What you have is important to your loved ones, and it is easier on them to obtain these assets based on your wishes and not the laws of the state.
Security for Unmarried Couples
Millennials tend to get married later in life compared to previous generations, or live with a long-term partner but remain unmarried. This bears the risk of not having the typical protections of a legal marriage. Creating a healthcare power of attorney and a financial power of attorney will allow one’s partner to make decisions and manage affairs in case their partner becomes incapacitated and will ensure that their significant other is granted their joint assets (or not).
Protect Your Children
If you have children, having a will is crucial. If you become unable to care for your children due to an illness or accident, estate planning will ensure they have someone of your choosing to care for them. Wills also provide the opportunity for you to create trusts for your children that can be handled by a guardian of your choosing until they are old enough to receive it. If you do not nominate a guardian for your children, the courts will appoint one for you. The decision of who will care for your children should be left up to you, not the court.
Why Wills Matter
Though it may be difficult to consider, having a will prepares you and your loved ones for the inevitable. In New York, the Surrogate’s Court handles the affairs of decedents (people who died), including probates of wills and administration of estates. Without a will, obtaining the legal authority to administer an estate usually requires the proposed administrator to post a bond. The bond requirement for Surrogate’s Court can be waived if you have a will. In addition, a will affords you the right to choose an executor to administer your estate, leaving someone you trust to handle your assets.
No matter your situation, it is never too early – or too late – to create your end-of-life plan. Meeting with a qualified attorney ensures that you form a plan in which your estate fully protected. For a free consultation, call the Law Offices of Jennifer G. Tocci, P.C.
Suffolk and Nassau Counties have both filed separate lawsuits against nearly two-dozen pharmaceutical manufacturers, distributors, and doctors.
The suit accuses drug companies and physicians of exacerbating the county’s opioid epidemic. Suffolk County’s lawsuit seeks damages to cover increased county Medicaid costs, rehabilitation programs, law enforcement and the medical examiner expenditures. The County will also seek ongoing payment for opioid education programs and reforms to company practices.
In addition, recently, New York City and Albany each separately filed lawsuits against the pharmaceutical companies that manufacture certain opioids. These municipalities are claiming that the pharmaceutical companies made false claims regarding the safety and risk factors of opioid use and their addictive qualities. New York and Albany have accused pharmaceutical companies of concealing the addictive properties of the drugs and misleading doctors and the public about health benefits. Each plaintiff is seeking reimbursement for the overwhelming financial burden it continues to spend on emergency costs, child-protective services, law-enforcement costs, and other services to combat opioid addiction and overdose.
The opioids included in the lawsuits are OxyContin (oxycodone), Butrans, Hysingla ER, Actiq (fentanyl), Fentora (fentanyl), Opana/Opana ER (Blue Heaven), Percodan (oxycodone and aspirin), Percocet (oxycodone), Zydone and Duragesic (fentanyl).
How are the drug companies to blame?
Drug companies market opioids as harmless painkillers. The drug companies are aware that its products have serious adverse side effects, such as chemical dependency and addiction, yet avoid fairly disclosing it.
The plaintiffs’ claim is that the pharmaceutical companies made false claims while instructing prescribers and patients about safety and risk of opioids, especially those predisposed to addiction. Despite having the knowledge, the pharmaceutical companies instructed its prescribers to ignore potential addiction signs in patients. They inflated and overstated long-term health benefits of taking the medication as prescribed. Further, they concealed that they were knowingly misleading patients and most negligently informed doctors that they could up dosages without additional risk.
In 2007, Purdue (one of the pharmaceutical companies who is a defendant in the current lawsuits) and three of its executives were convicted of federal criminal charges for deceptively marketing opioids. Twenty-six states were part of a multi-million dollar settlement with the company.
In 2015 and 2016, Purdue and Endo (two of the pharmaceutical companies who are defendants in the current lawsuits) entered into a settlement with the New York Attorney General over their deceptive and misleading practices and to establish abuse detection and diversion programs for opioid use. Both companies failed to correct their deceptive and misleading conduct and detection and diversion programs were never created.
Meanwhile, the number of people abusing opioids continues to grow while the companies continue to make hundreds of billions of dollars off their suffering.
What are the damages?
The CDC stated that the opioid crisis is a “public health epidemic.”
Each county spends millions of dollars a year, just to fight the opioid crisis. This money is used for supplying Naloxone (or “Narcan” which stops an overdose), providing training, implementing and running programs to find and stop the distribution of illegal drugs, and connecting addicts with treatment resources.
Suffolk County has the highest rate of overdose deaths in New York State. On Long Island, there were an estimated 600 deaths from opioid overdoses in 2017. Suffolk County had an estimated 400 opioid overdoses. Nassau County had 195 overdoses. In the past two years, the number of opioid overdoses on Long Island increased by 55%. In the United States, overdose deaths from opioids reached 64,000 in 2017. Last year, opioids led to more deaths than car or gun accidents. Opioids have become the most prescribed class of drugs.
Suffolk and Nassau counties spend millions of dollars combating the effects of opioid use and abuse.
What does this mean for individuals affected by opioid addiction?
So far, individuals who filed lawsuits against pharmaceutical companies are rarely successful. However, if these New York municipalities are successful in their lawsuits, this may change. Individuals who are harmed by the addictive properties of opioids may have an opportunity to seek damages. Any damages recovered by the municipalities will likely be needed to continue all opioid abuse management and programs.
What is Assault in the First Degree?
In New York, there are three degrees of assault charges: Assault in the First Degree, Assault in the Second Degree, and Assault in the Third Degree. The degrees of assault differ in the means by which the assault is committed and the severity of the injuries.
Assault in the First Degree (NYPL § 120.10) is the most serious assault charge of the three degrees. It is a class B Felony and a “violent crime” (making it more serious than a non-violent crime in the same class). Anyone convicted of this crime in New York will have a criminal record. Further, you face a minimum of 5 years in jail and a maximum of 25 years, even without any priors. In addition to jail time, you may have to pay fines and restitution, be on probation, and be served with an order of protection.
In sum, if a person causes serious injury to another AND:
- He/she intends to cause serious physical injury with a deadly weapon or dangerous instrument, OR
- He/she intends to seriously and permanently disfigure another person or to destroy, amputate, or disable permanently a member or organ of another’s body, OR
- Having depraved indifference to human life, he/she recklessly engages in conduct, which creates grave risk of death to another person, OR
- He/she is in the course of committing a felony (including attempting or fleeing from) any members involved in the felony.
How can this charge be defended?
Disputing the facts:
Each situation is different and your case may have additional or different defenses than those outlined here. Disputing the facts of the case is one way that may defeat your charges.
As in any other crime, in order to be convicted, the District Attorney must prove to the jury or fact finder that beyond the shadow of a doubt, a person is guilty of the above. As a result, a strong defense can be to show that one or more elements above did not exist. First, if there were no true serious physical injury, you cannot be convicted of this crime; even if some of the other elements of the crime are present, serious injury alone is not enough for a conviction. Secondly, if there were physical injury to another, if you can successfully show that the intent characteristics were not satisfied you might successfully be able to overcome this charge. (For example, the injuries were an accident, or there was no weapon present.) Lastly, if there were no felony being committed while someone was seriously injured (and no other intent elements exist), you could defeat the charge.
Self-defense/ defense of others:
Self-defense and defense of others is an affirmative defense. Asserting an affirmative defense is admitting you committed the crime, but asserting that there is a legally permissible defense that overcomes criminal liability. This is probably the most common defense asserted in assault cases. You must be able to show that you reasonably believed it was necessary to defend yourself and the force you used was the minimum necessary. Therefore, you must show that the other person provoked the conduct and he/she was the initial aggressor. However, if the initial aggressor retreats, self defense will not be a strong defense unless you reasonably believe that person was committing kidnapping, forcible rape, forcible criminal sexual acts, robbery or burglary.
First Degree Assault is a serious and complex legal issue and can differ greatly from cases to case. There may be other defenses that are specific to your unique situation. A skilled attorney will be able to evaluate whether there are other defenses available to defend your case.
No matter which degree of assault you’ve been charged with, consulting with your attorney is the best way to devise a plan for your specific case. For a free case analysis call the Law Offices of Jennifer G. Tocci, P.C.
Are you adequately insured by your car insurance policy? What does your car insurance cover?
Car insurance is a requirement in New York; if you own or drive a vehicle, that vehicle must be insured. (Sidebar: operating a vehicle that does not have insurance coverage can land you a ticket with a penalty of 15 days in jail, revocation of your driver’s license for one-year and a $1,500 fine. Additionally, you could be on the hook for DMV fees.) Frequently, when buyers are shopping for car insurance, they are usually most concerned with their rates and their deductible. (A deductible is the sum of money you are required to pay out of your pocket per accident before the insurance company’s coverage obligation begins.) But what are you really paying for? Nobody expects to be in a car accident, and therefore it’s easy to dismiss the need for added coverage. Is added coverage worth it?
Here are some types of coverage to help you decide what types and amounts of protection you and your family might need:
Liability Coverage: This type of coverage is mandatory in New York State. It protects you and anyone driving your vehicle with your permission. Liability insurance consists of bodily injury coverage and property damage coverage.
Bodily Injury Coverage: The dollar amount is what the insurance company will pay out to another person for injuries caused as a result of your negligence. As outlined below, the minimum coverage requirement in New York is $25,000 for one person, $50,000 per accident. When shopping for car insurance, you may be less concerned with what other people can collect from you. However, in the event of an accident where you accidentally severely injure another person, you could be required to pay out of pocket for the damages that exceed the minimum coverage ($25,000).
Property Damage Coverage: The minimum in New York State is $10,000 worth of coverage for property damage you cause.
No-Fault Benefits: Basic No-Fault coverage is $50,000 per person. It covers medical/health expenses, lost earnings, and certain other reasonable and necessary expenses related to injuries. It covers you as the driver, any passengers, persons in other vehicles and pedestrians. No-Fault coverage is available to everyone who sustained an injury as a result of the accident, regardless of fault (hence the name “No-Fault”).
Uninsured Motorist Coverage: This type of coverage has a minimum amount as bodily injury $25,000 and covers you, members of your household, passengers in your car, and your spouse when the person who is liable doesn’t have car insurance or you’re involved in a hit and run. This does not extend to property damage unless you specifically add that feature on to your insurance policy.
Underinsured Motorist Coverage: underinsured is not a requirement and only covers claims where an at-fault party does not have enough coverage to take care of your damages for bodily injury. Unless purchased, this type of coverage does not come with your standard policy. Similar to uninsured motorist coverage, this will likely cover you, members of your household, and our spouse. Again, this policy, unless specifically purchased, does not include property damage.
Collision Coverage: unlike property damage coverage, this type will cover damages to your car. This insurance coverage is usually not required and will not be a part of a standard minimum policy. However, if you carry a loan on a car, the lienholder may require you to have this type of insurance.
Comprehensive Coverage: this covers you with respect to damages to your car from theft, fire, vandalism, and natural disasters. It is not mandatory. Usually, your policy will cover you up to the current market value of your car. Similar to collision coverage, this too is not mandatory and will not be available on minimum coverage insurance policies.
Supplemental Spousal Liability Insurance: Most minimum coverage insurance policies do not cover a spouse’s injuries in the event you injure your spouse while driving. In NY, married couples are permitted to purchase supplemental spousal liability insurance.
Gap Insurance: this is completely optional, and will not accompany your standard policy. This type of insurance may be helpful when you have a loan on your vehicle. In the event, you’re in an accident, and the value of the car is less than the outstanding loan, the gap insurance will cover the difference between the value of the care and the loan amount. The lienholder has to be a bank or institution (not an individual person). At times, this type of insurance may be available through the dealership or warranty companies. It can usually be purchased through your car insurance carrier as well.
Certain insurance companies offer other additional features you can purchase. Usually, coverage over the minimum policy requirements is inexpensive. Your car insurance may even allow you to purchase towing and labor coverage, mechanical breakdown coverage, roadside assistance, and medical and funeral services expenses.
You can speak with your broker or insurance carrier to discuss the different options and outcomes with him/her. You don’t want to learn what you’re covered for after an accident and you don’t want to be underinsured. If you’ve been in an accident that was not your fault, contact the Law Offices of Jennifer G. Tocci, P.C., for a free case evaluation.
Raise the Age Legislation
Currently, 16 and 17-year-olds in New York State are automatically prosecuted as adults in our criminal justice system. The laws are soon changing to raise the age of criminal responsibility to age 18. The objective is to prevent youthful offenders from being harshly punished, and instead provide services they need to be rehabilitated. Effective October 1, 2018, 16-year-olds will no longer be automatically prosecuted as adults; as of October 1, 2019, 17-year-olds will no longer automatically be prosecuted as adults.
What is Specifically Changing?
Parental Notification of Arrest Required: Parents of 16 and 17-year-olds who have been arrested will be required to be notified of the arrest. Furthermore, questioning must include parental involvement, and conducted in areas designated for youthful offender questioning. There will be time restrictions implemented for the length of questioning.
Criminal Records May be Sealed: Youthful offenders, who were convicted in adult court, may apply to have their record sealed after 10 years. The ten years is measured from the release of jail/prison or from the conviction, whichever is later. So long as the youthful offender has no more than two convictions (only one may be a felony), most criminal convictions may be sealed after 10 years. However, violent felonies, sex offenses, and Class A felonies will not be eligible to be sealed.
Jail and Prison Rules Change: 16 and 17-year-olds who are held before conviction or convicted and sentenced to jail/prison will no longer be allowed to be held in the same facility with adults. Youthful offenders will not be permitted to be held at Rikers. Youthful offenders, who need to be detained, will be treated like Juvenile Delinquents. If youthful offenders need to be detained prior conviction, they will be held in a specialized juvenile detention center designated for older youth. Lastly, Adolescent Offenders (see below for qualifications) who are sentenced to state imprisonment will be held in a specifically created Adolescent Offender Facility.
Cases May Be Prosecuted in Family Court Instead of Criminal Court: Cases involving 16 and 17-year-olds may be heard in the Family Court instead of Criminal Court. In Family Court, the 16 or 17-year-old offenders will be prosecuted according to the juvenile delinquency laws. In Family Court, in the event of a conviction, the offender will not have a criminal record.
Vehicle and Traffic Cases– Vehicle and Traffic Law matters may not be transferred to Family Court and will be prosecuted and punished under the current laws.
Misdemeanors– All misdemeanors that are not vehicle and traffic cases will be heard in Family Court instead of Criminal Court.
Non-Violent Felonies– All non-violent felonies will be commenced in the Youth Part of Criminal Court but will then be transferred to and prosecuted in Family Court, unless the District Attorney files a motion requesting the case be prosecuted in Criminal Court. The District Attorney must make an appropriate showing of “extraordinary circumstances.” Even if the District Attorney is successful, the case will be handled in the Youth Part of the Criminal Court.
Violent Felonies: 16 and 17-year-olds who are accused of violent felonies are not automatically eligible to have their cases heard in Family Court. If the violent felony is not one that includes-
1) displaying a deadly weapon in furtherance of the offense
2) intent to cause physical injury and/or
3) unlawful sexual conduct
The case may be transferred to Family Court if the District Attorney consents to the transfer. Similar to a non-violent felony, the District Attorney may submit a motion to the court to request that the case remains in Criminal Court. However, the District Attorney must show “extraordinary circumstances” to successfully keep the case in Criminal Court. Even where the District Attorney is successful, the case will still be prosecuted in the Youth Part of the Criminal Court.
Class A Felonies– Class A felonies, except class A felony drug offenses, may not be transferred to Family Court.
All cases not transferred to Family Court will be prosecuted in the Youth Part of the Criminal Court instead of in Criminal Court with standard, adult treatment.
What is the Youth Part of the Criminal Court?
There is a new category titled, “Adolescent Offender,” which was created for 16 and 17-year-olds who are accused of committing violent felonies or who do not successfully have their cases transferred to Family Court. Adolescent Offenders are heard in the Youth Part of Criminal Court. The Youth Part will be created once the law is implemented (beginning October 2, 2018, for 16-year-olds), where 13-17-year-old offenders will have their cases Prosecuted. The Family Court Judges will preside over these cases, and they will have more lenient treatment.
Are There Any Age-Appropriate Services for Adolescent Offenders?
Youth rehabilitative services will be implemented depending on the specific needs of the particular youth. The motivation behind the change in the law is to assist minors in becoming productive members of society. Currently, punishment is the main focus of prosecuting all crimes, which include 16 and 17-year-olds. Each offender will be assessed to decide whether they are in need of academic planning, therapy, education programs, vocational training, employment opportunities, substance abuse treatment, mental health treatment, etc. and will be required by or administer to the youthful offender. The goal is to rehabilitate more than to punish.
When a youth is released from custody, integration services may be available where needed. These will assist with family reintegration, housing assistance, mental health and medical care, employment support, and educational assistance.
If you are a minor or the parent of a child under 18 who has been accused of a crime, call a skilled attorney to discuss your rights and options. The Law Offices of Jennifer G. Tocci, P.C. offers free consultations for criminal matters (631) 343-7676.
Motor Vehicle Accident Injuries on Long Island
Did you know that motor vehicle accidents are a leading cause of injuries and deaths on Long Island? In Suffolk and Nassau counties, car accidents are the second leading cause of both hospital Emergency Room visits and hospitalizations*. Alarmingly, car accident deaths are a leading cause of death in both Suffolk and Nassau counties*. Every single month in Suffolk County, 11 residents die, 122 are hospitalized and 1,466 are treated in the Emergency Room for injuries sustained due to motor vehicle accidents*. In Nassau County every month, as a result of traffic accidents, 11 residents die, 111 are hospitalized and 1,028 are treated in the Emergency Room*.
In the most recent report in 2014, in Suffolk and Nassau counties, motor vehicle traffic injuries, including car accident occupants, motorcyclists, pedestrians, and bicyclists, lead to approximately 210* deaths, which has decreased from the previous years!
Here are examples of common injuries that people experience from motor vehicle accidents. These injuries are not exclusively the outcome of high impact, high-speed accidents, and are frequently the result of low-speed accidents.
Common Motor Vehicle Accident Injuries:
Traumatic Brain Injuries: Traumatic brain injuries are caused as a result of a blow or jolt to the head or body, or some object penetrating through the skull into the brain tissue. This is a severe injury that can affect your cognitive abilities and can be temporary or mild (such as a concussion) or permanent. In serious, but not uncommon cases, it can lead to death. A physician should evaluate every head or brain injury.
It is worth noting that of the hospitalizations following traffic accidents, 33% in Suffolk County and 42% in Nassau County were due to Traumatic Brain Injuries*. Half of the bicyclist in all traffic accidents in Suffolk and Nassau counties are diagnosed with traumatic brain injuries. (Wear your helmet!)
Herniated Disc: (Also known as a slipped disc.) A disc is a soft tissue, located in between the vertebrae of the spine. Motor vehicle accidents can cause the disc to rupture (or herniate). The symptoms are localized pain, numbness, weakness, and stiff neck, severe pain down one or both sides of the body. Discs can herniate over time, or as the result of age. A physician will be able to determine if the injury is the result of a car accident or normal wear and tear. This injury can require surgery, epidural injections, muscle relaxers, pain medications, and physical therapy.
Whiplash: While whiplash is usually less serious injury, is perhaps the most common injury in motor vehicle accidents. This occurs when a collision causes a person’s head is abruptly and violently shake from side-to-side. The pressure and tension on the neck ligaments can cause the neck to strain and sprain. This is usually a less severe injury and resolves over time.
Broken Bones: Car accidents often cause bone fractures. Commonly broken bones as a result of a car accident are broken arms, legs, noses, collarbones, ribs and hips. Broken bones may take a substantial period of time to heal, and may even require surgery and result in permanent disabilities. In the broken bones are displaced, this can cause a life-threatening injury, as they can puncture internal organs and cause internal bleeding.
Spinal Chord/Back Injuries: A back or spinal cord injury can cause paralysis in the arms or legs (known as “paraplegia”) or over larger areas of the body (“tetraplegia” or “quadriplegia”). Back injuries that are less severe can still cause chronic pain and loss of mobility.
Cuts and Bruises: Minor cuts and bruises often heal without complications, although they should be assessed by a medical professional. Deep bruising or cuts into muscles or internal organs are serious injuries that may cause profuse bleeding and shock. Cuts and bruises to the eyes may cause permanent vision loss. Often, cuts and bruises can cause permanent scarring and discoloration.
Burns: Burns can be frightening to experience. Even minor burns can become infected during the healing process. More serious burns have a higher potential for infection but may also cause permanent disfigurement to the face and body. Burns to the eyes may cause temporary and permanent loss of vision and blindness. In 2010, fires occurred in 0.1 percent of traffic crashes, and in fatal crashes, a fire was involved in 2.8 percent**. However, a fire does not need to occur or burns to result. Airbags frequently cause chemical and thermal burns.
Chest and Abdominal Injuries: The impact of a motor vehicle accident can crush and squeeze the body, causing ruptures or tears to the heart, lungs, liver, spleen, kidneys, diaphragm, and other organs. This can be fatal and require surgery to repair.
Other injuries: This blog does not list every injury that may be experienced as the result of a motor vehicle accident. Other injuries include dental injuries (to the teeth, mouth, and gums), knee injuries, psychological injuries, facial injuries, internal injuries, aggravation of past injuries, finger and hand injuries, nerve damage, etc.
If you’ve been in an accident, it is important to seek immediate medical attention, as certain injuries, including those that are severe, are not always immediately apparent. If you’ve been in an accident and suffered injuries, you may be entitled to compensation for your damages. Contact the Law Offices of Jennifer G. Tocci, P.C. for a free case evaluation to discuss your rights and options (631) 343-7676.
*According to New York State Department of Health, Bureau of Occupational Health and Injury Prevention Vital Statistics filed June 2016
**According to the National Fatality Analysis Reporting System 2010 report
What is “Criminal Possession of a Controlled Substance” in the State of New York? Does that include marijuana? Is the same charge issued for possessing heroin, cocaine, marijuana or prescription pills?
First, what is a controlled substance?
In New York, the law states that any substance listed in schedule I, II, III IV, and V, in § 3306 of the New York Public Health Law and concentrated cannabis. The listed substances are numerous, including nearly all drugs with a recognized potential for abuse and addiction. Here are some that are common (this list is by no means exhaustive):
Recreational Drugs: cocaine, crack, heroin, ecstasy, opium, concentrated
(No accepted medical use) cannabis, Ketamine, Peyote
Pain Medications: Vicodin, Percocet, Codeine, Morphine, Fentanyl, Oxycodone, Oxycontin, Methadone
ADD/ADHD Medications: Adderall, Vyvance, Concerta, Ritalin
Hallucinogenic: Mushrooms, LSD, Mescaline
Depressants: Xanax, Ambien
All of the above substances can be the basis of the any controlled substance charge. This does not include every drug; the list is merely examples of commonly used and abused controlled substances in their common names.
It is important to note that any prescription pill that is a controlled substance if it is not prescribed to you, you are not lawfully permitted to possess it. Alternatively, if you do have a prescription for a controlled substance, you are able to possess that substance under the proper circumstances. The substance must be held in the same container that it was delivered in, and it must contain your name, the name of the substance, the date it was written to you, the quantity and the dosage.
What about possession of Marijuana?
Despite other states reducing or eliminating their Marijuana laws, in New York, Marijuana remains an illegal recreational substance. Although if you are caught privately possessing a small amount (under 25 grams), you can be cited for “Unlawful Possession of Marijuana,” it is not a crime, but merely a violation. However, possessing concentrated cannabis (concentrated THC) is considered a controlled substance. This means any marijuana oil or wax, or pen or pipe containing oil or wax is a controlled substance under New York Penal Law.
*For more on this topic, visit my New York Marijuana Laws blog coming soon.
Next, what is possession, what does it mean to possess?
In New York, possession means that someone has physical possession of the substance and that person knowingly possesses it, and unlawfully possesses it. If it is alleged that there is intent to sell, the person who is holding the drugs to be sold is considered to possess it, in addition to intending to sell it.
The presence of a controlled substance in an automobile, allows the presumption to be drawn that every single person in the automobile knew it was there when it was found.
The presence of a narcotic drug or “preparation,” marijuana or phencyclidine in open view in a room (not a public place), along with evincing an intent to unlawfully use or sell allows the law to draw a presumption that everyone in close proximity knew and possessed the controlled substance.
What are the different levels of offense?
In New York, the levels of Criminal Possession of a Controlled Substance are defined in terms of weight and intent:
In the first degree: This is a Class A-I Felony offense. Examples of this can include possession of cocaine, heroin, or any narcotic with a total weight of eight (8) ounces or more or methadone weighing 5760 mg or more. This charge carries the most jail time, from 8 to 20 years for a first time offender. (PL §220.21.)
In the second degree: This is a Class A-II Felony and includes possession of narcotics such as cocaine, heroin, LSD, or any other narcotic weighing four (4) ounces or more. A conviction may result in a jail sentence of 3-10 years for the first offense. (PL §220.18.)
In the third degree: This Class B Felony charge includes possession of a controlled substance such as cocaine, heroin, or any other narcotic with intent to sell. A conviction may result in a sentence of 1-9 years in jail. (PL §220.16.)
In the fourth degree: This is classified as a Class C Felony. This includes possession of cocaine, heroin or any narcotic with a total weight of one-eighth of an ounce or more. A conviction may result in no jail time but probation from 1 to 2 years minimum, and up to 15 years. (PL §220.09.)
In the fifth degree: This is a Class D Felony. This charge includes possession of a controlled substance with intent to sell and criminal possession of narcotics such as cocaine, PCP, marijuana and other narcotics. A conviction may result in probation for 1 to 5.5 years. (PL §220.06.)
In the seventh degree: This is a Class A Misdemeanor. This includes knowingly or unknowingly possessing a controlled substance in small or trace amounts. A conviction may result in jail time up to one (1) year. (PL §220.03.)
These charges are solely for the actual physical possession of controlled substances and do not include the charges, definitions, or penalties for sale, paraphernalia, manufacture, criminal injection, or any charge other than Possession of a Controlled Substance.
Are there any defenses to Criminal Possession of a Controlled Substance?
In addition to any constitution, substantive or procedural defenses, there are the defenses of lack of knowledge, temporary and lawful possession, lawful prescription for the medication, improper quantity, under age 16. Every situation is different, and a skilled attorney will be able to evaluate your case and any defenses you have.
If you have been charged with any drug offense, hiring a skilled attorney will provide you with the best possible outcome for your case. For a personalized and free consultation, call the Law Offices of Jennifer G. Tocci, P.C. at (631) 343-7676.
Just because you were in an auto accident does not mean that you can successfully sue for personal injuries, even if you were in fact injured. In New York State, there are certain standards that must be met in order to initiate a lawsuit. In other words, you must have what is known as a “threshold injury.”
So what are these thresholds?
In order to start a personal injury lawsuit in New York, you have to sustain what is called a “serious injury.” This means that in cases where the injuries or limitations are so minor, mild or slight as to be considered insignificant within the meaning of the Insurance Law §5102(d), the case may be dismissed in court. See, Licari v. Elliot, 57 N.Y.2d 203, 455 N.Y.S.2d 570 (1982). In order for your injury to qualify as a “serious injury,” you must have an injury that meets the criteria of New York Insurance Law § 5102(d) as an injury resulting in:
(3) Significant disfigurement;
(5) Loss of a fetus;
(6) Permanent and total loss of use of a body organ, member, function, or system;
(7) Permanent consequential limitation of use of a body organ or member;
(8) Significant limitation of use of a body function or system; or
(9) A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.
If you’ve sustained any injury as a result of an auto accident, you should contact an attorney who can determine if your injures fall into one or more of these categories. If you believe your injuries fall into one or more of these categories, or are unsure if they do, then a skilled attorney will be able to evaluate your case.
Are there any other qualifications?
If you file a lawsuit, it is the plaintiff’s burden (party who started the lawsuit) to establish that you have sustained as “serious injury.” In order to have a successful claim, your injuries must be evidenced by documented and tested medical evidence. Such documentation can include test results from a CT scan, MRI or other evaluative tests performed after the accident. In most cases, even though you have three (3) years to begin a lawsuit in New York, the tests will have to be performed and documented within a year of the accident or the court may not accept them. Your doctor must also document that the injury was sustained solely from the accident, and not from another medical issue. Although, having a pre-existing condition does not limit your claim, so long as a physician can document that the aggravated injures are a direct result of the accident. Therefore, you may still have sustained a “serious injury” despite having a pre-existing condition.
When should I contact an attorney?
In New York, there is a time limit, or a statute of limitations, for filing a lawsuit. This time limit is three-years from the date that the accident occurred. Waiting months, or even years to contact an attorney could have serious negative impacts on your case. Just because you are still in the process of being treated by physicians, does not mean that you should wait to contact an attorney. Your attorney should act as your trusted advisor, ensuring that you receive direction, protection, and clarity.
For a personalized and free evaluation of your situation, call the Law Offices of Jennifer G. Tocci, P.C. (631) 343-7676.
What if the officer did not read you your rights?
Upon police interrogation, where you are not free to leave, police are required to read Miranda warnings to you (also called, being Mirandized or reading your rights). What are Miranda warnings? Chances are, you’ve heard them before on TV. “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.” This is a quick explanation of your constitutional right against self-incrimination and your right to have an attorney present during police questioning.
There is a common fallacy that if a police officer fails to read you your rights, your case will automatically be dismissed. This is not true. In the event that a police officer does not Mirandize you where required, any statement you make after may not be used against you in criminal court. Further, without being Mirandized, confessions given or evidence discovered as a result of making statements could potentially be “thrown out” or not used against you in a criminal case. A strong defense attorney can assist in preventing the court from using the information against you in instances where your Miranda rights have been violated. It is important to note, however, in the event that you remain completely silent, despite not being read your Miranda rights, the failure of the police reading your rights will likely have little impact on your case. It is also important to note, that even where the police failed to read you your rights, statements and evidence could still be used against you for other purposes in your criminal matter, such as impeachment. Each situation is different and is reviewed on a case-by-case basis. Your defense attorney will help you decide whether your Miranda and constitutional rights have been violated.
While you have the right to remain silent, the police do not have to recite these to you unless you’re in custody (or not free to leave). That means the police can ask you questions and do not need to Mirandize you, so long as you are there voluntarily and can leave at any time. While you are not generally required to respond when being questioned by the police, any statements you make while you’re not in custody (free to leave) are fair game to be used against you or to discover evidence against you.
If you think your Miranda rights have been violated, call the Law Offices of Jennifer G. Tocci, P.C. (631) 343-7676 to discuss your case with a skilled defense attorney.
Hiring an attorney might not be the first thing on your mind after you’ve been in an accident. Maybe you are severely injured and all of your focus is on the treatment and healing of those injuries. Maybe you’re not so injured that you need to take much time off, and can manage the treatment in between your obligations. Or perhaps you’re not even sure if you’re injured at all; you’re sore and not yourself, but nothing is broken or requires surgery and you’re feeling fortunate that you were able to walk away afterward. For several reasons, a lot of people are hesitant to contact an attorney at all. Some of those reasons being that they’re reluctant to be involved in a lawsuit; they think they can handle it themselves and they’re worried about costs. A few people even fear that hiring a lawyer makes them appear greedy.
How soon after an accident should you contact an attorney?:
The short and long answer is: immediately.
Insurance companies are usually eager to get statements from every party involved. However, you should never trust the insurance companies. While they have cleverly constructed statements that make it sound like they’re worried about you and your safety and mislead you into thinking the interaction is friendly, non-hostile, and that they’re on your side, nothing could be farther from the truth. The insurance companies are NOT on your side. They are recording every word you say and will use that information against you in any way possible. Once you hire an attorney, unless permission is given, the insurance company should only be contacting your attorney regarding the matter. An attorney will know what to say to protect you. However, this isn’t to say that you shouldn’t report an accident while attempting to hire an attorney or considering whether to hire an attorney. Most insurance companies have written policies that require you to contact them within 24 hours or “as soon as physically able.”
In New York, the statute of limitations, or the amount of time you have to file a lawsuit, is three-years from the date of your accident. However, waiting for three years to hire an attorney could severely damage your case. There is a lot of work that may be required prior to preparing to file a lawsuit. Waiting to hire an attorney for an extended period of time after an accident can prevent important evidence, such as witnesses and documents, from being preserved. Without proper evidence, your claim could be much weaker than if you had a skilled attorney handling your case sooner. Additionally, in certain cases where the government could be a responsible party for your injuries, the time restraints critically shorten, with proper legal documents required to be filed and served within ninety days. This may occur where the road is unsafe, causing or contributing to your accident. A skilled attorney will be able to decipher whether the government could be at fault for your injuries. Furthermore, where there are parties not from New York or where the accident occurred in another jurisdiction, the statute of limitations might be shorter. A skilled attorney will be able to determine the proper statute of limitations and time restraints in your case.
No Fault Insurance: this New York insurance is designed to cover medical expenses for injuries legitimately sustained as a result of an automobile accident, regardless of who is at fault. (Hence the name, “No Fault.”) The No-Fault application often intimidates people. While it is easy to put it off and forget to send in the application, it is important to understand that there are time constraints. In most cases, the application must be submitted to the insurance company within 30 days. Failure to do so could result in the insurance company denying coverage of No-Fault benefits. Remember, the No-Fault application should still be submitted to your insurance company, despite another party being at fault. While this may seem non-adversarial and simple, often times it’s not. Even if you timely and properly submit your application, your claims may still be denied, requiring you to proceed to arbitration, merely to have an arbitrator determine whether or not your medical treatment should be covered. For more information regarding No Fault contact an attorney as soon as possible.
Why should I hire an attorney?:
The chances of receiving the compensation you deserve for your injuries are much higher if you hire a proficient attorney. As we touched upon earlier, the insurance company’s goal is to save the business as much money as possible. If you settle for a sum of money that appears adequate, you could bar yourself from recovering a fair amount. Often times, there are injuries that aren’t immediately apparent. Even where you later find out you’re more injured than you first realized, if you settled your case prematurely, you can’t recover more money for those newly discovered injuries. When an attorney does not represent you, the insurance company may assume you have little knowledge of the courtroom and legal system and may intentionally low-ball an offer or refuse to make an offer unless a lawsuit is filed. An attorney will be able to determine how much your case is worth, which is dependent on multiple factors. Your attorney will take into consideration the extent of your injuries, which parties may be at fault, your expenses and time off from work. Every case and situation is different. It is better to retain an attorney as soon as you’re able in order to prevent being bullied by the insurance company and destroying your case.
For a personalized and free case evaluation, call the Law Offices of Jennifer G. Tocci, P.C. (631) 343-7676.
It doesn’t matter whether you’re rooting for the Patriots or the Eagles, or are just watching for the commercials; chances are you’re going to be celebrating this Super Bowl Sunday. Super Bowl Sunday is one of the biggest drinking days of the year. In an effort to prevent alcohol-related accidents, the New York State STOP-DWI Program is implementing a statewide crackdown on drinking and driving that will begin February 2, 2018, and end on February 5, 2018. During the Super Bowl STOP-DWI crackdown, there will be sobriety checkpoints and increased highway patrol officers on the roads. While it’s always important not to drink and drive, if you do this weekend, your chances of being arrested increase greatly. Here is a quick and easy guide with general information about drinking and driving and its consequences.
Legal Limit: Most people are aware that the legal limit is .08 blood alcohol content (BAC) but believe that they can “blow under a .08” without serious repercussions. This is a partially misleading consensus.
DWI: If you have a BAC of .08 to .17 you are not legally permitted to drive your car (or any motor vehicle) and can be charged with and/or convicted of the crime of “Driving While Intoxicated” (DWI).
Aggravated DWI: If you operate a motor vehicle with a blood alcohol level that is .18 and above, you may be charged with “Aggravated Driving While Intoxicated” (Aggravated DWI).
DWAI: It is important to be aware that you could still be issued a ticket for “Driving While Ability Impaired” (DWAI) for a blood alcohol level of .05 to .07. While this charge is a traffic infraction (unless you’ve been convicted of 2 previous DWAIs), you may still face serious consequences, including up to 15 days in jail, a suspended license, fines, and/or Department of Motor Vehicles (DMV) fees.
Zero Tolerance: If you’re under 21, there is “zero tolerance” for drinking, meaning that driving with a BAC of .02 to .07 could result in a “Driving After Having Consumed Alcohol” charge. For individuals under 21 years of age driving with a BAC of .05 to .07, the police may charge him/her with a DWAI, and the matter will be handled in criminal court. If you’re under the age of 21, and drive with a BAC high enough to be charged with a DWI, Aggravated DWI, or DWAI, those charges accompany heightened consequences.
Refusal: You are not required by law to submit to a chemical test to determine your BAC. However, there are heightened penalties for refusing to do so.
Commercial License: Those with commercial licenses will be subjected to stricter penalties, especially if you operate a vehicle that transports hazardous materials.
Above is a quick summary of various drinking and driving charges. Below, you’ll find a list of the potential consequences of convictions of the same charges.
Penalties: Several penalties may be imposed for a drinking and driving conviction. You’re going to lose your license for at least some period of time. While you may be able to apply for a conditional license, limitations are imposed, restricting where you can go and when you can be on the road. Below are the penalties for the first offense for each charge (unless stated otherwise).
DWI: Even if this is your first offense, this is a misdemeanor! It is a crime! This means, if you are convicted of a DWI, you will have a criminal record that may appear on a background check.
Jail Sentence: If convicted, you may face up to one-year in jail.
Fines: In addition to potential jail time, you will be required to pay a minimum fine of $500 to $1,000. This does not include surcharges, crime victim assistance fees, or the costs associated with installation of an interlock device. Additionally, the DMV may impose a “Driver Responsibility Assessment fee.”
Driver’s License: Your license will be revoked for a minimum of six-months. Individuals under 21 will have their license revoked for a minimum of 1 year.
Other Penalties: You may further be required to participate in alcohol treatment and/or evaluation, completing community service, and installing an interlock device. Installing an interlock device is required for any misdemeanor or felony drinking and driving charge, which must be installed at the offender’s expense.
These penalties apply to a DWAI received for drugs (DWAI-DRUG) or alcohol and drugs (DWAI-Combination).
Aggravated DWI: For the first offense, this crime is a misdemeanor! This means, if you are convicted of an Aggravated DWI, you will have a criminal record that may appear on a background check.
Jail Sentence: You may face up to one-year in jail (for the first offense).
Fines: The fines associated with this crime are a minimum of $1,000 and a maximum of $2,500 for the first offense, exclusive of surcharges, crime victim assistance fees and costs for an interlock device. Additionally, the DMV may impose a “Driver Responsibility Assessment fee.”
Driver’s License: Your license will be revoked for a minimum of one-year.
Other Penalties: You may further be required to participate in alcohol treatment and/or evaluation, completing community service, and installing an interlock device.
DWAI: While this is not a crime (unless it’s your third or more offense), you could still face a potential jail sentence of up to 15 days and a suspension of your license for 90 days. (If you’re under 21, your license will be revoked for at least a year.) The fines associated with this charge are $300-$500, exclusive of the surcharge, crime victim assistance fees, and costs associated with the installation of an interlock device. Additionally, the DMV may impose a “Driver Responsibility Assessment fee.”
Refusal: Your license will be suspended at arraignment and ultimately revoked for at least one-year. A $500 fine will be imposed. Depending on the circumstances, you could also have any of the above penalties imposed. You could also be convicted of a misdemeanor, resulting in having a criminal background.
Commercial Drivers: If you are convicted of having a BAC of .04 or higher, your license could be revoked for a minimum of one-year, in addition to any of the above penalties.
The above penalties are limited to the criminal court’s punishments for the corresponding charges. Frequently, in addition to their drinking and driving charge, people are charged with multiple traffic infractions, as well as other criminal charges, that may each bear their own separate penalties. Additionally, person’s situation is different. You could be dealing with employment issues, civil lawsuits, and penalties, as well as other issues.
What to do if you or a family member has been arrested: Call an attorney immediately so that he/she can evaluate your case. Hiring an attorney to act in your best interest may lessen the consequences and penalties associated with your charges. An attorney will be able to determine if you have any statutory, constitutional and/or procedural defenses to the charges. Your lawyer should assist you in understanding the procedures, and come up with a game plan that works for you and your case.
If you’ve been released at the police station, you will want to hire an attorney before your arraignment. If your loved one was not released, it could be helpful to hire private counsel to ensure certain rights are not waived during the arraignment. In the event you do not hire private counsel, even if the accused does not qualify for legal aid, a legal aid attorney may be assigned just for the purposes of the arraignment. Often times, the court takes into consideration that the defendant hired private counsel when determining bail amounts.
This is meant to be a brief summary. Each case and situation is different, which may alter the potential outcomes and strategy that should be used. For a free evaluation of your case or to discuss your rights, please feel free to call the Law Offices of Jennifer G. Tocci, P.C. at (631) 343-7676.
Know Your Rights, with attorney Jen Tocci
911 Good Samaritan Law
An overdose can be a terrifying, tragic event, and sadly, the incidence of overdoses from drugs and alcohol is increasing on Long Island. Suffolk County has the highest overdose rate of any county in New York State, and Nassau County has the fourth-highest. As a result, New York State has enacted a “911 Good Samaritan Law” to encourage people to call 911 without fear of being arrested or prosecuted for certain crimes themselves.
The statute allows for a person to call 911 in the event he/she or someone else is experiencing a drug or alcohol overdose and/or life-threatening injury and is in need of medical care without being subject to arrest for certain charges.
The law protects both the caller and the overdose-victim from being prosecuted for possessing less than 8 ounces of a controlled substance, possessing any quantity of marijuana, possessing drug paraphernalia, and/or sharing drugs. Under-age drinkers are also protected from being prosecuted for consuming alcoholic beverages.
It is of vital importance to note, however, this law provides only LIMITED legal immunity and will not protect someone from arrest for possession of more than 8 ounces of any controlled substance, sale or intent to sell controlled substances, any open warrants for an arrest, or violation of probation or parole.
So please be careful; having an open warrant for an arrest is much more common than one might think. Keep in mind it is possible to have an open warrant—without being notified about it—simply by forgetting to pay a recent traffic ticket.
Additionally, the Good Samaritan Law is often invoked as a defense after an arrest has been made, since there is nothing directly unlawful about an officer arresting someone for one of these offenses, even under the aforementioned circumstances.
Furthermore, while the statute may get someone off the hook in the present situation, it will not protect that person from law enforcement during future encounters. This is important for people who live in smaller towns, especially those with their own vigorous police departments such as Northport Village and Amityville. In other words, while an officer may not arrest someone when responding to the emergency call, he/she may instead take note of that person engaging in questionable behavior for future reference. So the next time he spots your Nissan Altima with the tinted windows and borderline street-legal exhaust system doing 31 in a 30 down the only road in town you might not get off so easily.
The bottom line is that saving a life, whether it be your own, your friend’s, or that of some random person at a party, should always be the right choice. You can always hire a lawyer, but you can never go back in time and save a life.
If you think that you’ve been wrongfully arrested or ticketed by the police while they were responding to a 911 call, please contact our office for a free consultation.