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George F. Hildebrandt, Attorney at Law
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A Serious Offense Requires A Proven Defense
A Serious Offense Requires A Proven Defense

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Collateral Consequences of a Criminal Conviction
By George Hildebrandt of George F. Hildebrandt posted in Criminal Law on Saturday, September 2, 2017.

A criminal conviction may have an impact in a person's life even after the person has served their sentence and resumed living a law-abiding life. Beyond the social impact of having a criminal record, a conviction can have a number collateral consequences that can negatively impact someone's life. These consequences are varied, are often long-lasting (sometimes permanent) and in some cases have more serious consequences that the actual sentence that was imposed.


First, convictions can have economic consequences. For example, some convictions can lead to a person being denied or being restricted from receiving housing assistance and federal student aid. In terms of employment, a conviction may result in the loss of a professional license, or present a difficult hurdle or bar to future employment or licensing.

A criminal conviction can also mean the loss of the right to own firearms. Conviction for a felony, or even a misdemeanor involving domestic violence, is a bar to the possession of a firearm or ammunition. Possessing a firearm after such a conviction is a federal offense, punishable by 10 years' imprisonment. The bar to firearms' possession extends even to misdemeanor domestic violence offenses committed "recklessly," rather than intentionally.

A conviction for certain crimes, or resulting in sentences of a certain length, can have dire consequences for a non-citizen that can affect the person's life and ability to remain in the U.S. with their family. The conviction and sentence can not only make the person deportable, but prevent them from arguing to an immigration court that their having a family, employment and longtime residence in the U.S. should be a consideration. They may also be barred from re-entering the country. Crimes that can have significant immigration consequences include drug offenses and so-called crimes involving moral turpitude, such as theft and fraud. The potential consequences are so severe that the Supreme Court has held that the Constitution requires lawyers to advise their clients of immigration-related collateral consequences.

Relief is available for some of these collateral consequences, and if you are negatively affected by your convictions, you should discuss possible ways to regain your rights with your attorney.

Contact a Criminal Defense Attorney

If you are facing state or federal criminal charges in New York State, you should contact an experienced criminal defense attorney to help you fight the charges and avoid conviction. A conviction can affect your life in many ways for a long time to come, and may not always be expunged or sealed. Contact the experienced Syracuse criminal defense attorney George F. Hildebrandt, serving clients throughout Upstate NY, Central NY, Northern NY and Western NY.

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WHAT TO DO IF THERE IS A WARRANT OUT FOR YOUR ARREST
By George Hildebrandt of George F. Hildebrandt posted in Criminal Law on Saturday, March 4, 2017.

Being arrested on a warrant can be an unsettling event. Moreover, having the police knock urgently on your door and demand entry, often in the early morning hours, can not only be disturbing, but dangerous, to you and your family. The police are wary about who they may encounter and what danger they may face, and often come in force and heavily armed. People who wake up to yelling and commotion and the presence of heavily armed intruders may assume they are facing home invaders, not the police.

In addition, having an arrest warrant executed by the police in front of your children or at your job can not only be embarrassing, but result in the loss of your job. Because of this, it is in your best interest to seek legal advice and representation if you learn or believe that a warrant has been issued for your arrest. Seek adequate and competent legal advice and representation from an experienced criminal law attorney to help you with your case.

What to Do if There is a Warrant Issued for Your Arrest

In New York, a warrant can be issued either as a bench warrant or an arrest warrant. A bench warrant is typically used when there has been a failure to appear in court on a case that's already pending. Arrest warrants are typically used when the police believe there is probable cause that you have committed a crime and want to arrest you. If the offense for which the warrant has been issued is not serious, then more than likely the police are not constantly looking for you and you may not be aware that a warrant for your arrest exists until long after the warrant is issued. Often, you find out about a warrant for your arrest during a traffic stop or through word of mouth.

If you have been told that you have a warrant out for your arrest, you have a few options:

● Search online to see if there is a warrant that is present under your name,

● Contact the court or law enforcement to see whether or not there is a warrant for your arrest, or

● Seek legal advice from an attorney.

The most important of these options is seeking legal advice from an attorney. An attorney can often determine if a warrant exists through access to records and information that you may not have. More importantly, a lawyer can usually find out which court issued the warrant, get information on the charges and arrange with the police for you to appear voluntarily to surrender on the warrant. Doing so is not only safer for you and your family, but avoids the embarrassment of being arrested at work or in front of your loved ones, provides an opportunity to plan for posting bail if necessary and allows your attorney to be present during your contact with police and at your first appearance in front of a judge, when bail is set. Your chances of making damaging admissions that can be used against you are minimized, and your chances of being released on your own recognizance or on a bail you can make are thus greatly increased.

Need Legal Advice?

Having a warrant issued for your arrest can be overwhelming, especially if you are unsure of the event that made a warrant for your arrest possible in the first place. Though it may seem like your situation is hopeless, that is not true, and you are not alone. If you or a loved one have been charged with a crime in New York, contact experienced criminal defense attorney George F. Hildebrandt for a consultation about your case. He is dedicated to making sure that each and every case receives the utmost care and attention.

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INTERACTING WITH POLICE OFFICERS DURING AN ARREST
By George Hildebrandt of George F. Hildebrandt, Attorney at Law posted in Criminal Law on Monday, May 30, 2016.

Sometimes police arrests do not go smoothly, and people get hurt or die while in police custody. With this issue gaining national attention, it is not uncommon for people to pull out cell phones and start recording when the police try to arrest their friends, family members, or even strangers. Recording the police interaction or trying to protest the arrest of another person, however, sometimes results in the person's arrest for obstruction or resisting arrest.


In New York State, it is unlawful for a person to impair, obstruct, or prevent a police officer from carrying out an official function of his job. A person who prevents or obstructs the police officer can be charged with obstructing governmental administration, which is a Class A misdemeanor. The obstruction does not have to be physical, and intimidation and other independently unlawful acts aimed at interfering with police officers carrying out functions of their jobs can lead to the charge.

What type of conduct constitutes obstructing governmental administration is often far from clear. The police may have a broader definition of what constitutes obstructing, and may arrest you for conduct that will later be determined to have been legal. Recording police officers in a public place while they arrest someone may not be illegal, but if it is done in a way that prevents the officers from completing the arrest, it can be the basis for an obstructing charge. Yelling threats or other threatening behavior directed at police can also be considered intimidation enough to charge a person with obstructing.

If the interference with the arrest reaches a certain point, the person causing the interference may be charged with resisting arrest. Resisting arrest applies to situations in which a person prevents police officers from arresting him, as well as in situations where the person prevents police officers from arresting another person. It is more common for the person being arrested to be charged with resisting arrest for doing things like refusing to put his hands behind his back, or moving his arms about to prevent officers from handcuffing him. One defense to a resisting charge is that the arrest was unlawful, for example if the police did not have probable cause for the arrest. Note that simply running from the police is not itself sufficient probable cause for an arrest. A good criminal defense lawyer can challenge a bad arrest and defeat a charge of resisting arrest.

Contact an Experienced Criminal Defense Attorney

If you are in a situation where another person is about to be arrested, you should try to be as calm as possible and not do anything that could be perceived as interfering with the arrest. If you are arrested or cited for obstruction of governmental administration or resisting arrest following an encounter with the police, you should contact experienced Syracuse criminal defense attorney George F. Hildebrandt for a consultation.

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CRIMINAL CHARGES FOLLOWING FATAL DWI ACCIDENTS
By George Hildebrandt of George F. Hildebrandt, Attorney at Law posted in DWI on Sunday, May 22, 2016.

Criminal Charges Following Fatal DWI Accidents


The dangers of driving drunk to a driver and other road users cannot be understated. When a driver who operates a vehicle while under the influence causes an accident, the other people involved in the accident can be seriously injured, and in some cases, death may occur. When a person dies from an accident caused by an intoxicated driver, the driver's criminal liability for driving while intoxicated rises from a simple DWI charge to a more serious charge of vehicular manslaughter.

A driver may be charged vehicular manslaughter in the second degree if he or she causes the death of another person when driving while intoxicated. This is a serious charge that carries a penalty of up to seven years in prison. If more than one person dies in the accident, the charge could be elevated to vehicular manslaughter in the first degree, which is a Class C felony with a maximum of fifteen years in prison. A driver can also be charged with vehicular manslaughter in the first degree when the driver has a blood alcohol content of .18%.

Under New York law, there is a presumption that if an intoxicated driver causes an accident that results in the death of others, the accident was caused due to the driver's intoxication. The presumption does not mean that if the prosecution can show the defendant was intoxicated at the time of the accident he or she is automatically found guilty. The presumption is rebuttable, and the driver can present evidence of another driver's' negligence in causing the accident.

If in addition to driving while intoxicated, a driver is found to have caused death by driving recklessly and while his or her blood alcohol content is .18%, the driver can be charged with aggravated vehicular homicide. This is the most serious charge that an intoxicated driver can face if he or she causes the death of others, and it is a Class B felony punishable by up to 25 years in prison.

Reckless driving can be the basis of other manslaughter charges even without the driver's intoxication. Therefore, if the prosecution cannot prove intoxication for the purposes of an aggravated vehicular homicide charge, the defendant might still be convicted on a charge of manslaughter if he recklessly caused the death of another person.

Contact Us For Legal Assistance

A vehicular manslaughter conviction can mean years in prison. If you or a loved one has been charged with vehicular manslaughter or any other charge related to driving while intoxicated, you need an experienced DUI/DWI attorney handling your case. Contact experienced Syracuse criminal defense attorney George F. Hildebrandt for a consultation today.

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CONSTRUCTIVE POSSESSION DRUG CHARGES
By George Hildebrandt of George F. Hildebrandt, Attorney at Law posted in Criminal Law on Sunday, May 15, 2016.

Drug possession charges can lead to many years in prison if a person is convicted under New York's drug laws. While this result may seem clear cut when the charged person is arrested in actual possession of the drugs, it may be more confusing to hear of a person's conviction when the person does not have the drugs in hand at the time of arrest. However, through constructive possession, the government can prosecute and secure a conviction for drug possession for a person who is not in physical possession of the drugs at the time of the arrest.

Under the law, possession can be found in two circumstances. In the first, a person is said to be in possession of something if he or she is actually holding it or it is in his or her physical possession. Under the second legal definition, a person is said to be in possession of an object if he or she exercises dominion or control over the area in which the object is found, even if the object is not in his or her physical control. This second definition is known as constructive possession. Constructive possession can also be found if the charged person had dominion and control over another person in actual physical possession of the drugs and could have ordered the person to destroy them.

Constructive possession can be charged when the police arrest one person for possession of drugs found in a house occupied by multiple people. The person arrested does not have to own the home in order to be considered to have dominion and control over an area in which drugs are found. Someone who stays several days a week in a bedroom in a house owned by another person, leaves clothing and other belongings there, or even receives mail at the house, can be said to in control of that bedroom. If drugs are found in the bedroom, the occasional occupier, and not the homeowner, can be charged with drug possession under a constructive possession theory. This is true even if other people had access to the room in which the drugs are found.

There are defenses to a constructive possession charge, for example, if the area in which the drugs were found can be determined to be a common area over which several people exercised equal domain and control. Remember, close proximity to the drugs alone is not enough to prove constructive possession. Additionally, the prosecution has to prove that the charged person knew of the presence of the drugs. This can be easy if the drugs are found in plain sight by the arresting officers, however, if the drugs are hidden, especially in a place that others had access to, this may be more difficult for the prosecution to prove.

Contact an Experienced Criminal Defense Attorney
If you are a facing New York State drug possession, manufacturing, or trafficking charges, you need an experienced criminal defense attorney representing you. Contact experienced Syracuse criminal defense attorney George F. Hildebrandt for a consultation today.

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SELECTING A JURY FOR A CRIMINAL TRIAL
By George Hildebrandt of George F. Hildebrandt, Attorney at Law posted in Criminal Law on Sunday, May 8, 2016.


When a defendant decides to choose a jury trial over a bench trial, where the case is heard by a judge only, jury selection becomes very important to the outcome of the trial. The defense is required to follow certain procedures in selecting, and excluding, potential jurors. At the outset, jury selection starts with a large pool of people who have been summoned to serve on a jury. Gradually, through a process called voir dire, the jurors who will hear the case are selected.


Voir dire is a process through which the prosecution and the defense both get a chance to question potential jurors in an attempt to screen for bias, and otherwise determine a juror's ability to serve on the jury. The stated objective of voir dire is to empanel a jury that is both fair and impartial. As the questioning is done, the prosecution and the defense each have an opportunity to excuse some potential jurors based on their answers to the questions asked. In excusing jurors, both sides can use peremptory challenges or excuse a potential juror for cause.

A peremptory challenge is a challenge to the inclusion of a person on a jury for any reason. Each side gets to use a certain number of peremptory challenges. Once a juror is excused, the attorney cannot undo the use of the peremptory challenge. Therefore, using a peremptory challenge is a delicate balance because it is possible that a defense attorney may use a peremptory challenge on a potential juror, and then later discover that the jury pool is much less favorable than expected.

When a juror expresses an opinion or answers a question in a way that reveals a bias or an inability to effectively serve on the jury, the juror may be excused for cause. Grounds for challenges for cause include the juror's being related to a person connected to the case, and more often, having a state of mind that is likely to preclude him from rendering an impartial verdict.

When jurors are excused, each side and the judge have to be vigilant that the party using a peremptory challenge or seeking to have a juror excused for cause is not hiding an improper motive, for example, attempting to exclude all jurors of a certain race or gender. Jurors cannot be excluded on the basis of issues or characteristics that implicate the Equal Protection clause of the Constitution.

Apart from the technical and procedural rules to be followed in jury selection, the defense attorney may look at many other considerations that make up the kind of juror the defendant believes is either well suited for the case, or might be better excused if possible. Jury selection is a highly critical aspect of the trial, and effective jury selection comes with experience.

Contact an Experienced Criminal Defense Attorney

If you are a facing state or federal criminal charges, you need an experienced criminal defense attorney representing you. Contact experienced Syracuse criminal defense attorney George F. Hildebrandt for a consultation.

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THE CONSTITUTIONALITY OF IMPLIED CONSENT LAWS
By George Hildebrandt of George F. Hildebrandt, Attorney at Law posted in DWIon Sunday, April 24, 2016.
 
On April 20, 2016, the United States Supreme Court heard arguments in a case that could mean changes to implied consent laws across the country. The case, Birchfield v. North Dakota, presents the question of whether or not a driver can be criminally charged for refusing to submit to a blood alcohol test after an arrest for DUI. The law at the center of the case made it a misdemeanor for a driver suspected of a driving under the influence to refuse to submit to testing that would determine the driver's blood alcohol content. These kinds of laws or others allowing for a driver's license to be suspended or revoked for testing refusal can be found in every state across the United States.
 
Implied consent laws, so called because and every driver who is issued a driver's license are presumed to have consented to such testing, generally allow law enforcement officials to conduct testing to see if a driver is impaired. The results of the test can later be used as evidence in court when the driver is criminally charged with DWI. In New York State, a driver is required to submit to chemical testing when arrested for driving while intoxicated or while impaired by drugs. Although the police officer may ask for your permission to take the test, legally you are presumed to have already consented to the testing. In New York State, the failure to submit to the testing is not in itself a criminal offense, although it can lead to the suspension or revocation of your driver's license and the imposition of civil penalties of over $500.
 
Law enforcement officials have often argued that because a person's blood alcohol level dissipates over time, there is an immediate or exigent reason to require testing without first obtaining search warrants. However, the Supreme Court in an earlier case ruled that while this may be true in some cases, it does not create a general exception to the Fourth Amendment requirement for a warrant before conducting nonconsensual searches. In doing so, the Supreme Court did not invalidate the idea of implied consent laws; it only held that once a person refuses the test - thereby revoking any "implied" consent - the police have to get a warrant to compel the test. The Birchfield v. North Dakota case may provide further answers as to what other requirements law enforcement officials should meet before compelling drivers to take a DWI blood test that may later be used against them in court.  
 
Drivers should note that a warrant is not required for a driver who knowingly and voluntarily consents to a blood alcohol test. Furthermore, these rulings do not affect field sobriety tests, and police officers pulling someone over for on suspicion of driving while impaired may still generally conduct these without first obtaining a warrant.
 
Contact an Experienced DWI/DUI Attorney
 
If you are fighting your license suspension after a DWI/DUI stop, or are facing DWI/DUI charges in Syracuse, New York, contact experienced Syracuse DWI/DUI attorney George F. Hildebrandt for a consultation today.

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NEW YORK'S PROPOSED "TEXTALYZER" LAW
By George Hildebrandt of George F. Hildebrandt, Attorney at Law posted in DWIon Sunday, April 17, 2016.
When a person drives drunk, it is usually possible for the police to test for the person's blood alcohol content (BAC) soon after the accident, which can show whether or not the driver was committing a crime by driving while his or her BAC was over the legal limit. This is not so easy when a driver is texting and driving; police cannot easily identify after an accident whether the driver was driving while texting. This may soon change if a new bill proposed by New York State lawmakers becomes law.
Currently, under New York State driving while intoxicated (DWI) laws, a driver has to submit to testing when suspected of DWI, and if the driver refuses such testing, he or she may have his or her driver's license revoked. The proposed law, which would be known as "Evan's law," seeks to make a similar rule with regards to drivers suspected of driving while texting.
The police would be allowed to request that drivers submit to having their cell phones checked, by allowing the police to use a device to access the phone's data to determine if the driver was texting while driving. The law would apply if the driver was involved in an accident that causes injuries or property damage. Drivers who refuse this testing would also face license revocation. New York State law already prohibits drivers from engaging in a number of cell phone related activities while driving, including playing games, talking on a handheld phone, texting, or browsing the web. Violators face significant points on their license and various fines.
If the proposed bill becomes law, it is likely to be challenged on constitutional grounds due to the privacy interests at stake, and the general requirement of search warrants for police searches. The U.S. Supreme court held in the 2014 case Riley v. California, that the police cannot search a cell phone seized from a person who is under arrest without first obtaining a warrant. Police officers may not be able to get a warrant in the minutes after an accident, and they might argue that this would prohibit or slow down their ability to collect evidence.
It is possible, however, to gather texting or call logs from a driver's cell phone carrier after an accident and pursuant to a lawful search warrant. Unlike a person's BAC, which can dissipate with time, a person's call or text history is not as easily erasable from the carrier's records, even if it may be from a person's device. Therefore, there is an argument that while the intent of the law may be noble in trying to cut down on the number of distracted drivers, there is a compelling argument that the law is an unnecessary overreach of police power. There may also be concerns regarding what other information the police may be able to access once they download a person's cell phone data after an accident. The level of access to information beyond the last text sent would be troubling to most drivers.
Contact an Experienced Criminal Defense Attorney
If you have been arrested for a DWI or other criminal charges, you should contact an experienced criminal defense attorney for a consultation before making any statements to the police. Contact experienced Syracuse criminal defense attorney George F. Hildebrandt for a consultation today.

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MURDER BY EXTENSION: THE FELONY MURDER RULE
By George Hildebrandt of George F. Hildebrandt, Attorney at Law posted inCriminal Law on Sunday, April 10, 2016.
It may seem unbelievable that a person can go to prison for murder when the authorities know that a different person killed the deceased and these facts are presented to the jury. However, it is possible for a person under certain circumstances to be legally charged with murder based on another person killing the victim, under what is commonly known as the felony murder rule. In some states, the felony murder rule has led to some outrageous convictions, including one case in which a man was convicted for a murder committed by others while he was asleep in bed at the time of the murder.
In New York State, the felony murder rule can be found as statutory law allowing a person to be charged with second degree murder when he or she acts alone or in concert with others in the commission of certain felonies and he or another participant causes the death of another person. If the death occurs during the escape immediately following the commission of the crime, those involved in the crime can still be charged with second degree murder. The law does not apply when the death is of one of the people involved in the crime. Some of the felonies covered under this law include robbery, burglary, kidnapping, aggravated sexual abuse, and arson.
Perhaps the most surprising thing about the felony murder rule is that the person does not have to have the intent to kill in order to be convicted. Death can result from an accident, for example if the accused and others were in a getaway car and were involved in a car accident that kills someone in the other car. This and the fact that a person can be convicted and sent to prison based on another person's actions, in many cases for the same length of time, has led to the rule being criticized.
Fortunately, the law also allows for an affirmative defense if the charged person did not act alone, and:
● Did not commit, order, request, or assist in the killing;
● Was not carrying a gun or other deadly weapon or any other object that could have caused death or serious physical evidence;
● Did not know or reasonably suspect that the other people he or she was committing the felony with were armed with a deadly weapon or any other object that could be used to cause death or physical harm; and,
● Did not know or reasonably suspect that the other people he or she was committing the felony with would do something that could cause death or serious physical harm.
If the accused can present sufficient evidence of any of the above, he or she may be able to avoid conviction.
Contact a Criminal Defense Attorney
If you or a loved one are charged with felony murder, you need an experienced attorney criminal defense attorney who has handled homicide cases many times in the past. A murder charge is a serious charge that can result in life in prison. Contact experienced Syracuse criminal defense attorney George F. Hildebrandtfor a consultation.

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NEW YORK STATE AND REVENGE PORN
By George Hildebrandt of George F. Hildebrandt, Attorney at Law posted inCriminal Law on Monday, April 4, 2016.
There have been many reports of people's intimate and explicit videos being shared online without their knowledge or consent. The videos and photographs have been of both celebrities and everyday people, and there are even websites dedicated to hosting these videos and images. Because in most cases these videos and photographs were originally taken with the consent of all parties, and only later released by one party after a relationship has gone sour, they are referred to as revenge porn.
New York State does not have a law that specifically deals with revenge porn.New York has laws that prohibit the secret filming of a person without their consent, either naked or engaged in sexual contact. Additional laws prohibit the dissemination of such videos or photographs knowing they were illegally obtained. There was a change in 2014 that expanded the law to include situations where a person was engaged in sexual conduct but his or her sexual parts were not shown, as long as another person's sexual parts were shown in the same image. The changes, however, did not make it illegal to post images or video that were originally created with the consent of all involved.
There are numerous laws that can apply to the distribution of explicit videos and photographs, but the laws mainly deal with nonconsensual recording or the recording of minors, leaving no real way of prosecuting people accused of distributing revenge porn. This does not mean that a person is free to make and distribute revenge porn without consequences. If a person uses the videos and photographs to blackmail or extort a person featured in the video, and receives either money or another benefit, they can be charged criminally.
In states where there are no criminal laws prohibiting the distribution of revenge porn, a victim of a revenge porn posting could file a civil suit against the person providing the videos for posting and the person or business hosting the website that displays them. In a civil suit, the victim could receive monetary compensation, and the defendant might be ordered to take down the images. Another somewhat unorthodox approach is to force the videos to be removed from the websites using copyright laws. This approach would require the victim of the posting to register the images before proceeding, which many may not want to do.
It has been suggested that the enactment of revenge porn laws in New York would run afoul of First Amendment protections for the person who posts the videos or photographs. This is because such postings could be considered speech, and prior restraints on speech are generally disfavored. Nevertheless, there is a push for stronger criminal laws that would look at consent at both the time of filming or taking of the photographs, and the time the videos and photographs are distributed. Only time will tell how severe these laws will be, and how effective they will be.
Contact Us for Legal Assistance
If you have been charged with a state or federal crime in New York State, contact experienced Syracuse criminal defense attorney George F. Hildebrandt for a consultation.
New York State and Revenge Porn
New York State and Revenge Porn
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