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The many reasons car accidents happen

Human error and mechanical problems are two of the most common reasons why car accidents occur. For instance, if a driver is under the influence of alcohol, that is generally seen as human error. The same could be true if a driver was in an unfamiliar part of New York state and was distracted looking at street signs. If an individual is traveling too fast for road conditions, that would also be human error.

Mechanical problems could result from a faulty car part or the fact that a person didn't maintain his or her vehicle. For instance, a person who is driving on bald tires may be at fault for an accident that occurs because it isn't safe to use tires without proper tread. The same is true if a person drove a vehicle that had squeaky brakes or other problems that a reasonable car owner would have known to remedy.

Alternatives to incarceration may decrease repeat offender rate

The United States holds the record for the most incarcerated individuals in the entire world. In 2008, the numbers peaked with 1,000 out of every 100,000 adults being in state or federal prisons. Since this time, many jurisdictions, including those in New York, have instituted a variety of changes to decrease this number. This includes reformations in police practices, decriminalization of some minor offenses and offering rehabilitation options to low-risk offenders. As a result of the changes, incarcerations have decreased to 830 per every 100,000 adults in the United States.

In 2018, the First Step Act was passed by Congress. The newly-instituted law helps reduce sentences for nonviolent federal prisoners through work training programs and good behavior. Though many criminal defense experts believe the First Step Act was a positive step, it only affects a small fraction of federal prisoners and doesn't affect those in state prisons. Experts are encouraging additional changes in order to reduce the current prison population.

New Hope for Child Sex Abuse Victims in Hands of NYS Legislature

     For far too long, child victims of sex abuse have been largely unable to sue their attackers and those that protect them, because of NYS's antiquated statutes of limitations.  As the New York Times pointed out in an editorial published in January of 2018 (https://www.nytimes.com/2018/01/11/opinion/albany-child-victims-act.html) by the time most victims of child sex abuse are able to report the crime, or think about filing suit, they are barred from doing so by NYS law.

     The reasons for the delays in reporting are many, but mostly center upon the immaturity of the victim.  Immaturity that the predator counts on when choosing their victim.  That immaturity works to impede enforcement of legal rights both in criminal and civil court.  Several states in the U.S. have eliminated this hurdle by allowing a longer time for such victims to seek arrest or sue, and by allowing the opening of a short window to sue, regardless of how long it's been since the assault.  But so far, New York has failed to move in step with other progressive states in the U.S.  That is expected to change.

     Until recently, the only impediment preventing such reforms in NYS was Republican control of the NYS senate.  The Democratically controlled assembly and Governor Cuomo have demonstrated their overwhelming support for "The Child Victims Act", Assembly Bill A05885A, which would allow the reforms.  The bill passed the assembly in May of 2018 by a vote of 130-10, a vote which no doubt included some Republicans.  Sadly, Republicans in control of the senate have refused to even allow a vote on the bill.

     Now that the NYS Senate is also controlled by the Democrats, the bill is expected to come to the floor for a vote, and we are urging its full passage.  It is time for NYS to join the march of progressive legislators around the country and stand up for victims of child sex abuse.

     If you or anyone you know has been the victim of sex abuse, especially a child by a member of the clergy, please contact us at Kelly & Rubin, LLP.

MAYOR OF POMONA N.Y. SUED FOR MALICIOUS PROSECUTION

The mayor of Pomona, N.Y. along with the Village and the Village Trustees have been sued in a Federal Civil Rights lawsuit filed in White Plains.  The suit alleges that the defendants violated the civil rights of the plaintiff, former Pomona Village clerk Lisa Thorsen, by having her arrested.  The arrest was based on a three-year-old bogus allegation that Thorsen stole postage from the village postal meter without permission.

The criminal case against Thorsen was dismissed by a Judge in nearby Ramapo, at the request of Thorsen's attorney, shockingly, with the consent of the prosecutor, who agreed that the arrest and prosecution of Thorsen was "groundless and politically motivated".

At Kelly & Rubin, LLP., we have been specializing in protecting the rights of those falsely accused for over 25 years.  We are looking forward to standing up for Ms. Thorsen against those who falsely accused her and getting her the just compensation she is entitled to.

First Step Act seeks to reform federal criminal sentencing rules

After decades of tough-on-crime laws and mandatory minimum sentences that sent people in New York to prison for years, the First Step Act marks a transition in attitudes toward criminal sentencing guidelines. The bill won approval in the U.S. Senate on a vote of 82 to 12. Although critics call it a "prisoner release bill," the legislation, if it succeeds in becoming law, would provide sentencing relief to people convicted for crack cocaine offenses prior to 2010.

In 2010, the federal government corrected disparities in criminal sentences that required longer sentences for crack cocaine convictions compared to regular cocaine convictions. People convicted before the reform, however, remain in prison under the previous rules. If signed into the law, the First Step Act would grant prisoners convicted on crack cocaine offenses the ability to petition for release.

Driving safely in the winter months

New York residents should consider the tips offered by AAA and the National Safety Council when it comes to safe winter driving. First, vehicles must be made ready for cold conditions. A mechanic could check components like the brakes, ignition and battery while also assessing tire wear, tire pressure and antifreeze levels. Drivers should also know the function of safety features like anti-lock braking, which comes in handy during this season.

Furthermore, it's important for a vehicle to contain an emergency kit containing essentials like jumper cables, tire chains, an ice scraper, a first-aid kit and flares or reflective triangles. When stranded in the snow, a driver should not push their vehicle out. Instead, it's better to signal distress with a brightly colored cloth. Drivers are encouraged to keep a container of gas and fresh antifreeze in the car as well.

The contents of the First Step Act

The First Step Act, which is a bill that is being considered in Congress, might have an effect on some inmates in New York. It will make the 2010 Fair Sentencing Act, which addressed the sentencing disparity in cocaine and crack cocaine cases, retroactive, and this will affect approximately 2,600 inmates. They will still have to go to court to address the issue.

The act will also lessen the length of some automatic sentences and expand the number of people for whom judges are allowed to set aside mandatory minimum guidelines. Those guidelines apply to people with no criminal history, but the act will include people with only a minor criminal history.

Avoiding a car crash in bright sunlight

When people in New York head out onto the road, they may face unexpected dangers from the most unlikely of places. While few people think of a clear day as a driving hazard, the bright sun glare that can accompany a rising or setting sun can make it difficult for drivers to see, leading to traffic snarls and dangerous crashes. Indeed, the risk of a car accident is 16 percent greater in bright sunlight than in average weather. However, there are tips that drivers can keep in mind to improve their safety.

Sunglasses can help. They can reduce the intensity of the sun's brightness while protecting drivers' eyes from the dangers of UV rays. By keeping sunglasses stored in the car, drivers can prepare to help avoid car crashes caused by excessive glare. The built-in sun visors in almost all cars and passenger trucks can also help a driver's vision. They can be positioned to block some level of sun coming through the windshield or side windows. While they are limited in coverage, they are also designed not to hinder a driver's visibility.

Sexual assault standards in schools may change

Proposed rule changes would provide greater rights to students in New York or elsewhere who are accused of sexual assault. During the Obama administration, schools were encouraged to use a preponderance of evidence standard in such cases. This means that a person could be found guilty of sexual assault by a school if it seemed more likely than not that it occurred. The changes proposed by Betsy DeVos would allow schools to choose their own standard of proof.

It may also be possible for students to use mediation as a means of resolving disputes regarding sexual harassment. Under previous rules, mediation was discouraged as it was thought to be potentially traumatizing to a victim. Schools would only be held liable in cases where a sexual assault took place on its campus. Furthermore, it would only be liable in cases when it had knowledge of the event.

Elements of an assault charge in New York

In order for the government to get a criminal assault conviction in New York State, they have to prove that any injury caused by the defendant was intentional, meaning that it was not accidental.  It is necessary to prove that there was an intention by the defendant to cause "physical injury" or "serious physical injury".  Both of these terms have a specific meaning in the law; they do not have the general meaning we all use in everyday life.

It may be possible to infer an intention to cause physical harm based on the circumstances of the injury. For example, if a defendant pointed a gun at someone at close range and shot the person in the chest, that might indicate that the intention was to cause physical or serious physical injury, or of course to kill.  If the defendant fired a gun several times from close range and missed, one might argue that "missing was the intention" and there was no desire to hurt anyone.  On the other hand, firing a shot intentionally, and grazing another person might allow the government to argue a legal theory called "transferred intent".  For cerain types of assault charges, it is not necessary to demonstrate that the injury was intentionally caused.  Reckless or negligent assaults can be charged too.

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