By Matthew V. Mirabile, Partner at McCabe and Mack LLP
You have the right to remain silent, the right not to incriminate yourself, and the right to an attorney’s involvement at every stage of your legal proceedings.
Matthew V. Mirabile, Partner at McCabe and Mack, has been with the firm for 25 years. His areas of expertise include litigation/insurance defense, personal injury (plaintiff), subrogation, arbitration, and criminal defense. This month, we thought it’d be helpful for him to respond to some of the most Frequently Asked Questions on Criminal Defense Law.
Q. If I’ve been charged with a crime, what are my rights?
A. You have the right to remain silent, the right not to incriminate yourself, and the right to an attorney’s involvement at every stage of your legal proceedings. You should not try to talk your way out of it – you don’t have to say anything at all. And you need to remember that police officers need to have some kind of reasonable suspicion to stop you, and a probable cause to arrest you.
So, to the phrase we all know: “anything you say can be used against you,” the question arises – SHOULD I remain quiet, or….what SHOULD I say?
It depends on how serious the matter is. I see people who want to act like a lawyer when they get pulled over for a speeding ticket. Police officers have a lot of discretion in how they enforce the law. My feeling is that if you’re cooperative and don’t give them a hard time, sometimes they give you the benefit of the doubt. Maybe you get roadside justice for just being polite. When it comes to traffic stops and non-criminal offenses, I discourage people from clamming up, especially if you have a good excuse.
But if you’re questioned about something serious – (a misdemeanor or a felony) – you shouldn’t say a single word. If accused of a serious crime, you want to talk to an attorney before you volunteer any information. It is easier said than done – and I’ve learned over the years that people with a criminal history tend to know their rights much better than those who do not. They know what not to say; they ask for a lawyer and they aren’t worried about going to jail that night or being threatened.
You really have to assess the situation to determine whether or not to remain silent. Is this just a violation? Or is it a felony? Or something in between?
Q. What if my child is wrongfully accused of committing a crime? What should I know?
A. With children, there are so many different situations where kids can get into trouble and parents get involved- not only with the criminal justice system, but with the school districts too. The setting of a school disciplinary hearing versus a criminal proceeding is entirely different. A judgement call has to be made by the parent as to how serious the offense is. Again – is it a minor violation of the law, or is it a serious crime? I get calls from parents whose youngsters have gotten into trouble with the criminal justice system or at school; those parents want to find out what can be done to defend the child’s rights and to make sure they get representation if needed. The important thing is that their record remains clear. Parents don’t want any kind of record that could leave a lifelong scar on a child. There are youthful offender laws for kids under the age of 19; that youthful offender status can be used at least once, so that should also be taken into consideration. The goal is always how best to avoid that lifetime record – community service, probation, a fine? We want to be sure we can clear a child’s name so it doesn’t affect that kid into adulthood.
Q. What’s the difference between a felony and a misdemeanor?
A. A felony is the most serious criminal offense; a misdemeanor is less serious. Felonies are rated A through E – and felony cases are heard in County Court, not a Village/Town Court setting. If you are charged with a felony, you could be indicted. Misdemeanors are also criminal but much less severe with different ramifications. Then there are non-criminal violations (like disorderly conduct, harassment, etc). Traffic violations are usually the most minor offenses.
Q. What do you advise to people pursuing employment who may need to clear their records to secure a job?
A. In some states there are expungement rules. However, in New York, that’s not the case; if you’re convicted here in NY, it stays with you for the rest of your life. There are some exceptions to that – marijuana, for example – there are provisions where you can get an expungement. But other than what’s set forth in the statutes, there’s really no way to get things removed from your record. That’s why it’s so important to get yourself legal representation – because once you are convicted of a crime, it cannot be undone. Many job applications will ask if you have ever been convicted of a crime.
Q. What should I look for when retaining a criminal defense attorney?
A. You want someone with experience. And sometimes, even more important than tenure, is their reputation in the legal community with other lawyers. If I’m looking to retain a lawyer in a field that I’m not familiar with, I call other lawyers to learn more about that person. Your reputation in the legal community speaks volumes; your peers are the ones who see you practice, in the courtroom, and know how successful you’ve been representing your clients. Relationships are also key. For example, I’ve practiced in the Hudson Valley for over 28 years, so when I walk into a courtroom, I know the people in there, and they know me. You want an attorney who’s familiar not only with the subject matter of the case, but also knows the people who will be involved – the judge, the District Attorney, the court staff, etc. If you’re looking for a lawyer, be sure to consider where their office is in relation to where the court will be. Like any business, the relationships really matter. And that includes the attorney-client relationship. You must be able to communicate well with your lawyer and feel confident that you are getting skilled representation.
Matt, his wife, Tamara and their children, Daniel and Tara, make their home in Cornwall-on-Hudson, New York. Matt enjoys golf and fishing and is a longtime Yankees and Jets fan.
He can be reached at 845.486.6868.