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Saturday, April 30, 2016

School ground scuffle.


Can my son be arrested by being guilty of association and is this harassment? Keep in mind... They are 14 year old kids

Asked 22 minutes ago - Little Falls, NY
Practice area: Criminal Defense
Son in park with 2 friends. One friend hanging out with girl.. Supposedly play pushing each other. While other 2 boys talking with each other. Girl told boy to stop pushing but contnued to with him ( my sons friend. ) so he continued. He lifted his elbow up and bumped her in nose causing a nosebleed. Girl went home (actually walked half way with my son and his other friend that wasn't involved in pushing). Father got upset because she came home with bloody nose and called cops. He didn't think the boy that was pushing her should have had his hands on her.. Cops came to question my son which he told them he saw them as just goofing off...nothing out of anger or fighting. Cop told my son he could be arrested by being guilty of association because he didn't call cops to get girl help. Is this true?? My son didn't even think anything was wrong... He said it was all out of fun and he accidentally bumped her nose. These kids have been friends for some time.. Including the girl.. But apparently the father doesn't like the boy that gave her the bloody nose. I need to know if it is accurate that my son that had nothing to do with her getting a bloody nose could be arrested ?

ATTORNEY ANSWERS (1)

  1. Answered Police could arrest your son on a claim of assault if they feel if he was part of the assault. However, my general understanding of these situations is the police do not like to involve themselves in school ground scuffles. Contact a lawyer for your son though just in case.
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Friday, April 29, 2016

Wife wants back with rapist husband.


How do I, as the victim, go about having this part of his sentence modified or lifted changed so we can see each other?

Asked about 13 hours ago - Felton, DE
Practice area: Criminal Defense
I would like to get a criminal no contact order lifted for my exhusband. He was sentenced to 10 years for rape 2nd w/o consent & possession of deadly weapon in commission of a felony. I was the victim. Through his family I have learned of his self improvement endeavors & since this crime occurred while he was under the influence of drugs & alcohol, & he has since been put on medications appropriate for his mental issues I feel perfectly safe & would like to be able to see him & work on rekindling our relationship. He has a no contact order with me given him by the superior court judge as part of his sentence

ATTORNEY ANSWERS (1)



  1. Answered You can have your husband file a motion to modify the sentence but I feel your case will fall flat. You were raped by this man with a deadly weapon. You would need a medical professional to bolster your testimony, so I suggest seeking a therapist as soon as possible. This is an awful crime, take time to consider what you are asking.
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Thursday, April 28, 2016

Can planning a murder land you in jail?


Can planning a murder land you in jail?

Asked 23 minutes ago - Seattle, WA
Practice area: Violent Crime
Can planning a murder land you in jail?

ATTORNEY ANSWERS (1)

  1. Answered This is an old law school question. The real question is, are you planning a murder of a specific person or making up a hypothetical perfect murder. If a person plots the murder of another and make substantial steps to prepare to commit said murder, such as an overt act, then they can go to jail for attempt. If they plan with another then they are guilty of conspiracy.
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Wednesday, April 27, 2016

Recorded conversations as Evidence.


Are phone calls recorded between someone outside the USA and someone in a 2-party consent state admissible as evidence in court?

Asked 22 minutes ago - Mountain View, CA
Practice area: Criminal Defense
This question is purely out of curiosity.

To expand on the question, if someone living in a country other than the United States records a phone call with someone in the United States who lives in a two-party consent state, is the phone call admissible as evidence in court with only 1 persons consent?

ATTORNEY ANSWERS (1)

  1. Answered This is a complex question. Under California law this is not admissable because it is illegally obtained evidence. But it all depends on where the recording took place at. Was the recording on foreign soil and which court will it be brought in. If in California and in California court, judge may allow it, but it is doubtful. Federal court and recording on foreign soil, then the McMIllan standards apply:
    The recording device must have been capable of taking the conversation now offered in evidence
    The operator of the device must be competent to operate the device
    The recording must be authentic and correct
    Changes, additions or deletions have not been made in the recording
    The recording must have been preserved in a manner that is shown to the court
    The speakers must be identified
    The conversation elicited was made voluntarily and in good faith, without any kind of inducement.*6*.
    I need more facts to fully answer your question.
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      All information provided by this site, including summaries and articles on legal topics, is general in nature and provided for informational purposes only. This information is not intended as legal advice, and should not be taken as such. Legal advice involves an attorney’s application of legal knowledge and judgment to specific facts and circumstances presented by a client. Before providing specific advice, a lawyer may need to conduct legal research and/or obtain additional facts. Nonlawyers should therefore not draw conclusions about what may be legally required, permissible, or advisable based solely upon consultation of general sources of legal information, including this and other law firm websites, without first seeking appropriate legal advice.

Tuesday, April 26, 2016

My favorite case, neighbor from hell!!!!


Favorite fact pattern of a case of all time. I pulled this from :http://law.justia.com/cases/california/court-of-appeal/4th/52/754.html

Reichardt v. Hoffman (1997)


In 1977, defendant paid $21,000 for a one-acre lot adjacent to the property now owned by plaintiffs. Plaintiffs' property already had a home on it at that time. The only use that defendant has ever made of his vacant lot has been as a place to store old trucks, a boat and other debris including roofing tile, beams, concrete blocks and fragments, a cement mixer, saw horses and lumber. Defendant's neighbors and the health department asked him to remove this debris, but he did not respond to these requests. Defendant kept a nonfunctional pickup truck on his lot for a decade even though he was cited in both 1987 and 1989 by the Monterey County Department of Health for storing this vehicle on his property and directed to remove this "health and safety" hazard immediately. In 1989, defendant was cited by the California Department of Forestry for maintaining a fire hazard on his lot. Defendant has also been cited for illegally grading his lot without a permit. Less than a month before trial, defendant removed the nonfunctional pickup truck from his lot.
Defendant's grant deed states that he has a "non-exclusive easement for driveway purposes" over a strip of land 25 feet wide and 80 feet long across the front of plaintiffs' property. Defendant's lot is not landlocked. It fronts on a public street. The front porch of plaintiffs' home encroaches a few feet into defendant's easement. Defendant became aware of this encroachment in the 1970's. In 1980, a variance was granted to previous owners of plaintiffs' property which permitted the house to violate the setback requirement fn. 1 on the condition that "the right-of-way be kept clear to provide proper access" to defendant's lot.
Plaintiffs purchased their property in June 1987. In August 1987, defendant first encountered plaintiffs when he found vehicles parked in the easement blocking his access to his lot on the day of plaintiffs' wedding. He knocked on plaintiffs' door, complained about the cars parked in front of [52 Cal. App. 4th 759] plaintiffs' house and told plaintiff Judith Reichardt (hereafter Judith) that "they weren't supposed to park" in the easement. Judith had just gotten out of the shower and was wet and in her robe. She explained that this was their wedding day, and they were going to have a number of guests. She asked defendant if he was going to require access to his property again that day. Defendant told her "it doesn't matter whether I will be back later today or not. No cars are ever to be parked there." Defendant insisted upon talking to "the groom," but he was not permitted to do so.
Through the years, defendant has consistently insisted that no cars are allowed to park anywhere in the easement area. He claims that there is not adequate room for a vehicle to pass if another vehicle is parked in the easement. However, he concedes that the easement area is at least 20 feet wide. Everyone other than defendant has concluded that there is plenty of room for two cars to pass one another in the easement area. A few days after the August 1987 encounter, while plaintiffs were away on their honeymoon, defendant returned and removed much of the vegetation and part of a tree that were growing on plaintiffs' property along the edge of the easement. He did not contact plaintiffs before doing so. Plaintiffs' friend, who was housesitting for them while they were away, saw defendant doing this and asked defendant to stop, but defendant refused. Defendant's mutilation of this vegetation left a "mud wall" bare of vegetation in front of plaintiffs' house. The tree later died, and the vegetation never grew back.
In late 1987, plaintiff William Reichardt (hereafter William) first met defendant. Defendant told William that "this was his easement and we were to treat that easement area, the paved area, as if it were a street with no parking signs on it ...." William asked defendant if it would be advantageous for defendant to have direct access to his property from the street. Defendant asked whether William had $50,000 "to contribute to the possibility of putting in a new driveway." William replied that he did not. Around Christmas of 1987, defendant pounded on plaintiffs' front door very early on a Saturday morning and demanded that a car parked on the easement be moved. William moved the car so that defendant could get by, but he did not move the car off the easement. Defendant became irate and demanded that the car be removed entirely from the easement area. William did so, but defendant insisted that the car was still on the easement and became even more angry. He said "you just can't park in front [of your house] at all. This is my easement, you are never to park on it." William removed his car from the front of his house. William had a similar encounter with defendant in March 1988. These incidents were "ongoing" through early 1991 although William could not remember the dates of any other specific incidents.
Plaintiffs had not been apprised of the existence of defendant's easement when they purchased their property. After learning of its existence, they [52 Cal. App. 4th 760] made a claim against their title insurer, the seller and the seller's real estate agent. This claim was settled in 1990. In 1991, plaintiffs tried to contact defendant in an attempt to convince him to sell them his easement. In May 1991, defendant told them that he had received their communications and "he was sure we could work something out." A month later, defendant told them that he "was still thinking about it" but "had been too busy to get to it." In the fall of 1991, Judith met with defendant and showed him plans that plaintiffs had had prepared for an alternative driveway access for defendant's property. Defendant orally agreed to accept a sum of money to cover the cost of an alternative driveway in exchange for giving up his easement. Based on this apparent agreement, Judith expended $1,750 for plans for the alternate driveway. However, defendant never agreed to a specific sum nor did he ever sign a written agreement to exchange his easement for a sum of money.
Plaintiffs moved to Oregon in January 1992 and rented out their property. In February 1992, Judith traveled to Monterey for the sole purpose of finalizing her agreement with defendant regarding the easement. The alternative driveway was estimated to cost about $23,000 so Judith borrowed $30,000 and placed this sum in escrow for defendant. After defendant failed to close the escrow, Judith contacted him and asked why he had not completed the transaction. Defendant said "what's it worth to you." The transaction was never completed, and this was the last contact Judith had with defendant.
Defendant subsequently had heated encounters with plaintiffs' tenants in which he demanded that they move vehicles parked in the easement area. He also took a photograph of one of these tenants as he went to move his vehicle in his bathrobe. Defendant even called the police about one of plaintiffs' tenants on one occasion. When plaintiffs listed their property for sale, defendant attended several open houses held at plaintiffs' property. Defendant parked his truck with a garbage can in the back of it along the property line between his lot and plaintiffs' property. He took a camera with him, handed out fliers, posted a sign and wrote down the license numbers of the vehicles parked outside plaintiffs' home during these open houses. The sign and fliers said "take notice that there exists a recorded driveway easement ... [which] might be subject to vehicular traffic at any time day or night seven days a week, 24 hours a day." Defendant also spoke with potential purchasers and potential renters attending these open houses. Plaintiffs' real estate agent observed this conduct and concluded that defendant was "intimidating potential tenants or buyers." The agent herself felt intimidated by defendant.
Eventually, in October 1993, plaintiffs received an offer to purchase their property from Mark Porter. At this point, plaintiffs were in serious financial [52 Cal. App. 4th 761] difficulty and needed to sell their property to alleviate this financial crisis. "Our whole lives were occupied with trying to sell that house." Porter's offer was contingent on Porter meeting with defendant to discuss the possibility of removing the easement. fn. 2 Porter contacted defendant to discuss the easement. He hoped that he would be able to "establish a comfort level" with defendant by either putting in an alternative driveway for defendant or "somehow working things out with the two owners ...." They arranged a meeting. Defendant was aware at this time that plaintiffs were experiencing serious financial difficulties and were desperate to sell their property and that Porter had offered to buy the property. Defendant met with Porter at the property. When defendant arrived at the property, defendant immediately became upset when he discovered that one of plaintiffs' tenants' guests had parked his car in the easement area. Defendant parked his truck so that the guest could not drive his vehicle away while defendant met with Porter. Porter observed this encounter.
Porter then spoke with defendant. Defendant told Porter that his easement "was the entire front yard" of plaintiffs' property. He said that plaintiffs' front porch was "the first thing that's going to be torn off there the minute you buy the place." Porter told defendant that he hoped that they "could sit down and somehow work out a situation where we can be comfortable living next to you and sharing this easement or possibly just putting [in] a new driveway." Porter mentioned that he had children and a dog and he hoped to possibly put a dog run in front of the house. Defendant said, "there will be nothing in the easement. If there is anything in the easement I will run it over." Porter asked if he meant children, and defendant said "anything." Defendant refused to even discuss an alternative driveway unless Porter had "eighty to a hundred thousand dollars" to contribute.
Defendant also told Porter that Porter was paying too much for plaintiffs' property and that plaintiffs' house had "several structural problems." Defendant informed Porter that plaintiffs had received $100,000 in compensation in their action involving their lack of notice of the easement. Defendant said that "it was his money, not their money, it was his money. And that's why he has been fighting them for all these years because he felt all along it was his money." Porter decided not to buy plaintiffs' property because defendant "is a complete basket case" and "I can't even reason with him." "[T]he biggest thing is the fact that he mentioned that he would run over our kids or anything that was in the driveway, dogs, kids, bikes, anything." "I couldn't live next to a man like that. He was too off the wall. I really felt very threatened." [52 Cal. App. 4th 762]
After Porter decided not to purchase the property, plaintiffs' real estate agent concluded that the property was unmarketable because defendant intimidated people and interfered with attempts to market the property. Plaintiffs received no other viable offers to purchase their property. Had Porter completed the purchase, plaintiffs would have realized a net gain of $88,000. The loss of this potential sale was a "devastating" blow to plaintiffs because it left them with "no money," and a negative cash flow which placed them "up against the wall." William "collapsed in tears" and "[i]t was very difficult" for him to deal with this situation. Judith's emotional condition was also detrimentally affected. "It kind of meant the end for us."
Plaintiffs filed an action against defendant in November 1993 seeking to extinguish his easement, obtain declaratory and injunctive relief and obtain compensatory and punitive damages for interference with contract or prospective economic advantage, nuisance and violation of the CC&R's. After a court trial, the court issued a judgment extinguishing defendant's easement, enjoining him from interfering with plaintiffs' property and from violating a number of the CC&R's and awarding plaintiffs $150,000 in compensatory damages and $50,000 in punitive damages. The trial court issued an extensive statement of decision in support of its judgment.
The court made the following findings. The court concluded that defendant had created a nuisance and violated the CC&R's. His conduct prevented plaintiffs from having "free use" of their property and interfered with their "comfortable enjoyment" of their property. Defendant's easement was "subject to" the CC&R's. The various citations that defendant had received as a result of his use of his lot violated the CC&R's. Defendant's demands that the easement be kept "completely clear" for his "exclusive use" were reflective of his belief that the easement was his exclusive property and his conduct was consistent with this belief. However, the easement area was wide enough to allow defendant access to his property even with another vehicle parked in the easement area. The agreement that the easement would "be kept clear to provide proper access" did not convert the easement from a nonexclusive one to an exclusive easement. The purpose of this agreement was simply to ensure that defendant had "adequate passage" to his property. Defendant's conduct in connection with the easement was "incompatible with both the nature and exercise" of the easement. By treating the easement as exclusive, defendant had "surcharg[ed] the non-exclusive nature of it" and used the easement to "harass and intimidate" plaintiffs and their guests. Defendant's conduct prevented plaintiffs from "making any use" of the easement. Defendant had "harassed and frightened" plaintiffs' tenants and their real estate agent in connection with the easement, and his conduct had caused Porter to decide not to purchase plaintiffs' property. [52 Cal. App. 4th 763]
Since reasonable access to defendant's property could be obtained from the public street adjoining the lot rather than by way of the easement, the court concluded that it was appropriate to extinguish defendant's easement. The court awarded $88,000 in damages for defendant's interference with plaintiffs' economic relationship with Porter, $22,000 for defendant's creation of a nuisance and violation of the CC&R's and $40,000 for plaintiffs' emotional distress arising from defendant's interference, his creation of a nuisance and his violation of the CC&R's. In addition, the court awarded $50,000 in punitive damages based on defendant's conduct in connection with the Porter offer. Defendant's motion for a new trial was denied, and he filed a timely notice of appeal.

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