Monday, January 21, 2013

Cell Phone Shenanigans While Driving

New York State is not messing around when it comes to cell phone & texting fines behind the wheel. In case you do not know and from out of state, New York State prohibits all drivers from using portable electronic devices at any time.

Illegal activity includes holding an electronic device and composing, sending, reading, accessing, browsing, transmitting, saving, or retrieving electronic data such as e-mail, text messages, or webpages. Viewing, taking, or transmitting images, and yes, even playing games. These actions will all cost you money in New York, if you are caught behind the wheel engaging in them.
The penalty for a violation of this law is up to $150 and also gets the gift that keeps on giving; 3 driver penalty points. It is a primary law, which means an officer may pull you over soley if you are observed using a hand held device.
 
The law defines the following terms as: (a) “Portable electronic device” shall mean any hand-held mobile telephone, as defined by subdivision one of section twelve hundred twenty-five-c of this article, personal digital assistant (PDA), handheld device with mobile data access, laptop computer, pager, broadband personal communication device, two-way messaging device, electronic game, or portable computing device.

(b) “Using” shall mean holding a portable electronic device while viewing, taking or transmitting images, playing games, or composing, sending, reading, viewing, accessing, browsing, transmitting, saving or retrieving e-mail, text messages, or other electronic data.

CELLPHONE USE WHILE DRIVING – New York State does not allow you to use a hand-held mobile telephone while you drive. If you use a hand-held mobile telephone while you drive, except to call 911 or to contact medical, fire or police personnel about an emergency, you can receive a traffic ticket and pay a maximum fine of $100 and mandatory surcharges and fees of up to $85. For offenses committed on and after October 5, 2011, this violation also carries three driver violation points!
 
Marty Carbone, Carbone & Carbone LLP, Attorneys at Law
Twitter: @carbonelaw1

Monday, December 24, 2012

Christmas Laws to Live By

1.         "Emmet Otter's Jug Band Christmas" must be viewed at least 8 times prior to Christmas Day. Initial viewing is to be commenced upon putting up the Christmas tree.

2.         On Christmas Eve, when enjoying a cocktail or 3, do not spout off about your boss. Uncle Hank and Cousin Randy may take you literally and do something rash.

3.         The movie “A Christmas Story” should be watched in its entirety. However, one should resist temptation to stick their tongue on a flag pole. Do NOT purchase a Red Rider bb gun. You'll shoot your eye out! Also, be sure to drink your Ovaltine.

4.         Non-consumption of those peanut butter cookies with the Hershey kiss in the middle is a serious offense.

5.         Store bought eggnog is strictly prohibited.

6.         A big screen TV is the gift that keeps on giving all year long.

7.         Re-gifting is not a crime.

8.         If your Secret Santa gives you a case of beer, it may be time to start planning some New Year’s resolutions.

9.         Despite recent trends and policies, you will not be arrested if you utter the words “Merry Christmas.”

10.       When in doubt, gift card it out.

Marty Carbone, Carbone & Carbone LLP
www.carbonelawyer.com

Remembering Darrell Abbott

December 8, 2004 was a very sad day in the world of music as that was the day “Dimebag” Darrell Abbott was murdered while he was literally playing guitar on stage. For those readers that are not a fan of hard rock music, Darrell Abbot was the lead guitarist for legendary heavy metal band Pantera. The band was extremely popular during the 1990’s among heavy metal aficionados and the tragedy that struck in Columbus, Ohio in 2004 remains one of rock’s most tragic deaths.

Pantera broke up in 2003 when singer Phil Anselmo had a falling out with Darrell and his brother, fellow band mate and drummer, Vinnie Paul Abbott. The split was filled with acrimony to say the least and both Anselmo and the Abbott brothers went their separate ways and formed their own respective bands.

Upon the death of Darrell Abbott, Phil Anselmo attempted to attend the funeral of his former band mate but Vinnie Paul and Darrell’s long time girlfriend Rita Haney prevented him from doing so. They harbored great resentment toward Anselmo, as they both felt it was he who was responsible for Pantera’s breakup. Vinnie Paul further held distain for Anselmo due to alleged negative comments he made toward Darrell in the press.

Rita Haney went on the record saying that Anselmo was essentially just as responsible for the murder of Abbott as the man who actually shot him on stage. She went on to claim that if Anselmo did not force the breakup of Pantera, Darrell would not have been playing the small, dismal venue on the night of his murder. At the height of Pantera’s fame, they were playing in much larger arenas with heightened security. Upon investigation of Abbott’s death, it was revealed that the gunman acted out because he was upset about Pantera’s demise and he held Darrell responsible. It was also later determined that the gunman had severe mental issues.

In response to Rita Haney’s claims, the legal issue boils down to reasonable forseeability; more specifically, was it foreseeable that Darrell Abbott would be murdered if Anselmo had not broken up the band.

While it may be factually true that had Anselmo not left Pantera, Abbott would not have formed a new band and would not have been playing in the smaller venue on the night of his murder. However, for anyone, including Rita Haney, to hold Anselmo responsible for the actions of a mentally ill murderer is not legally plausible to say the least.

To be deemed legally responsible for certain actions, whether they are criminal or tort, the issue of foreseability comes into play. If a party acts in a way where it is reasonably foreseeable that said actions would have a negative impact upon another, that party would be deemed legally culpable.

For example, if a person drinks an abundant amount of alcohol and then drives their car home, it is reasonably foreseeable that they may cause an accident and that other people may be injured or killed as a result. In this scenario, it would be justified to hold a drunk driver responsible for the harm they cause to people they hit with their car while under the influence of alcohol. The same cannot be said regarding the actions of Phil Anselmo as they pertain to his departure from the band Pantera.

While it may be true that had Anselmo not left Pantera, Abbott would not have been playing in the smaller venue on the night if his murder. It can also be assumed that the man who shot and killed him would not have done so had Pantera stayed together as a band. However, it was not reasonably foreseeable that Darrell Abbott would have been murdered by a mentally ill fan based on Anselmo’s decision to leave the band. The actions of the crazed gunman on the night of December 8, 2004 superceded anything that Phil Anselmo did with regard to his involvement in the demise of Pantera.

When it comes to legal culpability, reasonable foreseeability is the ultimate measuring stick. Often people want to point fingers and place blame where it doesn’t legally belong. Before they do, they should take a step back and ask themselves whether or not it is reasonable, under the circumstances, to hold said person responsible.

In the case of the Pantera tragedy, both Vinne Paul Abbott and Rita Haney were understandably emotional. In the heat of the moment, they immediately lashed out at Phil Anselmo. While it may be reasonable to be upset with him on a professional level, it is absolutely unreasonable and outright wrong to hold him legally responsible for the death of Darrell Abbott.

As a fan of Pantera, I hope Anselmo and Vinnie Paul make amends, but as of this writing, it doesn’t appear it is going to happen in the foreseeable future.
 
Marty Carbone, Carbone & Carbone LLP

 

 

Tuesday, November 13, 2012

Preparation Prior to Prosecution

Filing a law suit should never be done without first carefully considering several factors. First and foremost, one must be certain that their issue indeed requires legal action. More often than not, issues between parties can be resolved without taking official legal action. Only when parties cannot work things out amicably should a law suit be considered.

If an amicable agreement cannot be reached, a person must then make the important decision as to how to proceed with resolving their legal conflict. The first thing one should consider is whether or not they have standing to bring about a cause of action. To have standing, one must have a “stake” in the matter at hand. If, for example, a person is hit by a car and the other party is not willing to take responsibility for their negligent actions, the injured party would have standing to bring a cause of action in court. However, if the injured person’s friend who was not involved in the accident wishes to sue on their behalf, they would have no “legal stake” in the action and therefore no legal standing.

Once standing on a given matter is established, one should consider whether they are going to represent themselves or hire an attorney. In certain circumstances, one can apply for a public defender at no charge if they financially qualify. However, assigned counsel typically applies only for criminal and family court matters. If you choose to represent yourself in a legal matter, you are considered pro se.
 
Next, the proper venue needs to be established in order to go forward.  A party needs to determine whether their matter falls in the realm of small claims or perhaps county court. In New York, the maximum amount allowed to litigate in Small Claims court is $5,000. If your legal issue involves a monetary amount that is higher than $5,000, the proper venue to bring a cause of action is County Court. Also, the initiating party must consider that they must bring the action in the county in which the defendant resides or does business.

If one feels as though they have a personal injury claim, they again should be sure that they in fact have standing to sue and that a valid claim actually exists. In today's society we are riddled with all sorts of frivolous law suits. Said law suits often waste valuable time and money and ultimately cause more harm in the long run. Personal injury law is a very specific and specialized area of law. If one feels as though they have a lawful claim against another party, it is recommended that they consult with an attorney that is well versed in this area of law.

Another area of law that is a "hot bed" for litigation is family law. This is a very emotional area of law since it involves children, custody, and other domestic issues. Here, when a dispute arises between rival parents or family members, people often "fly off the handle" and are quick to march down to their local Family Court and file a petition. With Family Court, it is relatively easy for a person not familiar with legal procedure to file a petition for a cause of action because the forms are readily available at the court clerk counter and are "fill in the blank" format. Here, once a petition is filed, it is processed and the case is put on the court calendar. A Law Guardian, also known as Attorney for the Child(ren) is then automatically assigned to the case by the presiding family court judge. The Law Guardian, by law, must personally meet with the children prior to the case to assess the situation and ultimately look out for their best interests. Since a family court action is not taken lightly in the eyes of the law and because it is multi faceted to say the least, it is highly advised that litigants work their problems out amicably prior to filing said cause of action. Mediation is also an avenue people can go down if they cannot work things out themselves. This process is a bit less strenuous on the children and the parties in general.

People also need to consider whether or not the issue to be litigated is actually worth the time and effort. For example, if someone owes you $100 and you go out and spend $500 on legal representation, it does not make much sense to pursue the issue in this fashion. Perhaps a better forum would be to attempt to work out the problem outside of court or maybe “let it go” all together. 
 
Martin A. Carbone, Esq.
Carbone & Carbone LLP

Monday, October 22, 2012

Be Proactive in Dealing with a Traffic Ticket


A lot of people when they get a traffic ticket put it on the back burner and do not treat it very seriously. They do this of course until the court date rolls around and then panic often sets in. At this point, an individual often debates whether or not to simply “mail it in” and plead guilty or instead obtain an attorney and hope to plead to a lesser charge.

While it may be easier and more convenient to sign the back of the ticket, mail it in to the “powers that be” and be done with it, this is almost always not the best choice. By blindly pleading guilty to a traffic ticket, an individual risks points being placed on their license and an increase in insurance premiums often go hand and hand. This can further be of consequence to those who are prone to getting stopped for speeding. The more points a person has on their license, the less likely of a chance they may have in successfully negotiating a plea to a reduced charge.

This is all common sense of course, which is why it should be a no brainer to hire an attorney when getting a traffic ticket. The cost in legal fees will be far less than the increase in insurance rates if a ticket is ignored or a blind plea of guilty is entered.

A lot of times, people plead guilty not knowing of the consequences to only later find out that they now have numerous points on their license. They then tend to seek legal counsel to try to remedy the situation. At this point, an attorney can file what is known as a Coram Nobis, which is a request to the court to review its own judgment. This is an up hill battle to say the least and it can be expensive in terms of legal fees.

In short, when a person gets a traffic ticket, whether it be for speeding or running a red light or stop sign, it is wise to seek legal counsel right away in order to avoid unnecessary points on ones license and increased insurance premiums. To avoid financial burden and overall stress, be sure to think again before you crumple up that traffic ticket.

Martin A. Carbone, Esq.
Carbone & Carbone LLP
www.carbonelawyer.com
www.lakegeorgelawyer.com

Monday, September 17, 2012

Tech Today, Law Tomorrow

 
Just about everyone nowadays has a cell phone. More specifically, most have "smart phones" such as an iphone, Droid, or Blackberry. With these recent “can't live without” pieces of technology comes the ability to communicate in numerous forms with virtually anyone, anywhere, at any time. Because of this recent technological trend, people are more prone to open themselves up to a greater degree of liability as it pertains to their communications. In other words, we as a society need to really watch what we say within the realm of texts, emails, and social networking sites as said communication could be held against us in a court of law.
 
Practically everyone, including their mothers (and grandmothers) are on Facebook. Facebook is currently the holy grail of the social networking sites and people post everything on there from how tired they are to how much they enjoy chocolate. Due to its public nature, people don't often realize that when they post their dirty laundry on other peoples "wall," said communication can be taken and interpreted out of context. When parties, such as bickering spouses enter litigation in Family Court, these prior communications can come into play and may prove to be at the detriment of the deponent. More often than not, what people post on sites such as Twitter, Facebook, and MySpace is meant to be taken in jest. However, on its face, the posts could be interpreted differently and the deponent often has an uphill battle in demonstrating the appropriate context in which it was meant to be taken.
 
Within the last few years, the concept of text messaging has really become popular within the world of communications, so much so that people often text one another when they are in the same room! This is another area where the information provided within the confines of a text could be drastically misleading and misinterpreted. If one goes through the right channels, a transcript of text chats can be obtained and are often submitted in court as evidence during trial. These types of transcripts do not always hold up under scrutiny, but one should be careful when posting on Facebook and similar sites in order to avoid such hassle.
 
So the next time you text a friend, co-worker, or family member, be sure that it is appropriate and within the boundaries of the law. Some texts can come back to haunt you. Just ask Brett Favre and Tiger Woods.
 
Martin A. Carbone, Esq.



Monday, July 30, 2012

Running Red Lights in the Capital Region


Now, more than ever before, it is important to know what a right light ticket may cost you in the Upstate NY region. At the bottom of this article, you will find the breakdown of what you are going to pay if fined for taking the risk of running a red light.

It seems that in Albany, NY lately, imparticular, we have been seeing an influx of traffic infraction tickets needing representation through our lawyers at CarboneLawyer.com. Most currently, many of these have been red light runners, more so than, say a year or so ago.

This increase in a particular type of ticket that we see coming across our desk sometimes means that there is a crackdown by police to stop this particular offence form happening, and to let commuters know that our city “means business” when it comes to drivers ignoring something like traffic signal devices. It is possible that the surfacing of a video and a number of articles at The Times Union have prompted this change.

A prominent local businessman was recently trying to teach his four-year-old what the red light means to a driver, and found that many drivers were ignoring it altogether. He then found that in areas around Washington Park and around Lark Street, it was very very easy to shoot iphone videos of drivers who look at red lights as becoming as he says, “merely suggestions.”

FINES & PENALTIES FOR RUNNING A RED LIGHT IN NYS
If your red light ticket was written by an officer, it is considered a, “traffic infraction.” This generally means that a strike will go on your driving record with three points against your license, and it also means that you get “the gift that keeps giving,” as a raise your auto insurance bill. The actual dollar fine amount is calculated depending on where you were ticketed and whether it’s your first offense of not. Drivers ticketed in a city with a million or more inhabitants generally follow this scale:

$100-300 for the first offense
$200-$500 for the second offense in 18 months
$500-$1000 for the third offense in 18 months


However, if a driver is ticketed in a smaller populated area in New York State, they follow the fines according to this scale:

$50-100 for the first offense
$100-$200 for the second offense in 18 months
$250-$400 for the 3rd offense in 18 months


CAUGHT ON CAMERA - Just for the record, if you get a ticket from a red light camera somewhere in New York State, the infraction itself is treated somewhat differently because it is somewhat difficult for the prosecutor to actually prove who was driving. Therefore, a red light ticket issued from a camera is currently actually more like a parking ticket. As the registered owner of the car, you are responsible for the violation, but all you have to do is pay a fine of $50, plus any court costs and penalties. The ticket also doesn’t, at this time, appear on your driving record or cause your insurance rates to go up.

For more information on this topic, please visit www.carbonelawyer.com

Martin A. Carbone, Esq., Carbone & Carbone LLP, Attorneys at Law