By Mark David Blum, Esq.

For this sordid affair, a quick course in criminal procedure and practice is necessary. (Apologies to Law & Order). Assume you have been arrested on a felony – any felony. (A ‘felony’ is any crime with a potential prison sentence of more than one year). After your first appearance before a judge, the District Attorney has to move your case forward. If you are cannot make bail (or are denied bail), the District Attorney must present your case and get a Grand Jury’s indictment in 45 days or less. If you are out on bail or released on your own, then the District Attorney has six months to present your case to a Grand Jury. No felony in can be prosecuted until a Grand Jury hears the evidence and passes on an indictment. No Grand Jury will hear a case until prosecutors choose to present it.

Now, let us assume you are on probation at the time of the felony arrest. You could be on probation for a DWI or failure to pay child support or even for stealing a pack of cigarettes. Even the most minimal of probation periods is one year. Many judges are enamored with the three year period. A felony probation can be five years all the way to life.

Being arrested for a felony while on probation mandates arrest and bail or its many substitutes. If there is sufficient evidence supporting the felony, the judge who sentenced the person to probation will require a high bail or more likely, the person to sit in custody pending outcome of the new charges. By way of courtesy and practice and out of respect for each other, Syracuse judges will not take any action against or for any person on probation by another judge.

Someone on probation does not have to be arrested for a felony to allegedly violate a term of their probation. A person could miss an appointment by being hospitalized or have a dirty drug test or be arrested for littering. Each probation officer decides on their own whether they are going to notify the Court that a person has violated probation. Then the sentencing judge decides what to do next. It helps to know when the sentencing judge is on a three week vacation.

Ready to play?

As part of their never ending battle to be busybodies and intervene in the private affairs of Americans, recently a few of Syracuse’s finest were following a car around. The two men inside the car were suspected of felony level drug dealing. It was later learned they had more than $6,000.00 cash in the car.

This car is being followed for several hours, back and forth from home and at one point parks two blocks from home.

Your move:

The car parks across and down the street a bit from your house. The two occupants just sit in the car doing whoknowswhat for more than 15 minutes.

Meanwhile, you are on probation for something stupid you did a long time ago and since, have been honorable and doing all the right things. You are headed outside to walk to the store and you see across the street a car with a couple people you know. They give you a shout-out and you head on over. Just as you get to the car, police cars from every direction swoop in and you are immediately taken to the ground, your pockets emptied, and you are cuffed and seated on the curb. Obviously, no contraband is found on you or your person.

The two clowns in the car take off. In doing so they hit a police car and then a tree head-on. In addition to the money, a tiny amount of drugs is found up underneath the dashboard. Obviously by teeny size and weight, the drugs were for personal use.

You are taken to jail and the next morning in front of the judge, you find out you are charged with felony assault on a police officer, felony “possession with intent to sell”, and misdemeanor possession. Even before you have a lawyer or before the judge assigns one, the count of felony assault is dismissed because the district attorney had to confess you were not in the car. In fact, you never got in the car. The felony assault charge is immediately dismissed; an act mostly unheard of in our local courts. You are already on probation so you are released to return to probation.

Despite a solid relationship with your probation officer over time and never having had a previous violation, and for whatever reasons one man lies to another, the probation officer says, “don’t worry, I do not intend to violate you for this. It sounds stupid.” Obviously you agree and are elated.

On your next scheduled appearance before the judge on the original charge, the judge hears of you, your background and situation, and through work and life, knows you in a general way but enough that he trusts your word. Your lawyer is trusted as well. Both of you tell the judge that probation has reported they do not intend to file a probation violation (a ‘sticker’) against you. You are allowed to remain free pending Grand Jury action. The case is waived and everybody goes about their merry way.

You report back to probation at the judge’s request. As soon as you walk in the door you are told to turn around and put your hands behind your back. You find yourself under arrest and back in jail facing a probation violation charge filed against you. The charge – felony assault on a police officer.

Since you are free and not in custody on the new charges, the district attorney does not have to take any action on your case for six months. The judge who sentenced you to probation is on an extended vacation.

Suddenly you find yourself again at the Onondaga County Justice Center on State Street in Syracuse in the very same situation as prisoners at Gitmo. You cannot do anything to advance your case. You just sit without charge or chance to be heard. The only option is to go and have your underlying freedom revoked. That way, at least you only have to sit in jail for 45 days. Clearly the judge who put you on probation is not going to disbelieve the police at this juncture and so he will consider there to be enough to hold you for the violation until resolution of the new drug criminal case.

So you sit in the Justice Center for at least 45 days before you ever get a chance to tell a Grand Jury what I just told you here. Namely, how very easy it is to set someone up for a long fall and how hard it can be to undo the damage. Throw in a spoonful of malice on someone’s part and you can see how a probation officer can set someone up; if they wanted to. It would not require a conspiracy, just one person who knows how to move the system just a little and in doing so then stand aside and watch its’ full weight come crashing down on someone.

Your only hope is to beat the drug charge and then sue the involved officers; including the probation officer. Be advised however that in doing so, your brother who may be similarly situated could face the same fate. Also, it will take a near half decade before your civil case is ever heard. Good luck in proving “malice”. Let me know how it turns out.

Meanwhile, enjoy your stay at the Onondaga County Justice Center.