Questions Answered by Andrew S. Tabashneck

Q: I have one question and that is --do judges and district attorney accept letters from families ?

2 Answers | Asked in Criminal Law, Arbitration / Mediation Law and Gov & Administrative Law for New York on
Answered on May 9, 2018
Andrew S. Tabashneck's answer
I am very sorry to hear your are going through this.

To answer your question, yes, you can most certainly send a letter to the judge and the district attorney. In fact, you could even call the district attorney, or the assistant district attorney assigned to the case, and ask to meet with her. It is very possible she may meet with you and you could address the concerns you have. At the same time, uou may want to be careful because, depending on the ada, you could bring your daughter...

Q: My daughter is 15 and a 19 year old is threatening her in school and social media. Can I press charges for harassment?

1 Answer | Asked in Criminal Law, Education Law and Internet Law for New York on
Answered on May 8, 2018
Andrew S. Tabashneck's answer
In New York, there are a number of harassment laws. Generally such laws prohibit a wide array of activities intended to harass, annoy, threaten, or alarm people.

If this 19 year old is threatening and engaging in behavior that would cause a reasonable person to feel annoyed, then at the very least, one of the less serious charges of harassment would apply. It is difficult to determine which level of harassment applies to this situation because of the lack of facts. For instance,...

Q: I gave my sister custody of my child but she wants to give it back, how do i regain custody ?

1 Answer | Asked in Family Law and Child Custody for New York on
Answered on May 8, 2018
Andrew S. Tabashneck's answer
It is difficult to answer this question without a little more information. When you that you gave your sister custody of your child, I am curious as to whether a court order was involved. For instance, did you both come to an agreement and was the agreement then made formally part of a court order? Or, on the other hand, was this more of an informal arrangement between you both which worked out for a period of time, but perhaps the situation has changed?

Bottom line, if there is no...

Q: I have joint custody of my son with my ex. My son wants to be emancipated from her. How does he go about it?

1 Answer | Asked in Child Custody and Family Law for New York on
Answered on Feb 8, 2018
Andrew S. Tabashneck's answer
It is difficult to answer the question without more information. The issue of emancipation depends on a variety of factors. One of those factors is not whether the party has an explicit desire to be considered emancipated.

Under New York law, emancipation prior to age 21 may occur if the child marries, becomes self-supporting, enters the military or engages in a course of conduct that is inconsistent with the parent-child relationship. Under the doctrine of constructive emancipation,...

Q: For employment purposes, what are my chances of getting an early ACD dismissal?

1 Answer | Asked in Criminal Law for New York on
Answered on Feb 8, 2018
Andrew S. Tabashneck's answer
Under CPL Section 170.55, an ACD is an adjournment of the criminal proceeding against the defendant for a certain period of time -- at the end of which, the charges against the defendant will be dismissed. The defendant is required to "stay out of trouble" during the adjournment period or else the criminal charges may be restored by the prosecutor.

Whether you are eligible for an ACD depends on the crime you are charged with, criminal history, district attorneys office, and a number of...

Q: Is it legal for wife to have a abortion without husband knowledge

1 Answer | Asked in Family Law and Civil Rights for New York on
Answered on Feb 7, 2018
Andrew S. Tabashneck's answer
If a man's pregnant partner seeks to have an abortion, the father's consent isn't legally required. A woman may choose to terminate a pregnancy against the objections of the father. The Supreme Court addressed this question in Planned Parenthood v. Casey and found that the father does not have a legal right to be notified of an abortion. American law places much of the decision making power regarding abortion in the hands of the prospective mother. She may choose to terminate a pregnancy...

Q: What are the statue of limitations for sexual abuse of a minor? What can I do if the statue has passed?

1 Answer | Asked in Criminal Law and Sexual Harassment for New York on
Answered on Feb 6, 2018
Andrew S. Tabashneck's answer
I am very sorry to hear about this and very much admire your courage in discussing this matter.

For sexual offenses, the statute of limitations is five years after the last incident and begins to run when you turned 18 years of age. There are also possible exceptions where the statute of limitations may be extended under certain circumstances. Even if this incident occurred a long time ago, I would suggest attempting to go police because it's entirely possible that an exception...

Q: A person is guilty of prostitution when they engage in sexual conduct for a "fee". What is considered to be a fee?

1 Answer | Asked in Criminal Law for New York on
Answered on Feb 6, 2018
Andrew S. Tabashneck's answer
Because crypto-currencies are pretty new, I doubt there is case law which directly relates to that form of a transaction. As it relates to food, clothes, an iphone, etc, Initially, I assumed the court would interpret this as being within the statutory definition of a fee. However, there is a case in New York, People v. Block 71 misc. 2d 714, which defined the term "fee", based on the Websters Dictionary, as "Compensation, often a fixed charge, for professional service or for special and...

Q: Hello I was charged with 3rd degree criminal trespassing yesterday what are the odds that I may be going to jail if.

1 Answer | Asked in Criminal Law for New York on
Answered on Jan 20, 2018
Andrew S. Tabashneck's answer
Under New York’s Penal Law 140.10, trespass in the third degree requires simple trespass along with the allegation that the accused unlawfully remained in an area which was fenced in or otherwise enclosed so as to exclude intruders. Trespass in the third degree is a class B misdemeanor.

As a class B misdemeanor, under Penal Law 70.15, the maximum sentence would be three months in jail and the fine cannot exceed $500. However, it is unlikely that you will receive the maximum sentence....

Q: Non custodial parent hasnt been around for 2 years and hasnt really payed child support now he wants custody

1 Answer | Asked in Family Law and Child Custody for New York on
Answered on Jan 16, 2018
Andrew S. Tabashneck's answer
tough to speculate without more facts, but with a history of dv and with any recent incidents, you could attempt to obtain a type 1 order of protection. But this probably would not prevent the father from being granted at least some visitation. The age of each child will be relevant to the final determination, and if the children are old enough, the judge will consider their perspective through the Attorney for the Child. Although more facts are needed to make a determination, it is very...

Q: How do I file the motion is there a print out?

1 Answer | Asked in Criminal Law for New York on
Answered on Dec 18, 2017
Andrew S. Tabashneck's answer
If you are looking for the form, send me an email and I can send you a template form.

My email is "andrew@tabashnecklaw.com"

Make sure to put on the subject: "190.50 Motion."

Andrew Tabashneck

(716) 898-0849

Tabashnecklaw.com

Q: I was accused of stealing at my work, was arrested got let go no criminal record just a court date what will happened?

1 Answer | Asked in Criminal Law for New York on
Answered on Dec 18, 2017
Andrew S. Tabashneck's answer
It is difficult to answer your question without more information. For instance, the exact charge (petit larceny?), the amount the police allege to be stolen (over or under $1,000?), and it is very important to examine the accusatory instrument. I would certainly urge you to at least speak to an attorney and certainly retain a lawyer if that is possible. Depending on the charge and your income, you may be entitled to an attorney at the public defenders office.

I could give you a free...

Q: How can I get full custody of my son?

1 Answer | Asked in Child Custody and Family Law for New York on
Answered on Oct 29, 2017
Andrew S. Tabashneck's answer
Based on the limited facts you have described, it seems best to file a petition for custody. It is possible the court could order some amount of limited visitation if the father shows up and argues strongly in favor of it. Although considering that he has played no role in the child's life, for 11 years, the fact that he is currently in jail, and the reality that he has failed to support the child in any meaningful way, it seems unlikely that the court would award any amount of substantial...

Q: I'm still married but living separately and she is keeping my son from me do I still have to pay without a court order

3 Answers | Asked in Divorce, Child Custody and Child Support for New York on
Answered on Oct 29, 2017
Andrew S. Tabashneck's answer
First, I assume you are referring to paying child support.

Most likely, yes, you still have to pay.

Based on the limited facts provided, the best course of action is probably to bring either a "show cause" hearing, a petition relating to contempt, or a custody petition. However, first, you would need to have a custody order in place. If you are paying child support, I assume you have a custody order. Under the circumstances, the prudent course of action is to go to court,...

Q: Does New York state recognize common law marriages from other states? If so how do I go about getting it annulled?

1 Answer | Asked in Divorce for New York on
Answered on Oct 25, 2017
Andrew S. Tabashneck's answer
New York State does recognize common law marriages from other states. To get the marriage annulled, you must show the marriage is void or voidable. A marriage is void if it is incestuous or bigamous. A marriage is voidable for lack of legal age, incapacity to give consent for want of understanding, physical cause, mental illness or where the consent was obtain by force, duress or fraud.

In order to obtain an annulment, you must establish facts that demonstrate the marriage was void or...

Q: I was wondering, can I go into family court an force the father to visit his kids.

1 Answer | Asked in Family Law for New York on
Answered on Oct 25, 2017
Andrew S. Tabashneck's answer
There is no way for you or the court system to force the father to visit the kids.

Q: I'm 21 and dating a 16 year old. She will be 17 in 2 months. Are we breaking any laws?

1 Answer | Asked in Juvenile Law and Criminal Law for New York on
Answered on Oct 24, 2017
Andrew S. Tabashneck's answer
New York statutory rape law is violated when a person has consensual sexual intercourse with an individual under age under age 17. If you are not engaging in sexual intercourse, which encompasses a number of sexual acts (none of which you have described), then you. have not violated the law

Q: unmarried father my baby mother wants to move out with my son

1 Answer | Asked in Family Law for New York on
Answered on Oct 24, 2017
Andrew S. Tabashneck's answer
based on the limited description here, it could be a good idea to file a petition for a show cause hearing and check off the box stating that the child is not to be taken outside of the state. Based on what you have described, however, it's not clear where the mother is moving. Regardless, in the long-term since, the best course of action could be to file a petition for custody. That way, you and the mother could work out a custody agreement .In the more immediate sense, the show cause hearing...

Q: How do I file for a divorce. We both agree we want a divorce but we were married in mexico, does that change anything?

1 Answer | Asked in Divorce for New York on
Answered on Oct 22, 2017
Andrew S. Tabashneck's answer
You may obtain a divorce in the United States even if you were married overseas. However, in order to do this, your marriage must have been valid under the laws in the jurisdiction where you were married and you must serve legal notice of the divorce proceedings to your spouse’s current address. If your spouse’s current address is overseas, then you must serve notice to that address. Critically, the laws governing the proceedings will be based on the state where you filed the action....

Q: Want to move to Florida. Dad giving me problems. What can I do?

1 Answer | Asked in Family Law and Child Custody for New York on
Answered on Oct 21, 2017
Andrew S. Tabashneck's answer
You would need to show the relocation to Florida is in the best interests of the child. In other words, the move would offer financial stability, there would be sufficient social support, perhaps better schooling, or other factors that relate to being in the child's best interest. In this case, the fact that the Dad is very involved in the child's life makes the case for relocation more difficult. Dad, for example, could say that the move would lead to a diminished relationship which is not in...

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