A Miracle Outcome For A Speeding Ticket That Is Also An Example Of A Judge's Belief in Leniency & Second Chances:

Last week in Court, I represented a young, reckless man who is now the beneficiary of a miracle, the kind of miracle that hopefully will push him to get his life on track and not kill himself speeding ever again at over 100 miles/hour. Earlier this year, he was stopped for driving at One Hundred Eight (108) miles an hour on the highway (55 mph limit). First, the judge screamed at him and said that at that high rate of speed, he’s seen pictures of victims in those car crashes whose skin has fallen off their bodies. Then the judge lectured him at length and asked this young man if he wanted to enlist in the Marines. Then the case was recalled 2 times because the judge was not happy with my client’s answers. But finally the judge issued the following ruling: if and only if this young man stays out of trouble and is not issued any new moving and parking violations for the next 6 months, this ‘speeding 108 mph in a 55 mph zone’ ticket will be dismissed in its entirety when we go back to Court in mid-Dec. In my 16 years of practicing law and slogging through extremely difficult contested divorce cases, Family Court cases, representing criminal defendants before a grand jury in various felony cases, and finally trials in criminal cases involving juries (felonies and misdemeanors), I can tell you that this kind of ‘commitment’ from a Judge for this kind of obnoxious and highly dangerous behavior is as close to a miracle outcome as any that I’ve ever personally been involved in during my years of practicing law. I also had very little to do with this wonderful outcome, even if you feel that this post is about me, which it is not. This post is about the generosity, patience and kindness of a Judge who has a reputation of being very hard on ‘recidivist’ drivers, especially young kids who speed so fast that, if they crashed, the crash would most likely have killed the driver and all passengers on impact.

My client is a 20 year New Yorker of Italian-American background who does not live or work in the county where he was stopped for this high speed, meaning that he basically assured himself that any Judge would come down on him harder than if he lived or worked in that county. At 20 years old, my client already has a driving record that is several pages long and recently, he pled guilty to ‘driving while ability impaired’ (DWAI) and he’s not even 21 yet. He was also pulled over for an entirely new and unrelated moving violation (not speeding) after he got this speeding ticket. When we went to Court last week, the case was scheduled for trial and the Judge had every right to insist that the trial go forward. If convicted, this young man could have been sentenced to jail for up to 30 days, apart from having to pay a max. possible fine of $600. Also, the judge was ready to suspend his driving privileges for 90 days, what is commonly called a 'VTL 510 suspension.'

Speeding tickets are very difficult to beat because the speed of the driver is generally measured by a properly calibrated laser gun. In the practice of law, you’ll often hear lawyers promise that they will achieve this kind of result for you, that result, etc. Some people in the general public believe that by hiring a lawyer for a criminal case or for traffic tickets, their lawyer can get the entire case and/or traffic tickets dismissed. This type of belief is highly misleading and not really based upon any hard facts of ‘frequent dismissals’ and/or ‘frequent acquittals.’ If the criminal and moving/parking violations system in the US really functioned in this way, we would have mass disorder all over the place (more so than we already have) and you would have heard about these magical, almost mythical lawyers by now.

Getting back to my client’s case, the original plea bargain that the prosecutor offered my client was a reduction down to speeding 88 miles in a 55 mph zone, which carries 8 points. My client’s driving record was so bad that after his parents hired me, I urged them to have their son take Defensive Driving, which he did before we went to Court last week. Therefore, the ‘up to 4 point removal’ benefit that the Defensive Driving course offers to all drivers who are licensed in NY was no longer available to him. Defensive Driving can be taken as often as you like, but the ‘up to 4 point removal’ benefit can only benefit a driver 1 time for every 18 months. On the 3 page attachment below, you can see at the top of p. 2 that he took Defensive Driving in March, 2016 and on the same page (under ‘Tickets’), you will see the 108/55 ticket. Above it you will see the latest ticket that he was issued in Apr. 2016 for disobeying a traffic control device (2 points if he is convicted).

You can do your own survey of lawyers who handle traffic tickets, but this type of outcome for an above-100 miles per hour ticket is extremely rare. It was simply a great act of generosity and patience towards my client by a very forgiving judge. I do not believe that I will ever be personally involved in this type of outcome ever again. When I returned to my office after Court was over, I told another client (who was waiting for me) about this judge's kindness and this other client of mine said that when he was stopped for driving at almost 100 mph in his 20s, he did not get a reduction at all and got 11 points on his record immediately. Back to my client from last week, he was not granted an ‘adjournment in contemplation of dismissal’ (ACOD) because in NY, although some types of moving violations are classified as crimes (mostly misdemeanors), a very high speeding ticket such as this is Not a crime, he was not fingerprinted, etc. Also when a client is granted an ACOD, the client/defendant does not have to return to Court in 6 months’ time after the last court appearance. However, my client for this high speeding ticket does have to go back to Court in 6 months’ time to show the Judge that he has not been issued any new tickets. If he is able to do that, his ticket will be dismissed immediately, NO community service and NO fine to be paid. An ACOD/ACD, in comparison, does not work this way.

This is a wonderful example of how the legal system, as represented by 1 Judge, can give a rebellious, out-of-control young man a second chance and maybe even shock him into getting his life back on track. I would not be surprised if that is exactly what will happen. In situations like this, I’ve observed that a client will often thank his/her lawyer endlessly and view the lawyer as a hero. But the truth is that sometimes, the lawyer has very little to do with how the Judge decides to handle the case.

There is no guarantee that either I or any other traffic ticket/criminal defense lawyer can obtain this same type of result in your case or in any other case, but it goes without saying that at least 50% of so many victories in life are due to just showing up, working hard and trying our best and fighting until the very end.

Domestic Violence Cases (Not Just in New York But in General) and How These Cases Intersect with Criminal Court, Family Court and Sometimes ‘Divorce Court’

                        A recent NY Post article involving a former Victoria Secret’s model (March 28, 2016, see p. 3) gives me the chance to discuss the very broad topic of ‘domestic violence’ cases but also other issues that arise from these types of situations. In fact, the topic of domestic violence is so broad that the very same fact pattern from a domestic violence case can be litigated, in NY, by those very same parties in more than 1 Court and all at the very same time. This article focuses primarily on the NY State court system but I assure you that other states have basically the same court system and utilize the same principles. To try to impress anyone who reads this article and already knows about criminal law, I am going to discuss some basics of criminal law, Family Court practice including Orders of Protection, and how divorce cases can also provide a litigant with a separate Order of Protection, all in this same article.

 

                        The Post article describes a case that took place in the Criminal Court in

downtown Manhattan, which is officially known as ‘New York County’ in the NY State court system. I tried to combine my discussion of the criminal charges involved in this case with my discussion about Orders of Protection (in general) but it got too messy, so I had to separate the 2 topics; the material on Orders of Protection follows these next paragraphs where I discuss the criminal charges from the NY Post article. Anyway, this former model allegedly flew into a rage against her then-boyfriend by repeatedly hitting him in the face, throwing his TV remote out of the window, throwing his laptop across the room, and pushing his TV off the stand, according to the ‘criminal complaint.’ Anytime you read about a person who is accused of having intentionally damaged and/or destroyed property belonging to another person without that person’s consent, it’s virtually guaranteed that the defendant will be charged with some degree of ‘criminal mischief.’ Nowhere in the Post’s article did it say what exact degree of criminal mischief this woman was charged with. Only at the very end of the article is it stated that the total value of the property that was damaged was $2,951. Based on this amount, I’m pretty sure that she was charged with criminal mischief in the 2^nd degree, which is a D felony.

 

This case was definitely a ‘domestic violence’ situation and it resulted in the

filing of criminal charges against this woman. But if her then-boyfriend did not call the police and if the police did not find out, on their own, and arrest her, the victim could have sought help from the Family Court, namely in the form of a ‘stay away’ Order of Protection (shortened to ‘O/P’) but that would have been issued on the same day that the victim filed his ‘O’ Petition seeking an Order of Protection. Also in a typical criminal case stemming from a domestic violence situation, at the arraignment this woman’s then-boyfriend would have been issued a Temporary Order of Protection (‘TOP’), most likely a ‘stay away’ TOP. Many people will tell you that Orders of Protection are not to be taken lightly, meaning that if the alleged aggressor is accused of violating it, it will trigger a new, separate criminal case where the charge of contempt of Court will be made against the accused party. If an accused party was fortunate enough to be released on her own recognizance, meaning no bail was set, for the original criminal case, but is then charged with contempt of Court, you can pretty much count on 2 things:  A) the accused will be forcibly arrested either at home or place of employment;  and B) some amount of bail will be set by the Court at the arraignment.

 

                        In NY, the Family Court and the Criminal Court are each entitled to issue an Order of Protection to a litigant, even if it’s for the same litigant and lasting for basically the same period of time. The standard O/P that the general public is used to is a ‘stay away,’ meaning that the accused must stay away from the victim at all times, the accused cannot contact the victim’ directly or through a 3^rd party, etc. In the Criminal Court, these Temporary Orders of Protection, well over 90% of the time, command the defendant to stay away from the victim. But if the exact same domestic violence situation is litigated in either the Family Court or in an open divorce case, there is a realistic chance that the ‘TOP’ that the Court issues to the victim will be a ‘refrain’ TOP which is the other type of Order of Protection that permits the parties to be in each other’s physical presence, meaning they can live together, eat together, complain about the economy together, etc., so long as the alleged aggressor refrains from engaging in abusive, harassing and damaging conduct towards the victim. In all NY Family Court cases, the party that files any type of Petition is called the petitioner and the opposing party is called the respondent (and never the ‘defendant’). But in a divorce case, the person who files the case is called the plaintiff and the other spouse is called the defendant.

 

                        Getting back to the Post’s article, let’s say that besides not stating the exact degree of the criminal mischief crime that was charged, assume that the article also did not state the total value of the personal property that was damaged. So long as the combined value of the items that were damaged (the TV, the remote, laptop, and other items) was more than $250 dollars but did not exceed $1,000, this woman would have been charged with criminal mischief in the 3^rd degree (NY Penal Law Sec. 145.05). There are 2 prongs of the crime of criminal mischief in the 3^rd degree and since the 1^st prong addresses the intentional damaging/ destruction of a motor vehicle, I will not discuss it. Nevertheless, if you know of someone in NY who was accused of intentionally damaging and/or destroying a motor vehicle, 3^rd degree crim. mischief is an E felony, punishable by up to 4 years’ jail time. But what most of the general public does not know is that when criminal charges are discussed in the media, the maximum jail sentence that is mentioned normally is imposed only if the accused party goes to trial and then loses. Even then, there are so many situations where the defendant gets less than the max. jail time.

 

                        Returning to the crime of criminal mischief in NY, the 2^nd prong of criminal mischief in the 3^rd degree is very simple and states as follows:   ‘[a] person is guilty of criminal mischief in the 3^rd degree when, with intent to damage property of another person, and having no right to do so nor any reasonable ground to believe that he or she has such right, he or she (2) damages property of another person in an amount exceeding $250.’ Again, this is an E felony and it is an amazingly simple crime:  go and intentionally break a person’s flat screen TV, car windshield, drone, new bike, and chances are you have committed an E felony. Now compare criminal mischief in the 3^rd degree with the next-highest degree, that being the 2^nd degree of criminal mischief: 

                       

                        In NY, the only difference between the 3^rd degree and 2^nd degree of criminal mischief is the total value of the property that was damaged. The entire definition of the 2^nd degree of this crime is exactly the same as the 3^rd degree, with the only exception that instead of the words ‘in an amount exceeding $250’ (see the previous paragraph), the words ‘in an amount exceeding $1,500’ is how the crime of crim. mischief in the 2^nd degree is defined here in NY. Second degree criminal mischief is a D felony and is punishable by up to 7 years in jail which, once again, is rarely ordered by the judge. I am using the word ‘rarely’ as a term of art but in order to be sentenced to the max of 7 years for being found guilty of this crime, you not only have to lose the trial but the accused, in all likelihood, has to have prior criminal convictions. It is a basic principle of criminal law, personal injury, politics, and life in general that the closer you are to the city (Any city in the US), the more lenient the court system will be. For this simple reason, you’ll see that even if a car accident or other type of personal injury case takes place in the suburbs, the plaintiff’s lawyers will always try to file the lawsuit in the very liberal, meaning plaintiff-friendly, boroughs of the Bronx, Queens, Brooklyn a/k/a Kings County and sometimes in Manhattan (NY County). But somehow, Staten Is. a/k/a Richmond County does not qualify as a ‘liberal’ jurisdiction. Any place where a large number of Republicans live and work is normally not viewed as ‘liberal’ and this is just one of the truths of living in America.

 

I know that if I were not a lawyer and had no knowledge about the legal system or

if I had a child who was charged with a felony (such as crim. mischief in the 3^rd or 2^nd degree), this would scare the daylights out of me. This type of fear is what often causes people to take drastic measures, such as grossly overpaying for a defense lawyer or hiring the very first lawyer that they speak to. In NY, the crime of criminal mischief is separated into 4 separate degrees and the differences are essentially based on the value of the damaged property. Similarly, in NY the crime of larceny is also separated into 5 degrees (the lowest being petty larceny a/k/a shoplifting) and like criminal mischief, the 5 degrees of larceny are based on the total value of the property that is alleged to be stolen and/or misappropriated.

 

                        In this case involving the former Victoria’s Secret model, thankfully nobody died or was seriously injured. The article’s last paragraph states that, ‘[u]nder the deal, [the defendant] agreed to pay [the ex-boyfriend] $2,951 for his ruined electronics, and in return, if she keeps out of trouble for 6 months, her record will be wiped clean.’ In NY, anytime you see the words ‘if he/she keeps out trouble for 6 months,’ you’ll know that the case was resolved by an ‘ACOD,’ shortened for the term ‘adjournment in contemplation of dismissal’ which, pursuant to the NY Crim. Procedure Law, provides that the criminal case will be dismissed not right away but rather in 6 months’ time, so long as the accused party is not rearrested for a new, unrelated crime either in NY or anywhere else (the term ‘ACOD’ is shortened to ‘ACD’ in the boroughs of NY City). This type of dismissal does not require the accused party to return to Court in 6 months’ time and does not result in a conviction going on that person’s record. But the accused party’s FBI report will always have an indication that a criminal case took place. The only way to erase the actual arrest is to have the arrest voided (this is different from just having the final disposition of the criminal case ‘sealed’) and it is extremely difficult to have a person’s arrest voided. The police and/or District Attorney’s office has to conclude that the arrest should never have happened in the first place. If you notice, in our legal system in America when a defendant wins a trial, the jury (or the judge, in a bench trial) never finds the accused to be innocent. The best outcome that a defendant can hope for, after a trial, is a finding of not guilty. For most people, there is a huge difference between the term ‘not guilty’ and the term ‘innocent’ and I understand this completely.

 

                        This former model in the Post’s article received an ACD, despite being charged with at least 1 felony (crim. mischief in the 2^nd degree, a D felony). This goes to show you that in some situations, a person can be charged with a felony but yet still escape with a dismissal, albeit a delayed type of dismissal. In the City of NY, for criminal cases that are basically tantamount to nuisance crimes (loitering, urinating in public, drinking an open container of alcohol in public, etc.), I’ve seen the ACD period shortened from 6 months to just 24 hours. But an ACD often comes with the issuance of a final Order of Protection that, in a domestic violence situation, normally lasts for 12 months from the last day of Court, referring to the day that the defendant is sentenced. The victim in a case like the one described in the Post article (meaning her now ex-boyfriend) would have to vigorously push the DA’s office in order for the Court to not issue a final Order of Protection at all or for it to be changed to a ‘refrain’ O/P that would allow the defendant and the victim to be in each other’s physical presence.

 

The $2,951 amount that the woman in the NY Post article paid is normally

referred to as restitution. Remember that this case took place in the relatively liberal criminal court in New York County where a D felony was disposed via an ACD. In the suburbs, the probability is that for the exact same fact pattern that lead to the same crimes being charged, a defendant who is a former model might not obtain an ACD. In order to obtain that kind of outcome a/k/a disposition, your defense lawyer will have to perform some magic that is too extensive for me to explain here.

 

Orders of Protection

 

The actions that the woman from the NY Post article gave rise to the filing of criminal charges against her. But in many situations, a person’s actions do not rise to the level of any single crime, so the Criminal Court does not get involved at all, meaning no Temporary Order of Protection is ever issued from that Court. Nevertheless, there are many examples of obnoxious, irritating and even dangerous behavior, in domestic situations, that cause the supposed ‘victim’ to want to seek court intervention. In fact, it’s not uncommon for both people in a romantic, domestic or familial relationship to want to seek official protection from the Court, in the form of an Order of Protection.

 

                        A very common example of a ‘non-crime’ that causes many people to seek an Order of Protection not from the Crim. Court but rather from Family Court is excessive drinking; if the drinking is done in the presence of the parties’ child(ren), the Court might even commence a Neglect case against that parent. The Criminal Court will have nothing to do with this type of fact pattern because in the US, a person can drink excessively and so long as he/she does not a motor vehicle (as defined by the NY Vehicle & Traffic Law) or commit any other crime, the excessive drinking itself is definitely not a crime. But the Family Court can get involved by issuing either a ‘refrain’ Order of Protection (ordering the respondent to not drink, either excessively or at all, in the presence of the petitioner and the child(ren). If the fact pattern shows that the case has extreme aspects to it, the Court might issue a ‘stay away’ O/P.

 

In NY, there is no statute stating that any litigant is entitled to possess only 1

Order of Protection at any one given point in time. I currently have a domestic violence situation right now wherein the wife filed an ‘O’ Petition in the Family Court. The judge granted her a Temporary Order of Protection that was only a ‘refrain,’ thereby allowing the respondent husband to remain in the marital residence. But then the police somehow (I am using this term somewhat sarcastically) learned about this situation and asked whether she wanted to file a criminal complaint against her own husband. She said yes, despite not reading English at all, and when the police wrote out a short criminal Affidavit and the wife signed it, her husband was arrested, booked and brought to Criminal Court to be arraigned. But the most frustrating aspect of this domestic violence situation is that the ‘TOP’ that the Criminal Court judge issued at the arraignment is a full ‘stay away’ that only allows the defendant father to have parenting time with their children pursuant to an Order from either the Family Court or the Supreme Court (if they had already filed a divorce case, which they have not yet).

 

                     In NY, the Supreme Court has exclusive jurisdiction to issue a Judgment of Divorce, meaning that this is the only Court that can deem a married couple to be divorced (in NY, there is no ‘common law marriage’ but if a couple is here from another state where the institution of ‘common law’ marriage is recognized, there is case law stating that the couple will be deemed to be a married couple in NY). Many people do not know that the NYS Family Court has concurrent jurisdiction with our Supreme Court, meaning that all the issues that are litigated in a typical contested divorce case (in Supreme Court) can instead be litigated in the Family Court. Of course, well over 95% of the general public who are contemplating divorce, currently going through a divorce, or who are already divorced would not have any idea of this. If you want to know why, I’ll be happy to tell you why, just email me at HenryLungPC@gmail.com or call the office at (516) 248-8253 or (888) 539-2015.

                       

I happen to practice regularly in all of these 3 areas of law that I’ve discussed in

this article (criminal defense law, Family Court practice, and divorce law a/k/a matrimonial law which is a misnomer because there is nothing ‘matrimonial’ about handling a divorce). I have seen a litigant up to 2 separate Orders of Protection at the same time but never 3, which is nevertheless still possible. But to have 3 open and active cases going on at the same time, at least 1 of those litigants will be missing many days of work and/or school. In NY, if this happens to take place, nobody from any of the Courts that issued the Orders of Protection will check up with the other Court(s) to find out if the victim only needs 1 Order of Protection. Unfortunately, that is not how our legal system works.

 

Unless the alleged aggressor a/k/a bad person takes the proper steps to have the

TOP or multiple TOPs rescinded, all of them will stay in place (generally speaking) and even remain in effect after the underlying case (Family Court case, Criminal case and/or divorce case) is over. I always say that Orders of Protection are very similar to mechanic’s liens and Notices of Pendency a/k/a lis pendens in this way:   very easy to file and obtain from the Court but a royal headache to get removed or rescinded.

 

                        If you have read up to this point, I thank you for taking the time to read this material. I have practiced law very intensely for the past 16 years and I know what I am doing. I have to include the standard disclaimer language, as follows:  the information contained in this Article have been prepared by The Law Office of Henry Lung, PC for general informational purposes only. None of the contents of this Article should be considered to constitute legal advice or a legal opinion. Therefore, The Law Office of Henry Lung, PC cannot make any representation or warranty regarding any of the information contained in this Article. The descriptions of the cases that I have handled in the past should not be interpreted as any form of guarantee or promise that I can produce the same results in your case. But I guarantee you that the descriptions of my prior cases, including the final results, are accurate and I say with pride that these clients were very satisfied with how I handled their cases.

                      You should not rely or act upon any information provided in this Article without first consulting with me or an experienced lawyer of your choosing. It goes without saying that I must disclaim any responsibility in connection with any actions that someone might take that are based upon what he/she has read in this Article.

I can be reached at HenryLungPC@gmail.com or call me at (516) 248-8253 / (888) 539-2015. 

I Was Featured on a Segment on 'Help Me Howard': Howard investigates private investigators accused of keeping their client’s cash

In Jan. 2016, I was interviewed by the ‘Help Me Howard’ program which is featured on Channel 11 news (at night). This interview was shown on a Fri. night in Jan. probably on 1/22. Howard interviewed me about a NY debt collection firm that I used to assist in collecting Judgments in NY. This process is sometimes called ‘Judgment enforcement’ or ‘Judgment execution.’ Once a creditor is awarded a Judgment from any Court, even outside of NY, the debtor/defendant can still refuse to pay it. Then instead of the creditor/plaintiff using the Sheriff’s Office (in the suburbs) or the NYC Marshal’s Office in New York City, the plaintiff/creditor can hire an aggressive debt collection lawyer like me to actually collect upon their Judgment, meaning convert it into $$$. A money Judgment is just a piece of paper from Court and if you have a Judgment, you’ll quickly see that it is of no use for paying any bills.

In this interview, I explain how this particular debt collection firm that I used to assist (but thankfully no more) admitted to me that after successfully collecting a Judgment for 1 of their clients, the company actually used the money for themselves instead of sending the proceeds (the amount of the Judgment) to their own client. I had nothing to do with this transaction, they did it on their own. What they did is nothing less than stealing, it is totally wrong, and when that client complained to the ‘Help Me Howard’ show, I said that I confronted this debt collection firm on my own before he contacted me and told them that they had stolen money and had committed ‘grand larceny in the 4^th degree,’ which in NY is an E felony. When the Help Me Howard program contacted me, I immediately agreed to be interviewed about this colossal mess. 

PLEASE CHECK OUT THE LINK BELOW 

http://pix11.com/2016/02/05/howard-investigates-private-investigators-accused-of-keeping-their-clients-cash/

Have a Safe Weekend

If you find yourself in this situation, I handle these type of cases in all of lower NYS. Please feel free to call my office @ (516) 248-8253 or send me an email @ HenryLungPC@gmail.com. 

About Attorney Henry Lung (NY) by Client John D.

False Advertising

I saw this billboard somewhere in Valley Stream 2 weeks ago (see below) and I can't stress how misleading it is. Unfortunately, there is no law in NY that permits a lay person (or the govt., for that matter) to take down a billboard that contains grossly misleading information.

In NY, the total for all filing fees ('court costs') for a divorce comes to $370 (and possibly $5 to $15 more for a Certified version of the Judgment of Divorce, which is the only document that can officially end a marriage). Since a divorce case is a civil case that must be filed in the NY Supreme Court, the initial fee to commence the case (meaning to purchase an index number for your case) is $210. I have seen some plaintiffs try to get a waiver of the filing fees (to proceed 'in forma pauperis,' meaning as a poor person), but I don't know how successful those Motions are. But you can't hire a private lawyer and then seek to have the court fees waived, that is not going to work.

Then the total of all the remaining filing fees, to be paid later in the divorce, are $160: $95 for the 'Request for Judicial Intervention' aka 'RJI,' then $30 for the 'Note of Issue' and finally $35 if both parties have signed a divorce agreement which is called a 'Stipulation of Settlement' in NY. I've noticed that anywhere from 95% to 99% of all divorces wind up being settled with this type of written agreement, even if at the start 1 of the spouses swears to pummel the other spouse with 'I'll never pay you a dime,' 'I'd rather spend/give all my money to my lawyer instead of paying you a penny' and other charming statements like this.

I have heard the above statements and their more vulgar variations many times but have resolved all of those divorce cases. There is a huge amount of 'windbagging' in contested divorce and Family Court cases and it often comes from the lawyers themselves. One very important lesson I've learned from working on contested divorce cases and nasty Family Court cases is that when one party (or both) finally run out of money and/or get tired of losing time from work is when these cases finally reach a settlement and are done.

Contested divorce and Family Court cases are chock full of dealing with emotions. After 15 tough years of dealing with other divorce lawyers, many of whom are head cases, not to mention representing clients of my own who have had their divorce cases 'cut up' into pieces by their first/second/third lawyer, I have learned that in America, divorce cases are basically about TWO THINGS: EMOTIONS AND MONEY (in the various forms that it is sought after in these cases).

In some divorce cases, each party will sign the Stipulation of Settlement right away; in other cases, it is signed in the first 6 months. For some others, the Stip. of Settlement is signed in the first year, others in the 2nd year, and still others it is signed on the eve of trial, during the trial, after the trial, and even while the case is on appeal After the judge has already rendered a written 'Decision After Trial.' The court system gives these Stipulations of Settlement much weight and unless one spouse can prove that he/she was forced to sign the Stip. of Settlement under 'duress' or if that spouse can prove that he/she had no idea what he/she was signing ('mistake' they call it), it will be virtually impossible to convince the court to undo/rescind/reopen the Stip. of Settlement. Therefore, a married person better watch out what they are signing and fully understand all the terms, conditions and obligations. A failure to fully understand everything happens as often with American born clients as it does with people who did not grow up in the US.

It is also true that many divorce lawyers, even those with years of experience, will use 'pressure tactics' (this is a nice way of saying they twist their OWN clients' arms) to sign the Stip. of Settlement. I'm sure that many judges are aware of, since almost all judges used to be practicing lawyers, but I have seen that they often look the other way. In many counties/boroughs when each party is represented by a lawyer, the judge Will Not 'allocute' the parties after a Stip. of Settlement has been signed. In contrast, in all criminal cases when the person pleads guilty, the judge is required to ask various questions such as 'are you pleading guilty because you are in fact guilty,' ' have you had enough time to discuss this case with your lawyer' and 'are you satisfied with the services of your lawyer,' etc. But in many counties and boroughs in NY, in a divorce case after a Stip. of Settlement has been signed, many judges do not conduct an allocution, meaning that the clients who signed the Stip. of Settlement will never appear before a judge and be made to answer these above questions on the record.

In addition, so often I've seen in both criminal and divorce cases where 1 party is so scared (or stressed out, ran out of money, confused, angry, or a combination of these) that when he/she is being 'allocuted' by the judge, that person answers Yes to the question 'did you sign this agreement freely and voluntarily' and Yes to the question 'are you satisfied with the services of your lawyer' and, in criminal cases, 'are you pleading guilty because you are in fact guilty.'

The lesson I've learned is that in our legal system, the judge is not there to play Detective with your case. The judges are not authorized by our legal system to conduct their own private investigation into your case. Throughout a contested divorce, Family Court and criminal cases (and others), if the client does not speak the truth or indicate that there is a problem between him/her and the lawyer, the legal system (as represented by the judge) does not intervene on its own will. I have practiced heavily in the area of contested divorces, Family Court practice and criminal defense (beginning in 2000 but working heavily in these areas of law in 2002) and it's obvious that so many currently divorced people are moderately dissatisfied to highly dissatisfied with their divorce agreements a/k/a Stipulations of Settlement. This is one of many reasons why I'll always view contested divorces as the utmost difficult area of law. A lawyer who does not work in this field of law cannot say that he/she deals with any problem that is similar to getting a panicked phone call on a Fri. afternoon saying that the other parent is late for picking up the child(ren) or a call over the weekend saying that he/she can't get in phone contact with the children who are spending time with the other parent. Nothing that I've come across in the area of criminal defense, immigration law, debt collection a/k/a commercial litigation a/k/a civil litigation, landlord-tenant law and Dept. of Labor cases comes close to this type of stress and tension and warfare.

I should wrap it up here but the portion of this billboard that says 'Spouse's Signature NOT Needed' is also not true. All divorce agreements and even an agreement from Family Court must be either signed by both parties (and notarized) or the terms must be placed 'on the record' before a judge/referee in the Court. The Only example of a divorce situation where the signature of the other spouse a/k/a the defendant is not necessary is when After the defendant spouse has been served (either in person, as required by NYS law, or via an alternate method that has been approved by the court), that defendant spouse fails to file an Answer, fails to request additional time in which to file an Answer, and fails to officially 'appear' in some other way. If and only if this happens, the plaintiff spouse has to file a Motion seeking a 'Judgment of Divorce' (On Default) but the plaintiff only has 1 year from the default committed by the defendant in order to do this. The plaintiff's lawyer does not have 3 years to file this type of Motion.

In Contrast, once a divorce case is commenced in NY, so long as the defendant spouse is served within 120 days, as required by law, and the defendant spouse 'answers' in time, if they eventually sign a Stipulation of Settlement years and years later, that Same index number will still be valid to finalize their divorce. I included this for those people who filed for divorce but then abandoned their case. Unless the divorce case is officially discontinued (costs less than $40), that index number can still be used.

Thank you for reading this article and I hope that this information helps someone. I have friends who live outside of NY but I am confident that the laws in other states governing divorces (and criminal cases) are very similar, if not exactly similar. I have to include a DISCLAIMER that prior results are not to be used as a guarantee or assurance of future outcomes from these cases, but I assure you that the information that I've discussed in this post is the 100% truth. It is also very true that other lawyers (not any of my lawyer friends on Facebook, of course) do not put such an emphasis on disseminating this crucial information to a new or potential client in the same way that I have chosen to.

Vehicle Seizure: What is Permissible and Impermissible in Downstate New York (as of Jan. 2016)

Lawyers often speak as if they know everything, but this is not true. I’ve certainly met enough people who have been given inaccurate to grossly inaccurate advice regarding contested divorces and Family Court cases. But this article has to do with the following issue: IF a leased or financed vehicle (automobile, motorcycle, scooter, boat, etc.) is behind on payments, can the vehicle be seized if found on a homeowner’s property? A few years ago, a young woman (she was not a lawyer) told me that the answer was NO. But tonight (Jan. 18, 2016), I confirmed with an expert who has worked for a private asset recovery company for over 13 years (in downstate NY) that the answer is YES.

I work in the area of debt collection, helping both individuals and businesses collect on their debts (pre-judgment and post-judgment enforcement). But the information that this asset recovery specialist told me tonight, I definitely did not know. He works for a private company, not the Sheriff’s office of either Nassau or Suffolk County and he does not work for any of the Marshal’s offices in NYC. Those offices might follow different policies. Once again, the information in this Article is accurate as of JAN. 18, 2016.

First, if a leased or financed vehicle is stored in a garage that is attached to the house, the asset recovery person cannot break open the lock to the garage door. But if the garage door is UNlocked, the door can be opened and the vehicle seized. If the garage door is open altogether, YES the vehicle can be seized.

Second, if the leased or financed vehicle is stored in a stand-alone garage (not attached to the house), the vehicle cannot be seized if the garage is enclosed by a fence with a lock that is properly engaged. But if the fence doesn’t have a lock on it or if the lock is not engaged properly, the asset vehicle specialist can open the fence. Then once that person reaches the garage door, the same restrictions from the immediate preceding paragraph above remain in effect.

**** All attempts by a vehicle seizure specialist to recover a vehicle are governed by the ‘breach of peace’ regulations (probably a part of the NY General Obligations Law (‘GOL’) or the NYCRR, but I didn’t have the time to locate the exact statute). A privately-hired vehicle seizure expert cannot call the police for assistance for merely the recovery of a vehicle. In addition, if the vehicle’s owner (or person leasing the vehicle) creates a ‘breach of the peace’ by getting in or on the vehicle and refusing to get off/out of the vehicle or lies in the street to block the flatbed/tow truck, etc., the vehicle seizure person I spoke with today said that he would have to stop immediately. The key point is that there cannot be an ‘altercation’ involved when seizing a vehicle.

Third, there are no time restrictions on the time of day that a vehicle can be seized. Unlike the laws that prevent process servers in New York State from serving process on a Sunday (or a Saturday if the person to be served is known to observe Saturdays as holy time – see NY Gen. Business Law Secs. 11 and 13), a leased or financed vehicle that is behind on payments can be seized in the dead of the night. I specifically asked if a vehicle can be seized at 4 AM and the person I spoke with said YES. (Getting back to process servers, on the days that they serve papers, they must serve during ‘reasonable times’ which generally means no earlier than 7 AM and no later than 9 PM). A process server definitely cannot serve process at 11 PM, midnight or any time after 8 PM until 7 AM.

Fourth (getting back to vehicle seizure), in New York City there are further restrictions that all private vehicle seizure companies must adhere to. If the City of New York has placed a boot on the car for unpaid parking tickets (or moving violations), a private seizure company cannot seize the vehicle, period. But if the car owner (or Lease holder) has, on his/her own, put a boot on a vehicle that is behind on payments, that vehicle can definitely be seized. Since the vehicle cannot be damaged during the seizure process, the vehicle seizure expert I spoke with said that a flatbed or ‘tow dolly’ must be used to take the vehicle away.

Fifth, in New York City, the vehicle seizure expert can enter the homeowner’s driveway. But the expert seeking to seize the vehicle cannot step beyond the ‘imaginary line’ that is marked by the mailbox, assuming the property has a mailbox that is closer to the sidewalk than the ones generally attached to the house’s outer wall. Also, in New York City only, the electric meter that is generally found on the side of a typical home creates another ‘imaginary line’ that the vehicle seizure expert cannot go past in order to recover a vehicle.

Sixth, after a vehicle is seized, the owner (or Leaseholder) has the right to pay off the unpaid payments (I’ve never seen an agreement for a financed or leased vehicle that has an ‘acceleration clause’ like the typical Mortgage and Note for a house/co-op/condo has). If the unpaid payments that led to the seizure of the financed/leased vehicle are paid even 5 minutes before that vehicle is auctioned off, the owner (or Leaseholder) can recover the vehicle itself.

I also thought that leased vehicles that were seized for non-payment were normally not auctioned off, but the vehicle seizure expert I spoke with said that leased vehicles that are seized will be auctioned off as well.

Seventh (and lastly), some banks (‘lienholders’) will honor a self-imposed moratorium from seizing vehicles that are behind on their payments, but of course those banks will never share with the general public when and for how long these moratorium(s) is/are. When the person I spoke with said this, I thought of landlord-tenant law and the moratorium (no evictions carried out) that the Sheriffs on Long Island and the Marshals in NYC honor from approx. Dec. 15 until Dec. 31 of each year. This moratorium was enacted after a family with children, from several decades ago, was shown on TV having no place to live after they were evicted a few days before Christmas. Nowadays there are generally no evictions that take place starting right after Dec. 15 of each year.

I hope that this information helps someone out! My email address is HenryLungPC@gmail.com and my address is 92 Willis Av., Mineola, NY 11501. Apart from the commentary that I’ve injected in this article, the remaining information was taken from this expert who has worked for a private vehicle seizure company, on Long Island, for the past 13 years. I first asked him this information in early Dec. (2015) and I confirmed all these details again with him today.

The following is the standard disclaimer language that you’ll find on most lawyers’ websites: the information above was compiled for informational purposes only and should not be considered legal advice. I (Henry Lung) make no representations or warranties regarding any of the information contained in this Article. I, Henry Lung, am disclaiming any responsibility and liability in connection with any actions taken (or not taken) based upon the reader’s reliance on the content of this Article. Lastly, by providing information in this manner, I (Henry Lung) do not intend to create a lawyer-client relationship of any kind with the reader. The only way that you, the reader, can become a client is by way of written agreement signed by both you and your attorney, whether your lawyer is Henry Lung or someone else.