Tag: New York

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Biological father blocked from asserting paternity: New York appeals court

The biological father of a child cannot establish paternity if he has neglected to assume such a role, a New York appeals court has ruled in decision that fills in the limits of such claims.

It was in the best interests of the eight-year-old child to deny a request by the father for a genetic test where the mother acknowledged that the father was the son’s biological parent, the Appellate Division in Brooklyn decided on April 19.

The court noted that state law gives parents the right to a DNA test to aid in a determination of paternity unless a judge finds that the test would not be in the best interests of the child. The judge at Family Court found that the test would not be in the best interests of the child because the putative father had not participated in his upbringing.

The Appellate Division agreed. Writing on behalf of three of his colleagues, Justice Mark Dillon noted that the father “provided limited financial support for the child and had seen the child only approximately 20 times over the course of the child’s life.”

“The [mother’s] husband, whose name appears on the birth certificate, had assumed the role of the child’s father, providing for the child financially and emotionally and living with the [mother] and their other children as a family unit consistently for the entirety of the child’s life,” he added.

Though the parents agreed that the putative father was, in fact, the child’s biological parent, the Family Court “properly estopped [the father] from asserting a claim of paternity in the child’s best interests.”

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Man who faked a gun by holding a finger under his hoodie guilty of first-degree robbery, New York’s highest court rules

A person who fakes  a gun by concealing a hand beneath their hoodie can be convicted of robbery in the first degree, New York’s highest court has ruled.

On Nov. 1, 2011, Charles Smith, a homeless 41-year-old, entered a check cashing store in Queens. The teller, who sat behind bulletproof glass, testified that Smith held something under his sweatshirt at the waistband, asked for money and threatened to shoot her.

Police, summoned by a silent alarm pressed by the teller, apprehended Smith several minutes later as he walked down the street about eight blocks away. Smith had no gun on him. Nothing in the record suggested that Smith possessed any item whatsoever.

At trial, Smith was convicted of robbery in the first degree, which New York defines as forcible stealing accompanied by the defendant’s using or displaying what is, or appears to be, a firearm. The appellate court affirmed the conviction, finding that the prosecution established that Smith displayed what appeared to be a firearm while attempting to commit the robbery.

The Court of Appeals agreed. “A victim may reasonably believe that a gun is being used, on the basis of conduct that makes it appear that the defendant is holding a gun, regardless of whether the defendant makes a movement while addressing the victim or keeps his hand concealed throughout the encounter in a manner and location suggesting the presence of a gun,” Judge Eugene Fahey wrote on behalf of five of his colleagues in a ruling decided on March 28.

Oddly, Smith did not avail himself of a defense provided by the law, which allows a defendant to ask the jury to consider reducing the charge to second-degree robbery if the firearm (or what appeared to be one) was, in fact, not a loaded weapon.

The court added that “the precise nature of the object that a defendant displays is not dispositive when analyzing whether a defendant displayed what appeared to be a firearm,” and that the court has affirmed convictions where a defendant used a toothbrush or a towel wrapped around his arm to simulate a gun.

“The state must prove that (1) the defendant ‘consciously display[ed] something that could reasonably be perceived as a firearm,’ and (2) it ‘appear[ed] to the victim by sight, touch or sound that [the victim was] threatened by a firearm,” Fahey noted. “We concluded that ‘when both of these elements are satisfied… the true nature of the object displayed is, as concerns criminality, irrelevant.’” [citations omitted]

Misconstruing the statute

That test, however, misconstrues the law, said Judge Rowan Wilson, who noted that “without the guidance of the legislative history, the [statute] could be interpreted, and has now been by this court, to allow unarmed persons with a hand in a pocket to be charged with the same crime as a robber who fired shots.”

The legislature, when it revised the robbery statute in 1969, intended “that the display of something that was or looked very much like a real firearm was essential to conviction” for either first- or second-degree robbery, Rowan wrote, explaining:

“The statutory language makes sense only in the context of the legislative history: that the problem addressed by the statute was the evidentiary difficulty of proving that an actual gun was loaded and operable – not anything having to do with enhanced fear of the victim.”

Despite that aim, the Court of Appeals has departed from the legislative intent, he noted. “A homeless man walks into a check-cashing store,” Rowan wrote. “This sounds like the start of a bad joke, but instead is filled with pathos.”

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Insurer can re-file $100 million mortgage lawsuit against Bear Stearns: New York appeals court

An insurance company that has charged an erstwhile Wall Street investment bank with lying on an application for insurance can file a new legal pleading after the first one was dismissed, a New York appeals court has ruled in a decision that highlights fallout from the financial crisis eight years on.

In 2006, Bear Stearns & Co. approached CIFG Assurance North America about purchasing insurance in connection with two collateralized debt obligations (CDOs), which held bundles of mortgages that varied in their risk.

Bear Stearns, which was acquired in 2008 by JPMorgan after the former failed amid a run on the bank by customers, allegedly assured CIFG that the mortgages that went into the securities would be selected by managers acting independently of Bear Stearns and in the interest of long-term investors. While that assurance led CIFG to insure the securities, the company says, Bear Stearns itself allegedly chose the collateral, which according to the insurer, consisted of risky mortgage-backed securities from the bank’s own books, and then bet on the portfolios to fail. (For more on that type of thing, see “The Big Short.”)

A trial judge dismissed the lawsuit with prejudice (meaning permanently) because CIFG’s court papers contained insufficient information about the insurance policies and the circumstances under which they were issued. The court found fault with a failure by CIFG to describe the terms of the policies, the dates they were issued, the period of time they covered, the parties to the contracts, the beneficiaries, or any information about so-called credit default swaps that would guarantee the CDOs. (In the context of the transaction, CIFG insured the credit default swaps, which, in turn, guaranteed notes issued by the CDOs.)

But while the trial judge properly dismissed the lawsuit, she erred in not allowing CIFG to re-file it, the state’s Appellate Division ruled on Nov. 29. “A request for leave to amend a complaint should be ‘freely given, and denied only if there is prejudice or surprise resulting directly from the delay, or if the proposed amendment is palpably improper or insufficient as a matter of law,’” Judge Judge Rosalyn Richter wrote on behalf of a five-judge panel. [citations omitted] Further, “[a] party opposing leave to amend must overcome a heavy presumption of validity in favor of [permitting amendment.]”

According to the panel, CIFG, which in July merged into Assured Guaranty, asserted that it paid more than $100 million pursuant to the policies but did not identify to whom the payments were made, or the events that triggered them.

Still, CIFG alleged on appeal that Bear Stearns created the CDOs to transfer high risk assets from its own books to other investors and knew that the market would require that the senior notes issued by the CDOs be insured. CIFG also alleges that Bear Stearns misrepresented repeatedly that the CDOs’ portfolios would be selected by managers independent from Bear Stearns. The specificity of those allegations entitle CIFG to file its lawsuit anew, the panel said.

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Animal shelter not liable for dog attack on owner where owner had opportunities to observe animal’s aggressiveness

An animal shelter that fails to warn someone who adopts a dog of the animal’s aggressiveness is not liable for injuries when the dog later attacks the owner if the shelter’s negligence was not the cause of those injuries.

Though the North Shore Animal League America neglected to warn the owner that the dog had previously bitten someone in the face, the animal’s displays of aggressive behavior in the first three months that the owner brought it home gave the owner sufficient knowledge of the dog’s vicious tendencies, a state appeals court in Brooklyn ruled in a decision dated Aug. 17.

The ruling overturned an order by a trial judge who permitted the lawsuit to proceed based on the owner’s claims of negligence and breach of warranty implied by the adoption agreement.

The parties agreed that after the owner adopted the dog on May 19, 2012, the dog acted aggressively, including growling when the owner attempted to feed it. Eight weeks later, the dog bit the owner’s hand when she tried to retrieve a cookie from the floor, about seven weeks before the dog allegedly bit her in the face.

The weeks between the first bite on July 13 and the attack that followed “gave the plaintiff sufficient knowledge of the dog’s vicious propensities before she was bitten again on September 3, 2012,” wrote four judges of the Appellate Division’s Second Department. “Similarly, once she knew of the dog’s vicious propensities, the plaintiff was in the best position to take precautionary measures to prevent harm to herself and others.”

While New York law has held for two centuries that the owner of a domestic animal who either knows or should have known of that animal’s vicious propensities will be liable for harm the animal causes as a result, in this case the owner’s becoming independently aware of the dog’s tendencies meant that the shelter’s alleged failure to advise the owner of them “was not a proximate cause of her injuries,” the court added.

According to the court, the trial judge should have dismissed both the claim of negligence against the owner and the contention that the owner violated a warranty that the dog was fit to be a pet. Even if the adoption of an animal from a shelter were a transaction to which a so-called warranty of merchantability applies, the owner failed to notify the shelter of the dog’s propensities within a reasonable time after she discovered or should have discovered them, the court ruled.

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Law that allows owners of property that lies on border between school districts to choose school does not apply to condominiums, court rules

A New York law that allows the owner of property intersected by a boundary between two school districts to choose which school to send their children to does not apply to condominiums, a state appeals court in Brooklyn has ruled.

The decision means that owners of apartments in a 28-unit building in Bronxville cannot enroll their children in schools in Tuckahoe public schools, a top system in Westchester County.

Owners of apartments in the building testified at trial that they paid school taxes to Tuckahoe for nearly three decades and relied on representations from officials in the district that the right to select their school was available to them. The jury sided with the owners but the trial judge, at the urging of the district, set the verdict aside and entered judgment in the district’s favor.

The ruling on appeal turned on interpretation of New York’s education law, which denotes two circumstances when a homeowner may choose their child’s school: when a boundary between districts divides a dwelling or when the boundary crosses property that an owner-occupied single-family home is located on.

The owners alleged that the boundary crossed property that the condo association owned in common. (The boundary did not, they acknowledged, run through their individual units.) That led the appeals court to side with the district.

“Here, the plain language [of the law] and its legislative history demonstrate that the statute is applicable only where property is improved by one single family dwelling unit, and not multiple single family dwelling units, and where the school district boundary line intersects property that the dwelling unit is located on,” wrote Justice Cheryl Chambers on behalf of the Appellate Division’s second judicial department in a decision dated July 20. “The [trial court] properly determined that the subject 28-unit condominium complex is not ‘an owner-occupied single family dwelling unit’ located on property intersected by a boundary line within the meaning of [the law].”

The court also rejected the owners’ contention that they relied to their detriment on representations of district officials, finding no basis for concluding that district officials had engaged in any “wrongful or negligent conduct” or otherwise misled the owners.

The ruling may have consequences for the value of the owners’ apartments. Tuckahoe, which sites between White Plains to the north and New York City to the south, is one of the state’s safest cities, according to a survey last year by ValuePenguin, a personal finance website, which also noted Tuckahoe’s walkability and commuter-friendliness.

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Why New York’s attorney general has a case against DraftKings and FanDuel

New York Attorney General Eric Schneiderman made news on Tuesday when he ordered FanDuel and DraftKings to stop accepting wagers in the state.

Both of the daily fantasy sports sites allegedly run afoul of New York law, which prohibits bookmaking that profits from illegal gambling activity, according to Schneiderman.

The cease-and-desist order adds to the scrutiny faced recently by both leagues, which call their contests games of skill, citing as support a federal law passed in 2006 that excludes fantasy sports from the definition of the term “bet” or “wager.”

Schneiderman’s office thinks otherwise. In a letter to FanDuel (a nearly identical version went to DraftKings), Kathleen McGee, chief of the attorney general’s Internet bureau, wrote:

“Our review concludes that FanDuel’s operations constitute illegal gambling under New York law, according to which, ‘a person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence.’

FanDuel’s customers are clearly placing bets on events outside of their control or influence, specifically on the real-game performance of professional athletes. Further, each FanDuel wager represents a wager on a ‘contest of chance’ where winning or losing depends on numerous elements of chance to a ‘material degree.’”

The Empire State classifies as gambling games that involve a significant amount of chance. As David Apfel and Andrew Kim of the law firm Goodwin Proctor noted in a column last April, most fantasy contests involve some element of chance. The degree matters.

The federal law that excepts fantasy leagues from the definition of Internet gambling does nothing to upend state laws that prohibit, allow, or regulate gambling, leaving the leagues to navigate the variations in laws governing gambling in each state.

Currently DraftKings, FanDuel, and other fantasy sites operate in 45 states that allow games with some element of chance so long as skill predominates.

But elements of daily fantasy sports—significantly both the dailiness and fact that prizes vary with the number of participants—suggest that chance may outweigh skill in the outcome. According to Apfel and Kim:

“Many states distinguish between entry fees and bets, and have a clear law stating that paying to play in a game or contest for a prize is perfectly lawful, provided the prize has nothing to do with the number of entrants. Where a game’s prize is set in advance and does not turn on how many individuals enter the game, these states permit the game to proceed. But where prizes consist of a percentage of the entrance fees or are otherwise dependent in whole or in part on the number of participants, the laws in these states treat the otherwise benign entry fees as illegal bets or wagers.”

The frequency of the contests suggests that playing daily fantasy is less about drafting well—a skill that tests entrants’ ability to size up the skills of players they draft for their fantasy teams, an activity akin to what professional sports teams do as part of their business—than about luck.

Dustin Gouker, who covers the daily fantasy industry for Legal Sports Report, put it this way recently:

“There are thousands of contests that you can choose to enter on a variety of sites, with entry fees from 25 cents to thousands of dollars. Those buy-ins are how daily fantasy sites make money; they take a percentage of each entry fee. The biggest contests routinely pay out millions of dollars.

Does it sound like gambling, on its face? Gambling can be defined as wagering money on an uncertain outcome — like, say, a last-minute fumble that wins a player more than a million dollars. Sure sounds like daily fantasy fits the bill.”

A lot of money rides on the distinction. FanDuel and DraftKings each are valued at more than $1 billion and count among their investors the NBA, NBC Sports, Google, and Time Warner/Turner Sports (FanDuel), and Major League Baseball; Robert Kraft, who owns the New England Patriots; Jerry Jones, owner of the Dallas Cowboys, and Fox Sports (DraftKings).

Together the companies have 1.1 million active players in the Empire State, which houses 12.8% of the fantasy sports market, according to the Times. Being shut out of New York would cost the leagues a combined $35 million in revenue per year.

Then there’s the ad spending. FanDuel and DraftKings have spent more than $220 million since August, as anyone who has watched sports on TV or the Internet during that time knows. Fox Sports’ investment in DraftKings came with a promise by the fantasy site to spend $250 million on ads with the network over the next three years.

Judging by their investments, the investors thus far have concluded that benefits of backing the companies outweigh the risks. For the leagues, daily fantasy sports translate to viewers for games. Nearly two-thirds of daily fantasy players say they watch more live sports as a result of fantasy play, according to the Fantasy Sports Trade Association, an industry group.

Both DraftKings and FanDuel are pushing back against the charges by Schneiderman. DraftKings said in a statement it “will examine and vigorously pursue all legal options available” to continue operations in the Empire State, and accused the attorney general of failing to “understand our business or why daily fantasy sports are clearly a game of skill.”

“Fantasy sports is a game of skill and legal under New York State law,” echoed FanDuel.

Of course, a larger threat to the companies may come less from what happens in New York and more from what happens if other states follow Schneiderman’s lead. Last month, regulators in Nevada ordered daily fantasy sites to stop accepting wagers until they obtain a gambling license. The Department of Justice reportedly is investigating the sites, too.

Both DraftKings and FanDuel say they welcome government regulation. Officials in some states seem inclined to agree. Massachusetts Attorney General Maura Healey said on Wednesday that daily fantasy sites constitute “a form of gambling” but added that “it’s important to get beyond that.”

“Let’s focus on the issues, let’s focus on protecting consumers, and let’s set out some really robust standards for how this industry should operate, if it’s going to operate here in this state,” Healey told MassLive.

Healey’s suggestion may represent a lifeline. For those in the business of daily fantasy sports, a rule book soon may seem like the safest bet of all.

 

 

 

 

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Warrant that police did not know about no defense against false imprisonment claim, New York court rules

The police cannot rely on a warrant they did not know about to later provide a legal basis for an arrest, a New York State appeals court has ruled.

The appeal arose in connection with the arrest of Malvin Omar Urena, who was arrested without explanation nearly two years ago while standing with friends in the courtyard of his apartment building in the Bronx.

Police later charged Urena with interfering with a so-called buy-and-bust operation by shouting “Police, police, police.” He was detained for more than a day before the District Attorney’s office declined to prosecute, citing a lack of probable cause for his arrest.

Urena later sued the city for false arrest and imprisonment. A trial judge dismissed the claims, finding that a warrant issued in December 2011 for Urena’s arrest provided a basis for police to apprehend him.

Not so, says the court’s appellate division.

“Since the police were unaware of the warrant when they arrested plaintiff, the arrest cannot be found to have been based on the warrant,” wrote a panel headed by Associate Justice Angela Mazzarelli in a decision published Friday.

“Plaintiff correctly argues that the warrant that had been issued for his arrest in December 2011 does not render his May 2013 arrest ‘privileged’ so as to preclude his claims,” the panel added.

In general, the law permits police to arrest suspects without a warrant provided the police have probable cause. That means there’s a reasonable basis for finding that a crime has been committed.

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Press for advantage, act ethically, avoid spinachy

For the second time in a year I’m studying for a test that constitutes part of admission to the New York bar.

This one goes by the name of Multistate Professional Responsibility Exam (MPRE). It has 60 multiple-choice questions and tests knowledge of the rules of professional and judicial conduct.

Alert: reading about the bar exam may feel, to borrow a word from the novelist (and lawyer) Ayelet Waldman, “spinachy.”

I had forgotten about the MPRE when I set out a year ago to pass the bar exam and apply for a law license here in the Empire State. Last fall, I received a letter advising me that I passed, but the letter went on to say that the examiners would hold off on certifying me for admission until I passed the MPRE too.

Oh. That.

Thus, I’m studying for the MPRE, which takes place on March 28. Spinachy. Still, the material illuminates something about the law that appeals to me.

For example, you may have heard it said that a lawyer should represent his or her client zealously. That matters in our adversary system, which assumes that opposing sides, represented zealously within the bounds of law, will produce justice.

However, a lawyer also owes a duty of candor to the court. According to the rules, an attorney is subject to discipline for knowingly failing “to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”

Suppose you represent a client in a New York court, and your opponent fails to call the court’s attention to a case from the state’s Court of Appeals that directly counters a position taken by your client. You must cite the case.

That doesn’t mean that you have an obligation to volunteer facts that are harmful to your client – we trust the opposing side to handle that – or that you have to cite a case from Virginia, for example, here in New York. But it does mean that you have a responsibility to the tribunal that transcends even your duty to your client.

In short, press for advantage but remember that you have a responsibility to act ethically.

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Lindsay Lohan lawsuit a publicity ploy, Grand Theft Auto V maker tells court

The maker of a popular video game has asked a court to scrap a lawsuit filed by Lindsay Lohan, charging that the actress is pursuing the claim for publicity purposes.

Lohan’s lawsuit lacks merit and represents a misuse of the legal system, Take-Two Interactive Software, the maker of Grand Theft Auto V, asserts in court papers filed August 20 with a Manhattan trial court.

Any resemblance between the fictional character Lacey Jonas in Grand Theft Auto V and Lohan is a form of legally protected artistic expression and not subject to a New York law that prohibits the use of a person’s image for commercial purpose without her consent.

Lohan sued Take-Two in July, charging that the company based the Jonas character on her image and lifted events in Jonas’s story from Lohan’s own life in violation of her publicity rights.

Last year the actress lost a similar lawsuit against Armando Christian Perez, a rapper known as “Pitbull,” whom Lohan charged used an arrest and other events from her life in a song lyric without her consent.

Grand Theft Auto, which was released roughly a year ago for use on the Xbox 360 and PlayStation 3 platforms, follows a story set in the fictional city of San Andreas. The game’s characters include Jonas, who asks another character to help her escape the paparazzi.

In its filing, Take-Two points to a line of rulings that separate works of fiction from commercial appropriation of a person’s likeness. “Works of fiction like Grand Theft Auto V cannot constitute ‘trade’ or ‘advertising’ within the meaning of the statute,” Take-Two asserts.

In support of its position, Take-Two points to a line of cases, including a $100 million lawsuit filed in 1999 by Michael Costanza, a New York man who claimed unsuccessfully that creators of “Seinfeld” based the character George Costanza on his life.

“Even had Ms. Lohan not lost the Perez case last year, is case would be frivolous because the principles on which Perez relied are so well-settled,” asserts Take-Two, which asked the court to award sanctions against Lohan for filing what Take-Two contends is baseless claim.

Some experts agree. “There’s a long line of cases in New York that say the use of a fictionalized character does not give rise to a claim,” Evan Gourvitz, an attorney with Ropes & Gray in New York who specializes in intellectual property, told Forbes. “Even the thinly disguised use of a person’s identity is not illegal so long as the actual name of the person isn’t used.”

Though Lohan had pointed to a “side-mission” for the Jonas character that the actress charges mirrors her own life, Take-Two contends that the Lohan is reacting to statements by a blogger and not to representations by the game maker.

Lohan’s lawsuit comes amid claims by celebrities who charge companies with wrongfully appropriating their likenesses. In April, the actress Katherine Heigl sued Duane Reade after the retailer posted on Twitter and Facebook paparazzi photos of Heigl leaving one of its stores. Heigl and the company reportedly have settled the suit for undisclosed terms.

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Checklist for police encounters: A camera and the Constitution

The tragic deaths of Eric Garner, an unarmed Staten Island man who died on July 17 as a result of a police chokehold, and Michael Brown, an unarmed black man in Ferguson, Missouri who died on August 9 after being shot by a white police officer, have prompted at least one group here in New York City to teach best practices for filming police encounters.

The group, Peoples’ Justice, is the subject of a story by Reeves Wiedeman in the latest issue of The New Yorker. At a workshop put on by Peoples’ Justice that Wiedeman attended, Aidge Patterson, a coordinator with the group, began the session with a quiz that included the following exchange with a 14-year-old filmmaker:

“True of false,” Patterson said. “If you are stopped or arrested, it’s best to answer all the cop’s questions.”

“When I watch ‘Law & Order,’ they say don’t talk to the cops unless you got a lawyer,” Derek, one of the teens, said.

“Right!” Patterson said. “I’m glad they’re dropping some actual knowledge there.”

The dialogue continues, with Derek recalling an encounter with police, who ordered the teens against a wall. Could the police legally look through the teens’ pockets, Derek wondered.

“That’s a search,” Patterson said, drawing a distinction between the city’s stop-and-frisk practice and a search, which requires probable cause.

“But what if they keep going?” Derek said. “Because some cops just don’t care.”

Consequently, the cameras. Peoples’ Justice canvasses neighborhoods with a police scanner and film crews in the hope of chronicling encounters.

Brown’s death and the events in Ferguson that followed highlight how a contemporaneous recording can aid law enforcement and the public in evaluating the lawfulness of a stop. Plus, the public has a First Amendment right to record police officers.

As the workshop also suggests, knowing your rights matters too, especially the protections that the Constitution guarantees to individuals. With that in mind, and a disclaimer that the following does not constitute legal advice, here are some of the basics.

Can the police order you to stop?

Yes, the police can stop and briefly detain you for investigative purposes if they have reasonable suspicion – meaning specific and articulable facts – of wrongdoing. As Patterson notes, the police also can detain you if they have probable cause to think that you’ve committed a crime.

Must you stop if the police ask you to?

Generally yes, but what matters is whether you’re free to leave. That depends on whether you’ve been seized. A seizure occurs when, based on all the circumstances, a reasonable person would not feel free to terminate the encounter or to decline to answer an officer’s questions.

In New York, pursuit by the police is itself a seizure. So is a police officer’s twice ordering you to “hold on a second.” Of course, you’ve also been seized if you are physically restrained.

As a practical matter, if a police officer asks you to stop, and you don’t feel free to terminate the encounter, you’ve been seized.

Can the police look through your pockets?

No, unless you’ve been arrested. If the police detain you (without arresting you) because they think that wrongdoing is present, they can pat down, or frisk, your outer clothing if they reasonably believe that you possess a weapon. If the police encounter something that feels like a weapon, they can reach into your clothing to remove it.

In most states, if the officer feels an object who’s contour immediately suggests contraband (e.g., a weapon or drugs), she can seize that as well. In New York, the police can seize an item only if it appears to be a weapon. Thus, absent encountering something that feels like a weapon, the police cannot reach into or rummage through your pockets.

However, if the police arrest you, they can search your pockets, your clothing and, in most states, any containers within your immediate control. In New York, the police can only search nearby containers if they suspect that you are armed.

What should you do if you are stopped?

Remember that you have no obligation to say anything. In fact, anything you do say can be used against you later. Note that in most states, including here in New York, the police can ask for your name and identification, which you cannot lawfully refuse to provide. (If you’re later arrested, the police also can ask you routine booking questions that you have to answer.)

If you feel you are detained by the police, ask, respectfully, if you are in custody. If the answer is no, then, following a frisk (assuming the police reasonably believe you may be carrying a weapon) you are free to leave.

What are your rights if arrested?

An arrest triggers a whole series of rights under the Fifth Amendment. Many will be familiar to anyone who’s watched televised police dramas.

You have the right to remain silent. Anything you say can be used against you in court. You also have the right to the presence of an attorney. If you cannot afford an attorney, one will be provided to you if you so desire.

This so-called Miranda warning matters in several ways. First, the police must read it to you if you’re arrested. The failure to read you your rights means that prosecutors generally cannot use anything you later say against you at trial.

Second, a Miranda warning triggers other protections, chiefly the right to an attorney. If you ask for an attorney, all questioning must stop. Immediately. But your request must be unambiguous and specific, e.g., “I request the presence of my attorney and respectfully decline to answer any questions without my attorney present.”

In a future post I’ll review the right to counsel.