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New York City Law Blog

What if the police ask to search my car?

The sounds of police sirens just behind you while driving the streets of New York City can be a worrying experience. You wonder if the approaching police officer is here to question you, ticket you, or even arrest you. It is important to remain calm as the officer approaches. If you are asked to give the officer permission to search your vehicle, remember that - unless you are arrested in connection to the stop - you can refuse without legal repercussions. (If you can record the encounter do so, but that might cause more problems.) If the police testify that you gave consent and you didn't, most judges are going to believe the cops. 

The police may search your vehicle under a number of legal doctrines if they did not have to ask first. A police officer can search the property of an individual with a warrant. If the officer does not have a warrant, searches can be justified by probable cause - or even the evanescent doctrine known as "arguable probable cause." 

But if you were just speeding and the officer doesn't tell you to step out from the car to perform a sobriety test - which you will fail in their eyes - you can refuse a search and should. Most officers are good people, except when it comes to telling on their officer siblings. Some bad ones need to make arrests and will plant evidence on you, so even if the partner of one of the bad apples is generally good, he or she will never snitch on a lying cop.

Beware. Treat the police like strangers on the street if you can. I have seen too much in twenty five years of practice to know what they can get away with.

Can my employer prevent me from voting on election day?

Unless you've been walking around with blinders on the past few months, you probably haven't been able to help but notice that the midterm elections are just around the corner. State and city campaigns are getting heated, and political ads are permeating the media.

If you have a vested interest in the outcome of any political race, it may be important for you to get out and cast your ballot on election day. However, you may be worried about the time constraints your job places on your ability to vote. The polls will be open from 6:00 a.m. until 9:00 p.m. on November 6. If you work a double shift that day or have a long-distance commute to contend with, finding sufficient time to get to the polls may be tricky.

Sexual harassment laws in New York

As the nation continues to experience a growing number of instances of sexual misconduct being reported, employees in New York State have good reason to wonder how or what can be done to protect people in the workplace. For some time, the United States Equal Employment Opportunity Commission has outlined parameters that identify what may constitute sexual harassment in the workplace.

These laws include the reuirement that sexual harassment may be experienced by either men or women and may even include an alleged harasser of the same gender as the victim. Employees were to be protected against things like unwanted sexual advances, requests for sexual favors or even off-color jokes or comments. Employees were protected from being harassed not only by their superiors or colleagues but also by any vendors, clients or customers In New York City alone, a co-worker's sexual harassment can subject an employer to liability. 

If you can make use of the New York Coty Human RightsLaw, you should do it. Federal and state law require that there be a "pervasive or severe" environment so intolerable that no reasonable employee could tolerate such abuse. One incident 0- such as sexual assault- can account for this, and so can scores of comments and unwanted attraction.

It is important that if you want to bring your state or City case in court, you must NOT file with the State or City Division of Human Rights. If you do so, you lose your right to file in court. If you don't care about going to court, you might get some relief in the divisions - however, in my opinion, the state division is more employer-friendly and bureaucratic. The EEOC will often attempt to resolve the claim with mediation, but other times will dismiss the case without making a finding, allowing you to file in court within 90 days. You can file on your own, but you are always better off with an attorney.

Remember: Harassment of a general nature - rudeness, etcetera- is not a matter for a court. But if it is sexual harassment and you truly believe it to be so, report it. That way, if your employer takes action against you, it cannot say that it rectified the problem and you can say you were the victim of retaliation. The EEOC explains retaliation here:                

When can a case be appealed?

I love appeals. You need a lawyer who knows appellate law and procedure if you are appealing and expect to win. My record of wins when I am defending appeals is almost 100% (in two cases, the court made little changes). My record on appeal as the appellant - the party trying to get a new decision - is about 40%. That is well above average for cases being overturned (5-10%), but I will not take a case on appeal unless I am convinced there is a legal error that is unsettled and needs to be decided. My reputation is too important for me to be taking lousy appeals. Sonia Sotomayor, when she was a lower appellate judge told me that in no uncertain terms in the 2000's when she said to me, "Counsel, what are you asking for?" I had no case but took it on appeal because someone was paying me. I will take a paid appeal, but never one that doesn't have an important issue at hand.

The appeal of a criminal or civil case is something anyone can do, and that I have a good record at, but is often widely misunderstood. If you lose your case in New York - and I can do an appeal anywhere in the country - you may immediately start notice your intention to appeal, but that is not the end. All of the papers in the case - the transcript if there was a trial - have to be collected, printed and agreed to as accurate. According to the American Bar Association, the only basis for an appeal is that there was a legal error. A legal error is when the law was not properly applied or improper evidence was allowed or the jury was given bad instructions.

An appeal is not a new trial. The court will not rehear the case. You will almost never get a chance to provide evidence or testimony. Many times, the court makes a decision based on the paperwork you file for the appeal or based on written briefs of the trial. Sometimes, oral arguments may be heard, but they are kept very brief.The oral argument is important in some 25% of cases, and appeals are granted in 5-10% of cases, civil or criminal.

The U.S. Supreme Court does not decide but only hears about 5% of the cases that try to have the result changed. I have filed petitions for certiorari - and two of them had important legal issues - but none of them were taken. Right now, a case I won at the Second Circuit Court of Appeals is being challenged at the Supreme Court. My name is on the brief but I had lots of help. We will probably know if the Court takes the appeal (and we hope it does not - we won already - but that doesn't mean we'll lose, even if the Court takes it. We'll just have to worry for another nine months. The case is Zarda v. Altitude Express, 100 F.3d 883 (2d Cir. 2018) (en banc). 

Can I do anything about workplace rudeness?

Having to work in an environment in which you are not happy is always a problem. In fact, unhappiness is often why people leave a job. There is something that is happening more often in work environments around New York that is leading to issues in the workplace and causing people to feel unhappy with their situation. This issue is called workplace rudeness.

According to the Huffington Post, workplace rudeness is a contagious situation where employees are rude to each other. Basically, it is a bad attitude that tends to spread from person to person. It has been shown that when one employee is rude to another, it often leads that second employee to be rude to others. Thus, this rudeness starts to spread.  

But the bottom line is that the law does not protect you against incivility. People hear "sexual harassment" and think any harassment is something you can sue for. It os not. Unless the harassment is based on a protected category, you are out of luck. 

What is Ban the Box?

When you have filled out a job application in the past in New York City, you probably have had to check a box saying whether or not you have been convicted of a felony. Typically, if you answer "yes," you are given a chance to explain the situation in a few lines below the checkbox. However, most applicants know that checking that box in the affirmative means the chances of getting that job have dropped significantly. This is not a secret, which is why the Ban the Box campaign was created.

According to Ban the Box campaign, Ban the Box is a civil rights movement. It was started by All of Us or None in 2004. Helping felons get back into the community and find a way to be productive members of society is an important thing to do, but when employers automatically deny employment to someone because he or she has been convicted of a felony, it undermines this. It is the goal of the movement to get employers to stop asking this question on applications and focus instead on the qualifications and skills of applicants.

What does one need to prove sexual harassment?

We expect our workplace to productive and safe. However, sometimes it becomes a hostile environment. The law does not protect against gross incivility, or what I will call "general harassment." The harassment has to be based on your rights under local and federal laws. The most commonly known form of harassment is sexual harassment, but also illegal are racial harassment, sexual orientation harassment, etcetera. You may report the issue to your employer but rarely does the employer do much, though this has changed in the wake of the #metoo movement.

The U.S. Equal Employment Opportunity Commission explains sexual harassment, and how one might handle the situation on one's own. Under federal law, the harassment must be pervasive or severe. Under the New York City Law, as well as New Jersey it need not be severe, but your damages might be limited if it doesn't rise to a level of changing the workplace. The law of the State of New York or Connecticut is similar to federal law.

For your case to be considered a valid sexual harassment claim, it must be ongoing and create a work environment that is so uncomfortable that you do not feel as if you are safe or would consider quitting. If it is a supervisor you have a claim; if it is a co-worker, you must in almost every circumstance complaint. If your boss demands that you trade sexual favors for any benefit in the workplace, that is another kind of sexual harassment called "quid pro quo" (Latin, meaning "this for that"). Quid pro quo sexual harassment is always illegal, though a consensual relationship is not.

In proving your case, testimony is considered evidence, but the more detailed the testimony the better. Phone records are evidence. You might also have text messages and emails - save those, for certain. Take a screenshot and print them out. If you have third parties who witnessed the harassment all the better. Once case I settled turned on a single written note wherein the female supervisor wrote to my male client, "I know you want a piece of my A_ _."

If they are still working at the company, co-workers might be afraid to testify on your behalf, but they are protected under the law from retaliation, but things of this nature are always fraught with tension. Your co-workers might be afraid of losing their jobs, so to depend on them is dicey, but I have seen current co-workers take the stand and testify loudly and clearly in favor of my client. On the other hand, once I saw a former employee with so little to say testify for the employer. We won anyway.    

Can police search without a warrant?

Most New Yorkers are aware that police cannot search homes or persons without a warrant. However, you may be surprised to learn that a search warrant is not always required.

If a police officer asks to search your property, how do you know if you have a right to privacy or if you must allow access?

You are entitled to be treated civilly, even if you are under arrest

New York City is one of the centers of modern civilization, and I am proud that I am here. However, we also know that the level of civility differs by neighborhood, especially, alas, in the way in which police officers sometimes exceed their authority to use force.

If you have lived in the city for any length of time, it is likely you have heard of at least one story of a police encounter that left someone intimidated. Officers are often physically imposing and trained in various martial disciplines, including the use of deadly force. Eric Garner was killed by a police officer who used a chokehold - a use of force outlawed by the police department itself years ago. This power clouds the judgment of certain individuals on the force, and their brethren will rush in, use excessive force, leaving the citizen injured, bloodied or sometimes maimed or killed. Deƫscalation techniques, proven effective, are rarely used. The police have their own culture in dealing with the public and a number of its members don't care if one of their arrestees are bloodied along the way.

If you are the victim of police misconduct, if you want to sue for excessive force, you must defeat any charge of disorderly conduct or assault on a police officer - often added as charges in order to preƫmpt a charge of misconduct. And while you can always sue for excessive force, a charge that you were rowdy or disorderly will be used against you - so don't take a please to disorderly conduct if you didn't commit it.

And remember, an adjournment in contemplation of dismissal (ACD) is often a way for courts to manage their dockets. Public defenders say it is the same as a dismissal. Not true. An ACD will end up as a dismissal if you stay out of trouble for six months, but the courts have held that in the civil context, nothing short of an outright dismissal is what is known as a "termination in favor of the accused," which will allow you to sue for malicious prosecution - which is what the police are doing when they charge you with offenses you didn't commit, such as assault or disorderly conduct, in order to cover for their use of brutality.

NEVER resist arrest.

What you should know about the plain view doctrine

The Fourth Amendment to the Constitution places strict prohibitions against unreasonable search and seizures of your property, so if a New York City police officer wants to search your vehicle, the officer must meet specific conditions, such as possessing a search warrant, or if the officer has probable cause to believe that the vehicle possesses incriminating evidence. Additionally, the "plain view" doctrine may also lead to an officer deciding to search your vehicle. It is important to know what this doctrine is and how officers may or may not use it to conduct a search.

Findlaw describes the "plain view" doctrine as the rationale for a police officer to search and seize criminal evidence if the evidence is in plain view. The officer does not require a search warrant if the officer can see the evidence. This doctrine can apply if an officer stops a vehicle for a traffic infraction and then spots a piece of drug paraphernalia in the back seat. The officer can not only seize the paraphernalia but can conduct a search under the reasonable suspicion that other paraphernalia may be present.

If the Court later finds the search was unwarranted and suppresses the evidence -something that happens rarely - it that might result in the dismissal of the case. Even so, someone whose case is dismissed because of an improper search does not have a basis to sue in civil. The fact that you won't be prosecuted is considered enough of a benefit to preclude an action for money damages. 

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