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Checklist For First Time Home Buyers

6/15/2012

For many, the purchase of a home can be an intimidating process. Buying a first house or apartment often means borrowing hundreds of thousands of dollars and choosing where to raise a family. With all of this over one's head, it can be helpful to begin the purchasing process by learning of the major steps that one will encounter. For this, our office has a created the Checklist For First Time Home Buyers. the checklist is copied and pasted below. For better formatting, download the pdf to save or print. Enjoy!

Download First Time Home Buyers Checklist - PDF

Find a House/Apartment - Locate a House or Apartment you would like to purchase and at a price you can afford.
Place a Bid on the Property - Contact the Seller and place an offer to buy the property at a specific price. If the bid is accepted, the Seller may ask the Buyer to sign a Binder, which is a form document stating that the bid was accepted. It is NOT a contract to buy.
Hire a House Inspector - The Inspector will: (1) Examine the structural integrity of the property and house/apartment; (2) Check whether the property is in compliance with State or local building codes; and (3) Test for hazardous conditions such as gas leaks, termites, etc. If the Inspector discovers a problem, the Buyer has three options: (a) Back out of the deal; (b) Go forward despite the problem; or (c) Renegotiate the price based on the problem.
Hire a Real Estate Attorney - Although many find it useful to have an attorney at earlier points in the buying process, one must have legal counsel prior to negotiating and signing the contract.
Sign the Contract - The Contract sets the terms of the transaction. Most notably, the Contract describes the title to be transferred and the grounds on which either party can back out of the deal once the Contract has been signed. The Contract also sets the date for Closing, the day on which the property will be transferred to the Buyer. Each clause in the contract is subject to negotiation and carries legal implications for the remainder of the purchasing process. It is for this reason that an each party must retain an attorney to negotiate on their behalf.
Down Payment – The Down Payment is paid when the Contract is signed. Customarily, the Down Payment is 10% of the purchase price, although this too is subject to negotiation and should be discussed with your attorney.
Apply for a Mortgage - Many first time Buyers finance the purchase and the mortgage must be secured by the date set forth in the Contract. Therefore, a Buyer should prepare the mortgage application before the Contract is signed so that it can be submitted immediately thereafter.
Order a Title Report - A Title report will confirm who presently owns the property and what claims anyone else might have to the property. An Attorney should review the report to ensure the Buyer is acquiring sole legal ownership of the property.
Closing – The remainder of the purchase price is paid to the Seller and the title is transferred to the Buyer . . . along with the keys.

If you are buying a home or office, Contact a Real Estate Attorney to ensure you negotiate the best terms for your contract and closing.

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An Introduction to Bail Determination

5/8/2012

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Both New York and New Jersey allow for bail to be set after a defendant has been arrested and arraigned but before the disposition of the criminal charges. In both states, bail is set by a judge and determined based on factors set forth by each State’s legislature. Bail enables the defendant’s release from custody while at the same time ensuring the defendant’s presence at future court appearances. If the judge, after a balancing of the factors, determines that the defendant is a serious risk of flight, then bail will be set at a high enough value to ensure the defendant’s return to court. However, should the court find that there is little or no risk of flight, then no bail will be required and the defendant will be released on his or her own recognizance.

New York CPL § 510.30 lists the factors for a judge to consider when determining bail. These include: (1) The defendant’s character, reputation, habits and mental condition; (2) His employment and financial resources; (3) His family ties and the length of his residence if any in the community; (4) His criminal record if any; (5) His record of previous adjudication as a juvenile delinquent; (6) His previous record if any in responding to court appearances; (7) The weight of the evidence against a defendant in the pending criminal action and any other factor indicating probability or improbability of conviction;

Similarly, New Jersey Court Rule 3:26-1 details the factors to be considered in setting bail, which include the following: (1) The seriousness of the crime charged against defendant, the apparent likelihood of conviction; (2) The defendant's criminal record and previous record on bail; (3) The defendant's reputation, and mental condition; (4) the length of defendant's residence in the community; (5) The defendant's family ties and relationships; (6) The defendant's employment status and financial condition; (7) responsible members of the community who would vouch for defendant's reliability; (8) factors indicating defendant's mode of life or ties to the community.

Additionally, judges in New York and New Jersey can add conditions to bail should they prove necessary to ensure the defendant’s return to court. These can include travel restrictions or a monitoring bracelet. Additionally, should any of the bail factors change during the pendency of the criminal action, either side can request that the bail be modified.

Bail is set early on in the prosecution of a case and can be the difference between a defendant sitting in jail for the duration of the prosecution or living his life as he had prior to the arrest. Therefore, if you or a friend has been arrested, contact a Criminal Defense Attorney to learn how to prepare for the possibility of bail.

Contact us today to set up a free consultation to discuss how we can help you.

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Pre-Trial Intervention as an Alternative to Criminal Prosecution

4/12/2012

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New Jersey provides those eligible with an alternative to the traditional criminal prosecution called Pre-Trial Intervention, or “PTI”. According to the New Jersey Judiciary[1]:

PTI seeks to render early rehabilitative services, when such services can reasonably
be expected to deter future criminal behavior. The PTI program is based on a rehabilitative
model that recognizes that there may be an apparent causal connection between the
offense charged and the rehabilitative needs of a defendant. Further, the rehabilitative
model emphasizes that social, cultural, and economic conditions often result in a defendant's
decision to commit crime.

Simply stated, PTI strives to solve personal problems which tend to result from the
conditions that appear to cause crime, and ultimately, to deter future criminal or disorderly
behavior by a defendant.

The structure of the PTI program is straightforward. If a defendant complies with the conditions of the program and avoids re-arrest, then the case is dismissed. Conditions often include random urine testing, fines, community service, payment of restitution, and/or psychological, drug or alcohol treatment programs. Upon successful completion of the PTI program, the defendant will have no criminal record. If the defendant fails to comply, then he or she is terminated from the program and the case is returned to the regular trial calendar.

New Jersey believes that Pre-Trial Intervention benefits the interests of the public, the victim and the Defendant by correcting the underlying behavior and reducing the risk of re-offense. PTI is also viewed as a way to ensure the court’s resources are used to prosecute more serious offenders.

Eligibility is determined by the County Prosecutor’s office. A complete list of the factors are listed in N.J.S.A. 2C:43-12(e). Among them are Defendant’s age, residence, degree of offense charged, prior criminal record and prior participation in a diversionary program.

Applications to PTI should be made at the commencement of proceedings, typically no later than seven days after the defendant's initial plea to the indictment. If you have been arrested and are interested in applying for Pre-Trial Intervention, contact a Criminal Defense Attorney today to find out if you are eligible and to help you apply to the program. Call us today to set up a free consultation to discuss how PTI can help you.

[1] http://www.judiciary.state.nj.us/criminal/crpti.htm

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Understanding the Legal Definition of Criminal Possession

3/21/2012

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http://www.fuldlawoffices.com/new-york-criminal-defense-practice.htmlWhen a person has been charged with a crime involving the element of “criminal possession”, it is crucial to recognize that the legal definition of “possession” is much broader than the common definition. In both New York and New Jersey, “possession” extends to that which is found even beyond one’s person, bag or clothing. Understanding the legal definition can help a person distance themselves from situations that could result in criminal liability for possession.

The New York Legislature has outlined two scenarios whereby drugs can be found in an area and each person in that area can be charged with the crime of Criminal Possession of a Controlled Substance. New York Penal Law §220.25 provides, in part, that: (1) The presence of a controlled substance in an automobile is presumptive evidence of knowing possession by each and every person in the automobile; and (2) The presence of a substance in open view in a room, other than a public place, is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance. However, these presumptions are not usually applied if the substance is found on the person of one of the occupants.

In New Jersey, one can be charged for either actual or constructive possession of illegal drugs or weapons[i]. The New Jersey Supreme Court has defined these two types of possession as follows:

A person actually possesses an object when he has physical or manual control of it. A
person constructively possesses an object when, although he lacks "physical or manual
control," the circumstances permit a reasonable inference that he has knowledge of its
presence, and intends and has the capacity to exercise physical control or dominion over
it during a span of time[ii].

Accordingly, the fact that one did not physically or manually control an illegal drug or firearm is not enough to absolve a person of criminal liability. In New York, Criminal liability can be placed on any occupant of the room or automobile containing an illegal substance. In New Jersey, possession can be charged whenever it can reasonably be inferred that a person had both knowledge of the presence of an object and the intent to exercise control.

Criminal Possession statutes are very intricate despite the seemingly straightforward titles. If you have been charged with Criminal Possession of an illegal substance or firearm, it is important to consult with Criminal Defense Attorney to learn more about these charges.

[i] State v. Spivey, 179 N.J. 229, 236-237 (2004); State v. Reeds, 197 N.J. 280, 296 (2009).

[ii] Spivey, supra, at 236-237 (emphasis added).

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Speedy Trial Rights in New York and New Jersey

2/21/2012

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It is commonly remarked that the wheels of justice grind slowly. Therefore, it is no surprise that clients often ask: “Don’t I have a right to a speedy trial?” The simple answer is yes, the Sixth Amendment of the United States Constitution guarantees an accused the right to a speedy trial in all criminal prosecutions. However, jurisdictions differ as to the definition of “speedy.”

In New York State, the legislature has established time limitations before which the prosecution must be ready for trial. Under NY CPLR § 30.30, a motion to dismiss on speedy trial grounds must be granted if the prosecution is not ready within the designated amount of time, subject to certain enumerated exclusions. The statute sets forth the following speedy trial periods which begin running at the commencement of the criminal action:

In New Jersey, the determination as to whether an accused’s right to a speedy trial has been violated has been established by common law and is based on an evaluation of several factors. In practice, an accused has a much more difficult time asserting his speedy trial rights in New Jersey.

New Jersey courts decide a speedy trial motion based on the following:

(1) The length of the delay;

(2) The reasons for the delay;

(3) Defendant's assertion of his right to speedy trial; and

(4) Any prejudice to defendant caused by the delay.[i]

It is important to note that an accused need not show prejudice if the first three factors weigh heavily in his or her favor.[ii] Additionally, an accused can demonstrate prejudice beyond the showing of diminished ability to defend against the charges. Prejudice includes employment interruptions, public criticism, anxieties due to ongoing prosecution, the drain on finances, etc.[iii]

In both New York and New Jersey, the determination of speedy trial time includes numerous exceptions to the rule, and each case should be reviewed by a Criminal Defense Attorney in order to determine whether one’s right to a speedy trial has been violated.

Contact us today and schedule a free consultation to discuss how we can protect your right to a speedy trial.

[i] State v. Gallegan, 117 N.J. 345, 354-355 (N.J. 1989).
[ii] State v. Farrell, 320 N.J. Super. 425, 446 (App.Div. 1999)
[iii] Id.

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First Steps to Preserve and Protect your Personal Injury Claim

2/7/2012

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Whether you were the victim of a car accident, a slip and fall, police brutality or medical malpractice, the steps taken following the incident can have lasting effects on the outcome of the case. Therefore, it is worth highlighting the early measures that should be taken to protect your claim.

First and foremost, a person who has been injured should seek out appropriate medical attention. The precautions outlined in this article are secondary to those needed to preserve your health. Hospital records, photographs and testimony from a treating physician will be sufficient to demonstrate the extent of the injuries suffered. Similarly, if a person feels they have been hurt or injured as the result of a crime, they should immediately call 9-1-1. You may have a civil claim against the offender, but the first step should be to call the authorities and report the crime.

Next, you are likely to hear from a lawyer or insurance company representing the party at fault. They will ask you to be examined by one of their doctors or make a statement regarding the incident. Aside from your own insurance company, you should not talk to anyone before retaining an attorney. Any information given to the other party, whether in the form of a statement or a medical test, can be used to minimize any potential recovery. However, a person is obligated to comply with his or her own insurance carrier. Failure to do so can result in a loss of coverage.

At this point, you should contact a Personal Injury attorney. An attorney will help you negotiate and try to resolve the case out of court. If negotiations do not resolve the matter, the attorney will file a lawsuit on your behalf.

Time is of the essence as the Statute of Limitations controls the timeframe in which a lawsuit can be filed. In New York, a claim against a Municipality requires a filing of a notice of claim within 90 days of the underlying incident. Claims for an intentional tort must be commenced within a year. Personal Injury actions, most commonly a result of negligence, must be filed within 3 years. A Personal Injury Attorney will be familiar with the statutory limitations and ensure your claim is appropriately filed.

These are just a few of the steps that should be taken to best protect your claim. However, each case is unique and any questions should be directed to the attention of a Personal Injury Attorney.

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What to do When Asked by Police to Consent to a Search

1/24/2012

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You are in your home and hear a knock at the door. You are surprised to find a group of police officers, one of whom asks if they could come in and look around. You ask if they have a warrant and the officer informs you that they do not have a warrant but would like to have a look around none the less.

In a slightly different situation, you are driving your car when you see flashing lights approaching. You pull to the side of the road to discover that the flashing lights have pulled right behind you. After asking for your license and registration and informing you of the motor vehicle infraction for which you were pulled over, the police officer asks to search the vehicle. You inquire as to whether he has a warrant. The officer notes that he does not have a warrant and then questions whether there is anything in the car you do not want the officer to find.

These are two scenarios where a person is confronted with a police officer’s request to conduct a consensual search. A person is often struck by conflicting feelings. On the one hand, the police may not have any right or legal basis to conduct a search. Conversely, a person may feel that refusing may give the appearance that he or she has something to hide.

You might initially question what prompted the officer to request the search. However, in New York and New Jersey, the general rule is that an officer is permitted to seek consent to search with absolutely no suspicion as to criminal activity. Only in New Jersey, in the case of a traffic stop, must an officer have a reasonable suspicion of criminal activity[i]. New Jersey Courts fear that a driver may feel compelled to consent when he or she is stranded on a highway after a motor vehicle stop.[ii]

Once you have been asked to consent to a search, it is crucial that you know that you have the right to say no. In fact, Police will often advise a suspect that they have the right to refuse. In New Jersey, an officer is required to inform a suspect that they have the right to refuse to be searched and if an officer does not so inform a suspect, then the consent will be deemed involuntary and the search declared invalid.[iii] Unfortunately, in New York, an officer is not required to inform a suspect that he or she has the right to refuse consent. However, even in New York, failure to so inform is a factor to be considered in determining whether the consent was voluntary.[iv]

Should you decide to offer consent, it is crucial to understand that consent to search is not a universal surrendering of all rights to privacy. A suspect’s consent to search limits a police search to the area that objectively and reasonably falls within the suspect’s scope of consent.[v] If you consent to a search of your garage, then the police cannot search your bedroom. If you permit the police to enter in order to look for a stolen television, they cannot search inside containers too small to contain such an object.

Now that you understand the underpinnings of a consensual search, what should you do in the scenarios described above? Do not consent to a search. If an officer has the authority to search a location or if there is an emergency at hand, then the officer will perform the search. If the officer has a warrant or the necessary probable cause to justify the search, a person’s refusal will only result in the officer’s forcibly entry in order search the area. When police ask your consent to search, it most likely means that they have not obtained a warrant to perform the search. Therefore, if the police ask for consent to search, you should refuse until they get a warrant. Nothing good will come of allowing police to search through you home and possessions. They are not looking to vindicate you; rather, they are looking for evidence to support a case against you.

That being said, each case is unique and there are situations where one could benefit from consenting to a search. Therefore, one should consult a Criminal Defense Attorney when confronted with the decision of whether to acquiesce to a police officer’s request for consent to search. Contact a Criminal Defense Attorney to learn about your rights.

[i] State v. Carty, 170 N.J. 632, 650 (N.J. 2002). [ii] State v. Domicz, 188 N.J. 285, 309-310 (N.J. 2006). [iii] State v. Johnson, 68 N.J. 349, 354 (N.J. 1975). [iv] People v. Gonzalez, 39 N.Y.2d 122, 130 (N.Y. 1976). [v] Florida v. Jimeno, 500 U.S. 248, 251 (U.S. 1991); State v. Hampton, 333 N.J. Super. 19, 29 (App.Div. 2000).

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False Arrest Claims Allow Victims to be Compensated for Damages.

1/17/2012

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A Defendant’s attorney finishes his plea to the Court and demonstrates that there is no evidence to support the arrest or charges made against his client. The Judge reviews the evidence and dismisses all charges against the Defendant. Naturally, a person is excited to learn that the case has been dismissed. However, this joyous feeling is short lived. Just moments after the words “case dismissed” have left the mouth of the Judge, a person will remember the anxiety and fear that took over his or her life from the moment of the arrest.

A common misconception among those who have been arrested is that once a case against them is dismissed, they have been vindicated and made completely whole once again. In reality, the traumatic effects of an arrest can remain with a person for the rest of his or her lifetime. The ill effects are even harsher when the original arrest was wrongful or frivolous. When there was no probable cause to support the original arrest, a person has been the victim of a False Arrest.

Thankfully, the law provides such a person with a mechanism to recover for the loss and hardships suffered as a result of the arrest. This action is commonly referred to as a False Arrest Claim. By filing a False Arrest claim, the victim can sue the Police, City and/or any other entity which caused the arrest to be made.

A victim of a False Arrest can seek to collect for the following: (1) Time in Custody/ Jail (known as false imprisonment); (2) Physical Injuries suffered; (3) Violation of Civil Rights (when arrest is based on race, color or creed); (4) Length of prosecution; (5) Number of required court appearances; (6) Loss of Employment; (7) Loss of Earnings; and (8) Damage to Reputation.

Although a False Arrest claim allows the victim to be compensated, there is a small window of time in which the claim must be filed. A claim can be filed against any party who was involved in the arrest. The Police are sued as employees of the City. The law provides that any claim against the City must be made within a short amount of time. In both New York and New Jersey, a claim against a city must be filed within 90 days. In New York, the law suit must be started within a year and 90 days of the arrest and in New Jersey, this period is two years.

In sum, the law affords victims of false arrests an avenue to recover for the various damages. However, victims must act expeditiously in filing a claim in order to preserve their right to file a suit against a municipality. If you feel you have suffered as a result of a false arrest, it is important that you contact a False Arrest Attorney in order to learn how to begin your road to compensation.

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Know Your Rights upon being Arrested

1/11/2012

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Often times, a person's first contact with the legal justice system begins with an arrest. The unexpected nature of an arrest can leave a person unprepared to deal with the complex legal system. It is crucial that you understand the rights that attach as soon as an arrest is effectuated.

Often, an arrest begins with a phone call from a precinct or police headquarters. In the most common scenario, a police officer calls and asks a person to come down to the station to be asked a few questions. Don’t be fooled by this seemingly innocent request. If the person goes to the precinct, he or she will most likely be arrested.

Instead, the person should take this opportunity to contact a Criminal Defense Attorney. If there is a warrant for the person’s arrest, the attorney can talk to the police and inquire as to the basis for the warrant and even negotiate a convenient time to surrender.

Once a person is taken into police custody and interrogated, the police are obligated to inform him or her of certain rights, known as Miranda rights. Miranda v Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). These constitutional rights stem from the protections guaranteed by the Fifth Amendment right against self-incrimination and the Sixth Amendment right to counsel. The police must inform the suspect that he or she has:

(1) The right to remain silent; and

(2) The right to an attorney. If the suspect cannot afford an attorney, one will be provided.

Notice that there is no right to a phone call. Despite the portrayals on TV, there is no right to make a phone call. Therefore, it is even more crucial to know your rights. Now that you know your rights, let’s take a look at how to a person should effectively assert these rights once arrested.

First, ask for an attorney! Whether or not you have retained an attorney, asking for an attorney will cease all questioning until your attorney arrives or until one is eventually provided (likely at arraignment).

Second, do not make any statements to the police. Aside from your name address and date of birth, you should not tell the police anything because any statement will be used against you. Police will often try and convince you to talk by offering to “help you out” if you tell them “what happened.” Experience has shown that this is a ploy to extract an incriminating statement. By keeping quiet until you have the assistance of an attorney, you will help you set your case in the right direction and help ensure the most beneficial final resolution.

To learn more about your rights, contact one of our Criminal Defense Attorneys. How you respond in the moments after your arrest sets the tone for the remainder of your case.

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Fuld Disclosure
A Legal Blog

About the Author

Prior to joining the office, Judah Fuld served as the Law Clerk to the Honorable David H. Ironson, Superior Court of New Jersey, Criminal Division. Judah first appeared in court as a member of the Fordham Criminal Defense Clinic and has since expanded his work to various areas of criminal and civil law.

Contact an Attorney

Checklist For First Time Home Buyers

An Introduction to Bail Determination

Pre-Trial Intervention as an Alternative to Criminal Prosecution

Understanding the Legal Definition of Criminal Possession

Speedy Trial Rights in New York and New Jersey

First Steps to Preserve and Protect your Personal Injury Claim

What to do When Asked by Police to Consent to a Search

False Arrest Claims Allow Victims to be Compensated for Damages.

Know Your Rights upon being Arrested

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