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Questions Answered by Marco Caviglia
1 Answer | Asked in Criminal Law and Family Law for New York on
Q: Who owns the cat after the break up

My ex and I adopted a cat together and cared for it together for years. We broke up and did split custody for a while, now she wants to stop sharing and is claiming the cat is legally hers and will report her stolen if I dont return her by the arranged date. The adoption papers and microchip are in... View More

Marco Caviglia
Marco Caviglia
answered on Sep 9, 2023

Simplifying your situation, the court will look at the indicia of ownership concerning the cat, which appears to favor your former girlfriend. If she wants to file a theft charge against you for not returning the cat, a police officer might do that. An alternative is for you to seek a replevin... View More

1 Answer | Asked in Family Law and Child Custody for New York on
Q: Filed a petition for custody of my grandson. What are my chances?

My daughter in law was incarcerated out of state. My son went to retrieve her and my grandsons aunt filed for emergency temporary custody. Son and DIL have joint custody. It was a toxic relationship for 5 years. Mother again was incarcerated in NY. Sole custody was granted 2 months ago. I just... View More

Marco Caviglia
Marco Caviglia
answered on Sep 9, 2023

Critical missing information concerns which state granted the joint custody, and did it still have jurisdiction when a court, if different, granted the aunt temporary custody. That court subsequently granted sole custody to the aunt according to you. You then filed for custody after that. Your... View More

1 Answer | Asked in Family Law, Estate Planning and Probate for New York on
Q: PR, what happens when a beneficiary included in a Will is deceased but has a surviving spouse and children?

My grandparents passed away and left a Will where all grandchildren are beneficiaries. My grandparents' children are deceased. The house is up for sale. There are six grandchildren, of which one is deceased, but has a living spouse and two children. We are unable to locate them to inform... View More

Marco Caviglia
Marco Caviglia
answered on Sep 9, 2023

Distribution of assets down the lineage to classes of beneficiaries depends upon the specific wording of the Will, which must be reviewed, as a determination of whether the testator's intent was that the estate assets were to pass down the lineage by per stirpes or per capita must be made.... View More

1 Answer | Asked in Family Law for New York on
Q: Is repeatedly yelling at a child and alienating them from their family considered emotional abuse or neglect?

We have 50/50 custody of our daughter, and every other week she spends at her mother's. Each week when she comes home it takes days to re-regulate her behavior and mood before she opens up about events and situations that happened the past week at her mom's. Often time this includes a... View More

Marco Caviglia
Marco Caviglia
answered on Sep 4, 2023

If your facts are correct, in NYS a petition in family court may be in order. The prior legal guardian, or if none, a request for a legal guardian would be made, and that guardian represents the child independently of the parents and makes a determination and advocates to the judge what should be... View More

1 Answer | Asked in Estate Planning for New York on
Q: At the execution of a Will, at the request of testator , witnesses are asked to sign Affidavit of attesting Witnesses ,

a notarized sworn statement by the witnesses. According to NY Code Section 1406, is the testator also required to sign this Affidavit ?

Marco Caviglia
Marco Caviglia
answered on Sep 4, 2023

No, in NYS the testator does not sign the affidavit, just the Will. The affidavit is meant to serve as a substitute for the court to the live testimony of the witness(es) that the testator signed the Will before them and was of sound mind, etc. The reason for the affidavit is that often it is a... View More

1 Answer | Asked in Estate Planning and Probate for New York on
Q: My mother died in 2001 without a will. How do I retrieve my property?

My mother died in 2001 without a will. I have two brothers, one has passed away. The property left without a will is located in Barneveld, NY. It is 5 acres. My brother who passed away was the executor of the estate. I asked him for years to give me my portion of the property or buy it from me. He... View More

Marco Caviglia
Marco Caviglia
answered on Sep 4, 2023

In NYS, if your mother died a widow and without a will, then your brother was never an executor. If he was an administrator recognized by the court there is a record of that in Surrogate's Court. If you are entitled to a share of the property in this if your mother died intestate (without a... View More

1 Answer | Asked in Criminal Law and Personal Injury for New York on
Q: In New york state, if someone was to host an event, with donations accepted

and there so happened to be two parties that wanted to fight, accident waivers and release forms signed. is there anything in the law stopping this fight? will the only people liabal for said fight would be the two parties and not the host of the event.

Marco Caviglia
Marco Caviglia
answered on Sep 2, 2023

Laws don't stop fights, they just tell one what conduct is illegal and the penalty if a perpetrator gets convicted. Your question seems to really be what is your liability. If you are somehow civilly responsible for allowing the fight (or promoting it) your accident waivers, even if... View More

1 Answer | Asked in Criminal Law and Juvenile Law for New York on
Q: If my son was charged for a crime but upon being picked up he wasn't ready any rights is that proper arrest

He was on house arrest for other charges and was told he was going to get fingerprints and be released to me.i was on the phone when they told him this so I agreed but then they kept him and charged him for something else but he wasn't aware or read any rights.he also has a mental disability.i... View More

Marco Caviglia
Marco Caviglia
answered on Sep 2, 2023

In NY, the police need not administer Miranda rights until he is actually arrested. Often, they will delay a formal arrest of a target in order to interview him, raising the potential suppression hearing issue that the defendant was in actual custody, not just being interviewed. Consult a... View More

2 Answers | Asked in Criminal Law for New York on
Q: Can I obtain any photos or info from my mother's 1989 murder? Decent has been tried and convicted and still serving time
Marco Caviglia
Marco Caviglia
answered on Sep 2, 2023

File a Freedom of Information request of the investigating police agency. If the case is closed and no longer appealable you may be entitled to receive the information or be allowed to review the file if not digitized. A word of caution, murder files have gruesome material, especially autopsy... View More

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2 Answers | Asked in Criminal Law for New York on
Q: If I have a case pending but no conviction yet, does that show up when an employer does a background check

I need to know if I have a case pending for a criminal matter but have not plead quilty or been proven quilty does that appear when an employer runs a fingerpring/background check.

Marco Caviglia
Marco Caviglia
answered on Sep 2, 2023

Yes, that information is obtainable as the case is still a matter of public record, absent a sealing order. An adjournment in contemplation of dismissal is still also an open case as it has not yet been dismissed, so although one no longer goes to court for 6 or more months and it is automatically... View More

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2 Answers | Asked in Criminal Law for New York on
Q: My lawyer got my case off with no record in nyc, does that mean it’s under sealed or completely erased?

It was 4/5 felonies. I had to finish school and pay a fine, I plead not guilty.

Marco Caviglia
Marco Caviglia
answered on Sep 2, 2023

Your facts suggest you were in fact convicted of a crime if you paid a fine. If your conviction was for a crime, the fingerprints and mugshot and criminal history are there forever, unless somehow expunged or sealed. A charge that is dismissed has the associated fingerprints and photographs... View More

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1 Answer | Asked in Criminal Law for New York on
Q: Can I get if trouble if there’s an active order of protection against me, but the “victim” approaches me?”

I said don’t talk to me, got in my car and left. There was no police contact. No one holding either party back. I said leave me alone and she went the other direction and I went home. (NYS)

Marco Caviglia
Marco Caviglia
answered on Feb 14, 2023

When the protected party approaches the restrained party intentionally, that party should leave if possible. If the other person follows or persists in such or similar behavior, call the police and complain about it and call your attorney, as intervention may be in order to modify or rescind the... View More

1 Answer | Asked in Criminal Law for New York on
Q: If my cousin doesn’t live with his child’s mother but is there periodically, can they legally issue a search warrant?

He also was not there while they searched the premises and the search warrant was based of him selling drugs but not outside of her house

Marco Caviglia
Marco Caviglia
answered on Feb 14, 2023

The existence of a search warrant means a judge reviewed the attestation of facts and found sufficient cause to have the premises searched in pursuit of an investigation, and presumably enough to connect the premises with the defendant and suspected crime(s). He can challenge the warrant prior to... View More

1 Answer | Asked in Criminal Law and Federal Crimes for New York on
Q: Without a firearm license, Is it illegal to have Byrna SD pepper ball gun inside the house that I own in Brooklyn NY?

I don't have a fire arm license, for example, if the police would have found Byrna SD pepper ball gun in my house can they charge me with anything?

Marco Caviglia
Marco Caviglia
answered on Feb 14, 2023

Charged with "anything" is pretty broad. That said, this device is not listed as a firearm in the Penal Law of NYS, nor does it seem capable of discharging a bullet without alteration, so does not appear to require a firearm license. You should review PL section 265.00 to satisfy... View More

1 Answer | Asked in Criminal Law for New York on
Q: I let a friend use my truck a few months ago. Now he won't return it and locked it in his garage and went to Florida.

I was doing him a favor but now I think he's either forged my name on the title because it was in the glove box. I think that's y He's ignoring my plea to get it back

Marco Caviglia
Marco Caviglia
answered on Feb 14, 2023

If it is provable that you gave him the vehicle as a loan, with a designated date to return it, and he has not done so, then he may be charged with an A misdemeanor for unauthorized use. That you would leave the title in the glove box and your presumption that he has forged your name for a... View More

1 Answer | Asked in Criminal Law for New York on
Q: I am 16 no prior criminal record and live in NY.Can i get jail time for dissemination of intimate photo?

I am 16 no prior criminal record and live in NY. The video was of my ex and she accused me of spreading it around the school, I sent it to 1 person only and it was my cousin back then in July. Me and her broke up in october and I deleted everything after. She got a new boyfriend and let’s say his... View More

Marco Caviglia
Marco Caviglia
answered on Feb 14, 2023

If the victim is under 17 years of age, and it included sexual conduct, it constitutes a sexual performance of a child and exposes the inducer of such performance to prosecution for a class C felony, which is very, very serious. Sending it, and everyone after that who sends it, has exposure to... View More

1 Answer | Asked in Criminal Law for New York on
Q: How long can a Grand jury indict and not inform the defense what those charges are against his client?

Male arrested on 1/20, is still sitting in jail without official charges. Grand jury met on 2/2. No testimonials, evidence, or body cam footage has been shared with his public advocate yet.

Marco Caviglia
Marco Caviglia
answered on Feb 14, 2023

First, he can't be in jail without "official charges" because he was arrested and presumably arraigned, at which time the charges, in the form of complaint(s) or information(s), are read to the defendant and he entered a (not guilty) plea. He is apparently being held on no bail or... View More

1 Answer | Asked in Criminal Law on
Q: Can someone PLEASE tell me what this means

6/7/2022 Felony - PC3455-F: Violation Of Community Supervision

DISPOSITION 2/2/2023 Dismissal/Stricken - Petition for Community Supervis. (CJR)

CHARGES, DISPOSITIONS & PLEAS

Marco Caviglia
Marco Caviglia
answered on Feb 12, 2023

It appears that there was a violation of some type of probation filed but which was dismissed later. Best to contact the probation department from which the complaint would have been filed, or the court clerk of the court dismissing the complaint.

2 Answers | Asked in Divorce and Family Law for New York on
Q: Divorced in 2018, was awarded half of an IRA, my ex has not given it to me since then & he won't let me see my son

My ex was supposed to give me half of an IRA as rewarded by the courts and I have joint custody of my son. He has not given me the money and is now refusing to let my son visit me.

Marco Caviglia
Marco Caviglia
answered on Feb 14, 2023

On the visitation issue, you must petition in Family Court. On the division of property issue, you should go to Supreme Court, which may also handle the visitation issue if it desires and prior to your filing in Family Court. You probably need an attorney, so consult one.

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1 Answer | Asked in Criminal Law for New York on
Q: Accountants criminal intent

Good Afternoon, I recently consulted with an accountant regarding my and my husbands taxes and tax planning. During the course of the conversation, she suggested that she could set aside money for me by taking money from my families (my and my husband and children's trust) and place in a... View More

Marco Caviglia
Marco Caviglia
answered on Jan 10, 2024

Discuss with your husband and get a different accountant.

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